The Commercial Secretary to the Treasury (Lord Sassoon): My Lords, all government departments will ensure that they take account of the impact of reductions in their spending on women, disabled people and people from ethnic minorities, in line with their legal obligations. For areas for which the Treasury has direct responsibility, work is under way to ensure that any relevant impacts are considered before decisions are taken. The Treasury will also be mindful of the overall impact on equalities of the high-level decisions that will be taken in the spending review.
Baroness Royall of Blaisdon: My Lords, it is very welcome news that the Treasury and other departments will ensure that an assessment of the impact on these groups is made before the CSR, but what evidence is there that an assessment took place before the emergency Budget on 22 June? A lot of vulnerable people, including many women, people from ethnic minorities and disabled people, have been hit very hard by the decisions that were taken on that date.
Lord Sassoon: My Lords, as I am sure the noble Baroness is aware, there is a regulator, the Equality and Human Rights Commission, in this area. If it has any doubts about whether government departments have followed their duties under the relevant legislation, it is up to it to take appropriate action.
Baroness Gould of Potternewton: Will the Government require public bodies, including local authorities, to conduct an impact assessment as they develop their policies over the next few months, which will be quite difficult for them? What are the Government doing to make sure that that happens? Are they producing guidance for public bodies to make sure that they follow the law absolutely strictly and do not take any actions which are disproportionate? If so, it would be helpful if the Minister could put that guidance in the Library of both Houses.
Lord Sassoon: My Lords, I can assure the House that the Government Equalities Office publishes guidance to departments. It is up to departments how they carry out the legal responsibilities under the three relevant Acts. Equality impact assessments are one way in
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Lord Lester of Herne Hill: My Lords, those of us who worked hard to get the Equality Act on to the statute book will especially welcome the Minister's assurances about compliance with the obligations in that Act. Did I understand the Minister to be encouraging the Equality and Human Rights Commission to consider using legal powers? I hope not, because does not the Minister agree that it is very important that after 20 October the Government can demonstrate to the public, with evidence, that they have fully complied with their obligations?
Lord Sassoon: I thank my noble friend for that question, which allows me to clarify that the Equality Act 2010 does not apply to decisions in the spending review, because the relevant provisions in this area are not expected to take effect until 2011. For the avoidance of doubt, the Acts which impact now are the Sex Discrimination Act 1975, the Race Relations Act 1976 and the Disability Discrimination Act 1995. On the question of the Equality and Human Rights Commission, which is the regulator in this area, like all sensitive regulators it has a range of ways of dealing with situations, from private conversations to seek clarification through to the more formal routes of issuing compliance notices and, ultimately, legal proceedings. I am of course not encouraging or discouraging the commission from doing anything that it believes appropriate, but I do not anticipate that anything such as compliance notices or legal proceedings should be necessary.
Lord Low of Dalston: My Lords, can the Minister assure us that the Government will put in place procedures for keeping the impact of the measures that are announced in the comprehensive spending review under ongoing review, so that the continuing impact on women, ethnic minorities and people with disabilities can be assessed and remedial action taken, if necessary?
Lord Sassoon: Government departments will of course fully comply with their obligations, which are to have due regard of the impact of their policies and of the way in which they deliver their services. That implies an ongoing responsibility.
Lord Ashley of Stoke: My Lords, there seems to be little point in assessing the value and impact of the cuts if the cuts have not been made. Will the Government make a further announcement after the cuts, so that the impact can be accurately assessed?
Lord Sassoon: I assure noble Lords that the impact will be taken fully into account in accordance with the statutory provisions. The assurance is there that government departments will indeed have made the assessment fully by the time that any spending proposals come forward, whether in the spending review or in any other context.
Baroness Greengross: My Lords, in declaring an interest as a member of the Equality and Human Rights Commission, can the Minister make an
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Lord Sassoon: My Lords, this gives me an opportunity to restate the Government's overall commitment to fairness in the whole construction of the overall Budget framework and the spending review. That was made very clear by my right honourable friend the Chancellor at the time of the Budget. Fairness right across all sections of society is at the heart of the policy making of this Government.
To ask Her Majesty's Government whether they will review the regulations regarding enforcement procedures for traffic and parking offences so as to make them effective for cars with foreign number plates.
Earl Attlee: My Lords, we know how difficult it can be for local authorities to use civil enforcement mechanisms against foreign-registered vehicles. We keep the traffic and parking regulations for England under review and we are always willing to consider specific suggestions for improvements, but a definitive solution could be achieved only through international legislation or agreements. The equivalent traffic and parking regulations for Wales, Scotland and Northern Ireland are matters for the devolved Administrations.
Baroness Gardner of Parkes: I thank the Minister. He will know that I asked this Question in April 2008 and that the Minister in replying said that the Government expected conformity in number plates. He said:
"The typeface of number plates has to be substantially the same. If it is not, the police are entitled to investigate and to bring an offence. The issue is important".-[Official Report, 22/4/08; col. 1379.]
Would the Minister consider doing a feasibility or cost-benefit analysis of issuing such plates on arrival in this country of these imported cars with either Arabic, Cyrillic or unreadable plates and charging a bond at the same time so that on departure, on handing the plates in, any amounts owing could be collected more simply?
Earl Attlee: My Lords, I think that when the noble Baroness first asked her Question the Minister was slightly caught out by her supplementary. Since 1983, Q plates are issued to temporarily exempt vehicles, which cannot use foreign plates during their visit because those plates had to be surrendered to the foreign authority before the vehicle left; the number plate is not of an acceptable form-for example, it is in Arabic script; or the vehicle came from a country where such vehicles are not registered, such as a bike in France.
Lord Faulkner of Worcester: My Lords, nobody would wish to catch the Minister out, but I am sure that he is aware of the statement made by his noble friend, who is sitting next to him, the noble Lord, Lord Howell of Guildford, on 28 June this year, which said that the outstanding fines incurred by the diplomatic missions in London in respect of the London congestion charge had reached £36 million by January this year, with the United States, Russia and Japan being by far the worst offenders. Can he give an assurance that it is the view of the present Government, as it was of their predecessor, that the congestion charge should be paid by diplomatic missions in London?
Lord Bradshaw: Would the Minister go for a more imaginative solution? France has just announced that it is implementing a road-charging scheme for lorries and Germany did so two years ago. Why do we keep saying that we will not have a scheme in this country for charging foreign vehicles for using our roads?
Lord Davies of Oldham: Will the Minister reconsider the inadequate answer that he gave to my noble friend a moment ago? This Question is about traffic offences and congestion charges are part of traffic offences. My noble friend asked about the vast sums of money owed by certain diplomatic missions for their offences with regard to congestion charges in London. We want a better answer from the Minister.
Earl Attlee: My Lords, I accept the noble Lord's point. We will exercise pressure on diplomatic missions when they are not paying their fines or congestion charges. However, the noble Lord will understand that it is a difficult problem, which is why the previous Government found it just as difficult as we will find it in future.
Lord Harris of Haringey: Will the Government not make this even more difficult by their indication that they will phase out speed cameras and that they disapprove of speed cameras? It really will not matter whether this is a foreign or British number plate because photographs will not be taken of cars that are speeding.
Earl Attlee: My Lords, we do not disapprove of speed cameras. The use of speed cameras is a matter for local authorities, but the Question is about the difficulty of enforcing our laws against foreign-registered vehicles.
Baroness Ritchie of Brompton: My Lords, I welcome my noble friend Lady Gardner's Question. In my own council ward we have a number of so-called "supercars" that are imported for a few weeks in the summer. The two main problems that cause disturbance to residents and visitors alike are the noise generated by very powerful engines as cars race around the streets and appalling traffic congestion. Kensington and Chelsea Council took some well publicised-
Baroness Ritchie of Brompton: I apologise; I am coming to the question. Neither the council nor the police have powers to deal with the nuisance element. Will the Minister work with local authorities when he is reviewing regulations?
Earl Attlee: My Lords, we will listen carefully to any suggestions that local authorities make about how to solve this problem. They need to remember that there are two problems: first, there is criminality, and with criminal problems it is easier to get the details from local authorities; but when, secondly, there are civil offences, registering authorities overseas are much less willing to give us the data that we need to pursue these civil debts.
The Commercial Secretary to the Treasury (Lord Sassoon): Would anyone else like to answer? The Government consider a range of external views, including those of the Bank of England, when making their assessment of the UK economy and in developing policy. The Bank of England economic forecast in the August inflation report is very clear that the Monetary Policy Committee expects the UK recovery to continue, and its growth forecasts remain higher than those presented at the Budget by the independent Office for Budget Responsibility.
Lord Barnett: I think I thank the Minister for that Answer, but he forgot to tell us what his views are of the Governor of the Bank of England. As he did not, perhaps noble Lords will not mind if I quote something that he said the other day at the TUC conference. He said, and it is worth quoting:
Lord Sassoon: My Lords, for the avoidance of doubt, the "he" that the noble Lord refers to was the Governor speaking at the TUC conference, not me. There is a considerable question about the path to recovery, but what is noticeable about the Bank of England's August inflation report is that it clearly states that there is a reduced downside risk to future growth as a result of the fiscal measures taken in the Budget that have reduced the chances of a sharp rise in long-term interest rates. That is one of the findings of the Bank of England that underpin confidence in the steady growth path on which this economy is now set.
Lord Bilimoria: My Lords, does the Minister agree that the general view is that the Bank of England's economic forecasts are too optimistic? In August 2008, when the recession officially started, it said that growth would stay flat, but we achieved a 6.6 per cent decline. Today, it says that growth is going to be over 3 per cent when the OBR and the CBI are closer to 2 per cent. We hear that the Bank of England has new super economic forecasting computers. Does the Minister think that by the economists changing their crystal balls, the leopards are going to change their spots?
Lord Sassoon: My Lords, forecasting is not an exact science, which is why, among other things, the Treasury looks at a wide range of forecasts. Indeed, the Treasury publishes regularly the whole range of forecasts that are out in the market. The Bank of England, to its credit, annually reviews its own record in forecasting. The noble Lord may look, if he has not done so already, at a detailed analysis, which is in the August inflation report, of exactly how well the Bank of England's previous record of forecasting has gone.
Lord Newby: My Lords, has the Minister read Sir Terry Leahy's comments today? He says that the UK is not heading for a double-dip recession and the economy will be pulled into a stable rebound by the Asian economies. Will the Government redouble their efforts to promote trade with those Asian economies, since they will clearly play a major part in enabling us to grow sustainably in the future?
Lord Sassoon: I am grateful to my noble friend for drawing our attention to the important words of Sir Terry Leahy, the chief executive of our largest retailer. It confirms the remarks of such bodies as the CBI, which now says that the prospect of the UK going back into recession is unlikely, and the ringing endorsement on 27 September of the IMF.
On the second part of my noble friend's question, it is an absolute priority of the Government to do everything we can to promote trade with the Asian and other economies. I took advantage of the House not sitting in September to visit India and the Gulf to do precisely that. Many of my ministerial colleagues have been doing exactly the same thing.
Lord Lea of Crondall: Does the Minister agree that throwing several hundred thousand public servants on to the unemployment register will reduce income tax revenues? Does he also agree that this, in turn, will
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Lord Sassoon: I am not sure I agree with much of the noble Lord's analysis of the situation, other than that a very necessary rebalancing of the economy has to take place. Within 50 days, my right honourable friend the Chancellor came forward with a radical, necessary and tough Budget. There will be painful adjustments as the private sector takes up the slack from the overbloated public sector. That is fully built into the Budget forecasts and the details of the spending cuts will be revealed on 20 October. The great range of forecasters, including the independent Office for Budget Responsibility, expect growth to continue quarter by quarter, with unemployment falling and employment going up.
Lord Carlile of Berriew: Does the noble Lord agree that there is an unhappy contrast to be drawn between, on the one hand, the reluctance of the banks to lend money to small and medium-sized businesses and, on the other, their enthusiasm for paying bonuses for profits? Would the situation not be far more acceptable if bonuses were paid for actions that bring stimulus to the economy and not merely profit to the banks?
Lord Sassoon: The critical question is about how we can see credit continue to flow to UK business, particularly small and medium-sized enterprises which cannot access the bond markets. Therefore it is encouraging that in the latest September data for August, credit conditions continue to improve modestly. That is critical. When it comes to bankers' bonuses, there is unfinished business by both the Financial Services Authority and the Government to see what further action-whether that is disclosure or other measures-is appropriate to make sure that we get a proper balance in this area.
Lord Sassoon: It is a question principally for the Bank of England, which has a clear inflation target, as to what further measures should be taken. I note that the recent IMF assessment is that the current monetary stance and data dependent approach to next steps is the appropriate one.
Baroness Farrington of Ribbleton: My Lords, will the Minister give a guarantee that when the comprehensive spending review statement is made information will be given to the House on the likely impact not only on employment in the public sector but in the private sector as cuts in public spending have been greeted with concern by the CBI and small businesses because of their impact on that sector of the economy?
Lord Sassoon: My Lords, I think we are straying a bit from Bank of England forecasts but I remind the House that the new independent Office for Budget Responsibility will publish updated forecasts on a
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The Minister of State, Foreign and Commonwealth Office (Lord Howell of Guildford): The British Government attach great importance to our relations with the Gulf states and are committed to strengthening our already strong relationship with the kingdom of Bahrain.
We are concerned by increasing tension in the run-up to parliamentary elections there on 23 October. We hope that all sectors of Bahraini society will engage fully in the political process and work to reduce current tensions. We encourage the Government of Bahrain to allow all groups competing in the election level playing fields and to maintain their programme of democratic reforms.
Baroness Falkner of Margravine: My Lords, the noble Lord must be aware of the deteriorating political situation as he has just alluded to it. Is he aware that political activists have been imprisoned, have been denied access to lawyers, that there are allegations of torture and that opposition parties and NGOs which were legal until recently have been banned in the past few days? How do we expect a level playing field in that regard? There is alleged to have been a terrorist plot against the Government of Bahrain which the US, of course, refutes. Will the noble Lord tell the House whether Her Majesty's Government agree that there has been a terrorist plot and how they will consider recalibrating their position with Bahrain should the elections turn out to be a complete sham?
Lord Howell of Guildford: I thank my noble friend for her concern in this matter, which is very proper as we take all allegations of torture extremely seriously. We are aware that allegations have been made in a number of cases. Of course, we are dealing with a long-term situation of great pressure under which Bahraini society has to operate, with pressures from all sides, particularly influence from Iran. Nevertheless, these are extremely worrying allegations. Our ambassador has raised them and has demanded and sought transparency and due process in all cases. They have also been raised at the highest ministerial level and we will continue to pursue our questions about the allegations of torture. I have to say that the Bahraini authorities insist that they have nothing to hide and that there is no evidence of torture. Nevertheless, the allegations remain and we will continue to raise them with the Bahraini authorities.
Baroness Uddin: My Lords, I declare my interest as the vice-chair of the Bahraini APPG. While I accept the noble Baroness's premise as regards some of the
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Lord Howell of Guildford: Yes, I accept that. It is, in a way, ironic that of the two Gulf states that are making most progress on democratic and parliamentary reform-Kuwait and Bahrain-Bahrain should come in for the criticism. Nevertheless, my noble friend is absolutely right to be concerned about the allegations. Torture is unacceptable to us wherever it occurs in the world; and where it occurs among our friends, the very fact that we have friendship and a good relationship enables us to take the matter up in a very frank and effective way. But the noble Baroness is quite right in this regard.
Lord Avebury: My Lords, we are very grateful to the Foreign Secretary for making a telephone call to the Crown Prince about the detention and torture of a British citizen who is among the dozens who have been detained for political reasons. Will the Foreign Secretary make another telephone call to ask the Bahraini ruling family if they will grant permission to the families of the detainees to visit them without having 10 security men standing in the background, and allow their lawyers to visit without being observed? Finally, will the Foreign Secretary ask the ruling family to invite the UN rapporteurs on torture and arbitrary detention to pay a visit to Bahrain to investigate the circumstances?
Lord Howell of Guildford: My noble friend is talking about a particular case and it is quite difficult to talk about the details of an individual case where permission has not been given by the individual for it to be discussed. However, if, as I suspect, he is referring to the case of Mr Al-Hisabi, who has been detained and about whom a lot of allegations have been made, this matter was indeed raised at very high levels-whether by telephone or face to face. Consular access has been offered to the individual because he has dual nationality. In the future, there could be further consular access. I am advised that there will be no problem at all about further access and about the issue that my noble friend raised on the position of the families and their support.
As to visits from outside bodies to examine the situation, I agree that this is possibly a worthwhile idea. I am advised that the Bahraini authorities would not be averse to the right kind of inspection or visit from outside authorities to monitor the truth of the allegations-some of which may have a basis and some of which may be false-and to present the Bahraini authorities' case, which is that there is no real evidence of torture.
Baroness Symons of Vernham Dean: My Lords, I am sure that we all agree that wherever torture occurs it should be condemned in the unequivocal way that the Minister has done, and we welcome that. But Bahrain is a relatively liberal Gulf state: its elections
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Lord Howell of Guildford: I agree with the noble Baroness. This may now be an idea that we are certainly prepared to consider and, as I said earlier, my impression is that the Bahraini authorities themselves would be favourable towards some proposition of this kind. It is certainly something that we will consider putting to them.
The Commercial Secretary to the Treasury (Lord Sassoon): My Lords, before moving the government amendment, I will make some brief introductory remarks to the Committee. At Second Reading, I explained to the House that the Government took seriously the civil liberties concerns that had been raised about the terrorist asset-freezing regime, and that they were committed to striking the appropriate balance between protecting national security and civil liberties. I explained that the Treasury would do further work over the summer, informed by the wider Home Office-led review of counterterrorism and security powers in considering civil liberties safeguards on asset freezing, and that if any government amendments were tabled to strengthen civil liberties safeguards, this would be done in Committee.
I am pleased to say that the Treasury has concluded its consideration of civil liberties safeguards on asset freezing, and has now brought forward amendments to strengthen safeguards in two key areas. First, we have tabled an amendment to raise the legal threshold for freezing assets from "reasonable suspicion" to "reasonable belief", with "reasonable suspicion" only able to be used for interim designations of 30 days. Secondly, we have tabled an amendment stating that challenges to Treasury decisions to impose, vary or renew asset freezes should be heard by the courts under an appeal rather than a judicial review procedure. This ensures that there will be a robust, in-depth review by the courts of the Treasury decisions.
I hope that noble Lords will agree that these amendments address the concerns raised at Second
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While the Government have an overall coherent approach to counterterrorism powers, this does not mean that each power should be subject to the same civil liberties safeguards, as the appropriate level of safeguards will vary depending on the nature of the power and how it is used. In particular, the Treasury and the Home Office agree that there are significant differences between asset-freezing and control orders, and that in consequence the approach that we take on asset freezing reflects the circumstances of this tool and does not need to be aligned with the Government's approach to control orders, which is still under consideration.
I turn in more detail to the government amendments to Clause 2. The clause specifies the circumstances in which the Treasury has the power to designate persons. The Bill contains a provision for the Treasury to make an asset freeze on the basis of reasonable suspicion that that person is or has been involved in terrorism. The Government have tabled amendments to Clause 2, with a series of consequential amendments. These allow the Treasury to make an interim designation using the reasonable suspicion threshold for a period of 30 days. The Treasury can only make a final designation-that is, beyond 30 days-if it has reasonable belief that a person is or has been involved in terrorism. For ease of reference, Amendment 2 is the substantive amendment that raises the legal threshold from reasonable suspicion to reasonable belief. Amendments 29, 30, 31 and 32 permit the Treasury to make an interim designation. The other government amendments in the group are consequential and ensure that other parts of the Bill that referred to designations now refer to initial and final designations.
I will explain why we have tabled these amendments. I note that the noble Lord, Lord Pannick, has tabled an amendment on a similar theme, and I look forward to his remarks as the debate continues. We have retained reasonable suspicion for a 30-day interim period because we recognise that there may be occasions when asset freezes need to be imposed where there is a terrorist threat, but when, for example, investigations are continuing and it may not be possible to meet a higher threshold at the time. This was the case, for example, with the asset freezes against the attempted transatlantic airline bombers in August 2006. In these cases, asset freezes were made soon after arrests, to prevent assets being dispersed to associates of the plotters. The police assessed the freezes to be of significant operational impact.
However, the Government are committed to ensuring that, in protecting the public from terrorism-related threats, civil liberties safeguards are not undermined. For this reason, we intend to raise, after 30 days, the threshold for asset freezes to reasonable belief that someone is or has been involved in terrorism. We believe that maintaining the freeze for only 30 days on the basis of reasonable suspicion provides a reasonable period in which operational partners can gather further information and present a case to the Treasury to maintain an asset freeze against the higher legal threshold. Alternatively, if a case cannot be made against the higher legal test, the asset freeze will be dropped.
The test of reasonable belief brings terrorist asset freezing in line with the test used for Treasury powers to freeze assets under the Anti-terrorism, Crime and Security Act 2001, for imposing financial restrictions under the Counter-Terrorism Act 2008 as well as for the test for Home Office powers to proscribe terrorist groups. The proposals are also in line with a number of other countries' asset-freezing powers.
The test of reasonable belief is also consistent with the preventive rationale of the United Nations Security Council resolution to help to prevent terrorist acts by stopping funds or economic resources being used or diverted for terrorist purposes and the international standards that were set by the Financial Action Task Force, which require asset freezes to be imposed,
Amending the Bill in this way will allow the UK to maintain an effective asset-freezing regime that meets national security requirements, is consistent with international obligations and standards and meets legitimate civil liberties concerns that reasonable suspicion is too low a threshold for freezing for anything other than a very short period.
The Government do not support moving to a higher legal threshold than reasonable belief, for example by imposing asset freezing only on those who have been convicted of a terrorist offence. Such a move would undermine the preventive nature of the regime and therefore limit the use of asset freezing to protect against national security risks. It would also be incompatible with international best practice and the aims of the United Nations Security Council resolution.
Finally, I should note that we will continue to require the Treasury to consider an asset freeze-be it an interim designation on suspicion or a designation requiring reasonable belief-to be necessary to protect members of the public from the risk of terrorist acts before they can be implemented. The amendments will ensure that an asset freeze will be made only where it is necessary and proportionate to do so and they balance the effect on the individual and the need for public safety. I beg to move.
Lord Lloyd of Berwick: Perhaps I may be permitted to start the ball rolling before my noble friend Lord Pannick speaks. I am sure that your Lordships are waiting to hear his views, but as I did not have an
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The government amendments were published only on Monday, so I saw them only yesterday. We have not had long to reflect on them, but one thing that is clear is that the Government have listened to what was said on Second Reading, they have studied carefully what was said in the excellent report of the Constitution Committee and they may even have had a preview of what the Home Office review will say on the subject. On any view, the Government have kept an open mind on the matter up till now, which should surely be a subject for congratulation. If I may say so from the safety of the Cross-Benches, that makes a welcome change.
The amendments now proposed are so fundamental that at this stage we need another Second Reading debate, particularly in relation to what is proposed in the appeal to the High Court on fact as well as on law. That is a fundamental change of huge importance, and we will come to that later.
On the matters covered by this group of amendments, I start with the new interim designation order. That seems to be the logical starting point, although of course it will come later chronologically as we go through the Bill. There may be those in the Committee who will object to "reasonable suspicion" in relation to the interim designation order. Some may prefer "reasonable belief" in that context, as well as in the context of the final designation order. I do not share that view. Reading the new clause took me back to what I wrote in 1996 on page 86 of my report. I have many spare copies of that report at home if anyone would like to see one. That was of course long before 9/11 and long before Resolution 1373. I said then that there should, exceptionally, be a power to freeze assets before the suspect is arrested or charged. It should be open to the police to go before a judge ex parte-that is, without notice to the defendant-and satisfy him that they have reasonable grounds for suspecting that the defendant is about to commit a terrorist offence. I recognised then that that would be a radical step to take but I said that it was justified because of the paramount need to neutralise terrorist funding before the terrorist offence is committed.
Therefore, I have no difficulty at all with "reasonable suspicion" in relation to the interim designation order. The problem as I see it is somewhat different. If the designee, if I can call him that, is able to go before the judge as soon as he has notice of the order, as is now intended, would it not be altogether more sensible for the judge to make the order in the first place? That is how it is done in other branches of the criminal law, so why not here? What is the reason for the Treasury making the order itself rather than applying in the ordinary way, with which we are all familiar, to the judge? So much for interim designation orders.
I turn to the final designation order. Of course I welcome the change from "suspect" to "believe", although in practice there may not be quite as much difference between those two things as is sometimes supposed. The real problem here, as indeed in the case of interim designation orders, is that, a fortiori, if we are to
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"Thus what the Resolution requires is the freezing of the assets of criminals. The natural way of giving effect to this requirement would be by freezing the assets of those convicted of or charged with the offences in question. This would permit the freezing of assets pending trial on a criminal charge, but would make the long-term freezing of assets dependent upon conviction of the relevant criminal offence to the criminal standard of proof".
As I understood the noble Lord, Lord Sassoon, he does not accept that, and he does not accept that that is the view formed by the Supreme Court. But with great respect, it seems to me that that was its view. It comes to this. The noble Lord has gone a very long way to meeting all the problems that we raised on Second Reading and that have been raised elsewhere. But I ask him to go one step further. Can he agree between now and Report that the final orders should be made by a judge on the application of the Treasury? If so, he will have my complete support on that occasion. And more importantly, it will be in line with what I believe was the intention of the Supreme Court in Ahmed.
Lord Pannick: The reasonable suspicion criterion was a feature of the Bill that caused concern both in your Lordships' House and elsewhere. Concern was expressed during passage of the temporary provisions Bill earlier this year; expressed by your Lordships' Constitution Committee; and expressed by a number of your Lordships in Committee. The concern, quite simply, was that the Government should not enjoy the power to freeze a person's assets, with all the damage and inconvenience that that involves, unless they have at least a reasonable belief that the person concerned is involved or associated with terrorist activity. That is why I tabled Amendment 3, to which the noble Baroness, Lady Hamwee, has added her name. It would substitute reasonable belief for reasonable suspicion.
I am very pleased that the Minister has listened to the arguments. He has accepted that, other than for a temporary period of 30 days, assets should be frozen only when the Government believe, on reasonable grounds, that the individual is involved with terrorist activity. I am sure that all noble Lords will be grateful to the Minister and his team for their response to the expressions of concern, and for the care with which they have drafted and presented these amendments. For my part, I accept that it is appropriate for the Government to have an interim power to freeze assets for a period of 30 days simply on the basis of reasonable suspicion. I accept that because there may be cases when they have only limited information and reasonably wish to act to prevent dissipation of the assets while investigations are concluded. A period of 30 days
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There are three points of detail in relation to the amendments in this group. First, it would be desirable for Amendment 29-the new clause which confers power on the Treasury-to make an interim designation to specify the purposes for which the power may be exercised. I am concerned that the drafting does not identify the specific mischief that the interim designation for 30 days is designed to meet. Subsection (1) of the proposed new clause simply repeats the substantive criteria for a final designation save that the criterion for the interim designation is reasonable suspicion rather than reasonable belief.
It is surely necessary to specify in what circumstances the Treasury has a power to make an interim designation. Surely new subsection (1) in Amendment 29 should specify a third precondition after conditions (a) and (b), something to the effect that the Treasury considers that it does not have the information available to reach a conclusion on whether "they reasonably believe that the person concerned satisfies the criteria in Clause 2(1)" and that "the Treasury consider that there is an urgent need" to impose the restrictions for an interim period, while such a conclusion is reached. I invite the Minister to consider that matter before Report.
My second point relates to new subsection (3) in Amendment 29. That prevents the Treasury from making more than one interim designation of the same person in relation to the same evidence. Such a restriction is of course needed to prevent repeated interim designations of the same person for more than one period of 30 days, but I invite the Minister to reconsider the phrase, "the same evidence". Surely he cannot intend that a second interim designation could be made of the same person simply because there is now an additional piece of evidence which adds nothing of substance. I suggest that it would be preferable to refer in subsection (3) to "substantially the same evidence".
I suggest that the Treasury should be held to a much higher standard. Surely, if the Treasury has imposed an interim designation for 30 days, and the interim designation has expired, so that the restrictions on the individual are removed, it should be required to take all reasonable steps to ensure that all those notified of the interim designation are notified that it has ended. After all, the interim designation will not have led to a final designation because, although there was reasonable suspicion, there is no basis for any reasonable belief that the person concerned is
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Subject to those drafting points, to which we may need to return on Report, I am very pleased that the Government have confined final designations to cases of reasonable belief, and have confined interim designations based on reasonable suspicion to a period of 30 days.
Baroness Hamwee: My Lords, I congratulate the noble Lord, Lord Pannick, on his energy in tabling Amendment 3 relatively quickly. When I opened all the papers after a break in the summer, I thought that I had better check to see whether any amendments had been tabled, having written "belief" as the first thing in my notes. I found that the noble Lord had got there before me. I am delighted that he did and delighted that the Government have taken the point. It was one of the major points concerning my noble friend Lady Falkner and me, but not the only one. Some of the points that have already been made, particularly by the noble and learned Lord, Lord Lloyd of Berwick, we will come to in later groups of amendments. I, too, welcome what the Government have done so far.
I shall start with a technical point. I hope that the Government and the House will accept that noble Lords may wish to look at amendments to these government amendments at the next stage. I have tripped over this in the past when I have been told that I had accepted a government amendment in Committee. There is plenty that is worth further debate now that we have had more of a chance to consider them. The critique by the noble Lord, Lord Pannick, of Amendments 29 and 31 goes to that point.
On a general note, the Minister referred to the counterterrorism review. One point that he did not cover when addressing whether asset freezing should fall within the review is the different regimes for asset freezing. The differences between the regimes continue to be troubling.
There is a difficulty in how one splits between this group and the third group one's points on whether the decision should be an executive decision or a judicial decision. I recognise the need for speed. The courts are capable of speed and, as has been said, could deal with an ex parte application by the Treasury in order to take what one might call precautionary interim steps in order not to find that the prospective designated person has outwitted them. Our amendments show that I was prepared to contemplate an initial designation by the Executive, subject to an application to the court, which is our third group, but I remain concerned about whether this should be an executive matter or a judicial matter. In this speech, I shall not cover reasonable suspicion for the 30 days as I hope my noble friend will refer to that in a moment.
If I use the term "draconian" for the asset-freezing regime, I will be told that that applied to a previous regime and that the licensing that the Treasury now implements is more benevolent, but I do use the term because I still see asset freezing as very close to
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However you analyse the differences, asset freezing is very close to the restrictive end of the spectrum, with an impact not only on the designated person but, as we will come to in more detail later, on that person's family. Standing back from the technical words, we can think about living in a family where the main breadwinner is not able to function and the impact that that has on the way the whole family operates, the stigma attaching to it and the relationships with the outside world. If I were the spouse of a designated person, I would not want to go shopping in a supermarket feeling that everybody in my community was looking at me. If I were the child of a designated person, I would be really worried about going to school. The prospects for bullying and so on are enormous. That is not to say that we should not protect the public, but we have to bear that other side in mind. The existence of designated persons under an asset-freezing regime is an existence rather than perhaps full life.
It comes down to whether we think the prime responsibility should be that of the Executive or of the courts. For the reasons that I have given, I continue to believe that the impact should be a judicial responsibility. Is it appropriate? Recognising the objective, is it even proportionate for the Treasury to be both the accuser and the judge?
Baroness Noakes: My Lords, I was not able to take part at Second Reading, which I regretted as, when I sat in the seat now occupied by the noble Lord, Lord Davies of Oldham, I covered the terrorist asset emergency legislation earlier in the year. I have of course had an opportunity to read that very good Second Reading debate. Despite the fact that I have now moved to this side of the House, had I taken part in the debate I would have regretted that the Government had not moved on from the formulation of asset freezing bequeathed by the previous Government and my tone would have been probably somewhat critical of my Front Bench. So it is a great delight to me to find that the Government have tabled the amendments in this group. They show that the Government have listened to some of the concerns from the civil liberties groups and from noble Lords and noble and learned Lords. In particular, I believe that the belief formulation is superior to the suspicion formulation, and the interim designation solution is a practical response to the issues that have been raised.
The noble Baroness, Lady Hamwee, raised an important point on amendments to amendments. My noble friend will be aware that if we accept these amendments in practice without agreement, there can be no further amendments. But the Government tabled these amendments particularly late-even later than normal for a Government to table amendments. Conjoined with the fact that when they were tabled we were still in recess, and for many of us it was difficult to access things, I hope that my noble friend will accept that it is reasonable for your Lordships' House to discuss the substance and the detail of the points that come up in
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Having said that I support the amendments in this group, I have one question for my noble friend. It will be interesting to see how these interim designations are used in practice and whether they are converted to final designations. Under Clause 24, there is to be a regular Treasury report on the use of the powers in the Bill. Will my noble friend assure me that that report will cover the extent to which interim designations are converted into final designations? We would want to have some assurance that the power that is being used in relation to interim designations was sufficiently robust and did not fall significantly short of the standard that we would regard as acceptable for draconian actions to be taken in respect of people's assets.
Finally, picking up on what my noble friend said about the Home Office review, I think he led the House to believe at Second Reading that that review would be available before we returned. He referred specifically to the Commons Summer Recess ending before we returned. It is a considerable disappointment that we do not appear to have that review available for our Committee stage. Is it possible that we will have that Home Office review before finalising the remaining stages of this Bill? It would be disappointing if the Bill left this House without sight of that review. In particular, although my noble friend referred to the fact that it concludes that there are enough significant differences between the control order regime and the asset-freezing regime, many of us remain to be convinced of the translation of that into legal effect. We would value looking at the arguments and analysis that led to that conclusion.
The Archbishop of York: My Lords, in the debate on Second Reading on 29 July, I supported the noble Baronesses, Lady Hamwee and Lady Falkner, and the noble Lords, Lord Pannick and Lord Myners, in suggesting that "reasonable suspicion" provided too low a threshold for action that would violate a person's liberty, privacy and financial interests. I prefer the term "reasonable belief". The difference between the two is that reasonable suspicion means that something may be so, whereas reasonable belief means that something is so. To me, the distinction is important. However, I congratulate the Government because at least they listened to the debate. The noble Lord, Lord Sassoon, argued in his reply that the test of reasonable suspicion was necessary to allow preventive action to be taken before any terrorist acts were actually committed. He cited the freezing of assets in connection with the transatlantic bomb plot in 2006. However, he indicated that he had listened to the arguments.
Last Friday the Government tabled their amendments, which essentially create a distinction that I think is probably reasonable. The amendments create an interim designation that would expire after 30 days and a final designation that would be made subsequently. New
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The noble Lord, Lord Pannick, and the noble Baronesses, Lady Hamwee and Lady Falkner, have tabled an alternative set of amendments that would apply a more rigorous test by substituting the test of reasonable belief in Clause 2-Amendment 3-and by providing that designation should expire after 30 days unless confirmed by the High Court. This would bring judicial review forward to an earlier stage in the proceedings and make it automatic rather than dependent on the lodging of an appeal.
I have only just seen these amendments with the publication of the Marshalled List, but my initial inclination is to think that they do not meet the point about preventive action, which is at the heart of the Bill. Noble Lords will remember that UN Resolution 1373, adopted in 2001, required member states to prevent the financing of terrorist acts, including the freezing of funds, and to prevent their nationals and those within their territories from making funds and resources available: so it was intended to prevent actions. On that particular bit, I am happy with this two-pronged approach: first, an interim designation, and then after 30 days an actual designation. But I am not sure why the final designation is not to be made by the High Court. Why have we not gone that little bit further? I understand the interim designation because we need to stop people, as the United Nations requires us to do. Indeed, we are here today simply because the Supreme Court has ruled that the orders that have been made by Order in Council should not have been made in that way. It said not that they were not right but that they should have been made through an Act of Parliament. I suggest that, in keeping with UN Resolution 1373, and with Resolution 1452 in December 2002, the interim designation that is being attempted here goes a long way to meet my concern last time, but I am not so sure why, after a period of 30 days, the designation will not be made by the High Court.
Lord Myners: My Lords, I join others in giving credit to the Minister for the changes that have been made on the issue of reasonable suspicion and reasonable belief. When I was a Minister, I came to recognise that officials' favoured recommendation on any amendment or discussion in this House and probably in the other place is "resist". It is much to the credit of the Minister that he listened carefully to the arguments and has brought forward a constructive proposal.
It is clearly the case that you can reasonably suspect something without necessarily believing it, as the Minister's proposal acknowledges. It is possibly churlish, therefore, to find any fault. However, I have a reservation that the proposed interim test may now be recognised as rather simple and could be used for a fishing trip to flush out further evidence during the period. It will be interesting to hear the Minister's response as to how
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I hope that the Minister will also confirm that the acceptance of these amendments today will not limit further discussion on Report. Other Members of the Committee have noted that these amendments, constructive and welcome as they are in most respects, have nevertheless been tabled quite recently. As the noble and learned Lord, Lord Lloyd of Berwick, indicated, they give rise to significant issues, which Parliament should be expected to consider carefully.
I add my support to the observation of the noble Lord, Lord Pannick, about the protocols that will apply in a situation in which an initial freezing might be extended. The noble Lord is right to say that that should be done not simply on the basis of there being new evidence but on the basis of substantial and material new evidence. This is to ensure that the abuse that the Government have in mind-the granting of successive interim orders without ever having to go to the test of reasonable belief-is addressed. The noble Lord's suggestion in this respect is entirely consistent with the grain of the Minister's thinking.
As the Minister who took the temporary Bill through this House earlier this year, with the noble Baroness, Lady Noakes, responding on behalf of what was then the Opposition, I agree that the Minister has presented us with a significant improvement on that legislation.
Lord Lester of Herne Hill: I agree with everything that has been said by everyone-including the congratulations to the Government-and I can therefore be extremely brief. I rise not to hear the sound of my own voice but to make two points. First, the Joint Committee on Human Rights was formed only a couple of weeks ago and will consider this debate and the amendments when it meets next week, after which it will report. As a member of the committee, I feel that that is a further reason for supporting what has been said by three contributors-my noble friend Lady Hamwee, the noble Baroness, Lady Noakes, and the noble Lord, Lord Myners-about the importance of being able to return to these matters on Report. Although the Constitution Committee produced an important report, I am sure that Members of the House would like to be informed about the human rights implications.
Secondly, the original Explanatory Notes on the Bill were rather brief in dealing with the human rights implications. I believe that a more detailed human rights memorandum was submitted by the Treasury on 13 August. I have asked in the Printed Paper Office for a copy but it does not have one. Will the Minister indicate the need for that to be made available before final decisions in this House are taken? As it is not there now and I have not had the benefit of seeing it, I certainly do not feel as well informed as I would like to be.
Lastly, could the Minister say something about the important decision of the European Court of Justice in the Kadi No. 2 case last week, which found in favour of the applicant in a terrorist asset-freezing context and insisted on writing strong safeguards against
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Lord Carlile of Berriew: My Lords, I declare an interest as the shortly outgoing independent reviewer of the Terrorism Act 2000 and some connected legislation. I, too, congratulate the Minister, my noble friend and the noble Lord, Lord Pannick, on the work that has been done to produce the outcome that we have today. We are concerned here about aspects of the public interest and particularly national security. There is a clear paramountcy in ensuring that assets are not used to fund terrorism; the issue is the proportionality of the efforts undertaken to prevent that from happening.
I am sorry that I was not able to be here to speak at Second Reading. I shall simply add one sentence to the few remarks that I wish to make on this amendment, which is ever so slightly out of order. I note that Clause 25 makes provision for an independent review of the provisions contained in the Bill. It is not inevitable that the same independent reviewer as reviews other counterterrorism provisions should review these provisions, but for efficiency and consistency it would seem sensible that the same person should do it-it will not be me because I shall be going out of office shortly-because there are similar issues to be considered in relation to both pieces of legislation.
I agree with those who have said or implied that consistency of standards of proof is required wherever possible and that those standards should be as high as is proportionate and consistent with the national interest and the issues that we are concerned with. It is my view that reasonable belief might be transliterated elsewhere in raising the standard required in other aspects of counterterrorism legislation. I certainly welcome it.
The noble and learned Lord, Lord Lloyd of Berwick, raised early in this debate the issue of orders being made by judges rather than by the Executive. I do not have a very strong view about that, save to point at the evidence. Like it or not, if one looks at the control orders regime, one sees that judges have shown themselves to be extremely robust about the orders and the conditions applicable to them in rejecting executive acts or amending those that have taken place. That separation between an order made by the Executive and a review by the judiciary on whatever basis seems to work and does not need to be changed. There is a tried and tested process whereby judges, with the help of special advocates-I admit that their activities could be improved if greater assistance were given to them-reach decisions that robustly protect the rights of the individual.
Lord Carlile of Berriew: There are no other orders that are comparable with these, so any other context would seem to me not to be relevant. I say that with
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I close simply by saying that a useful decision has been reached and the Government have shown themselves, in this instance at least, to be very responsive to the informed opinion that was given at an earlier stage in this Chamber.
Baroness Falkner of Margravine: My Lords, I add my voice to the chorus of those congratulating the Minister on having contemplated our views over the summer and having come up with these clauses. Before going into the substantive points that I want to make, I will touch on the technical point of amendments to amendments and hope that we will be able to revisit it. I went to the Table Office, or duty Clerk's office, on Monday at 4.20 pm and was told that even on that day I was already too late. I received the letter from the Minister detailing his reasons for these amendments-it was very gratefully received and I cannot thank him enough for it-at 6.30 on Monday evening. For obvious reasons, it had not yet been placed in the Library, so there was absolutely no possibility of scrutinising the amendments with a view to doing anything about them.
On the test of reasonable suspicion, the Minister said in his opening remarks that we should not use the same level of safeguard across all legislation. That somewhat concerned me because, as other noble Lords have said, there is nevertheless a relationship with the control orders regime. My noble friend Lady Hamwee has referred to the Supreme Court's rulings in the Ahmed case, where the noble and learned Lord, Lord Rodger, said that,
I accept that this will now apply only for a period of 30 days, but when your employer and all and sundry around the work that you do are told that your assets have been frozen on the basis of your having been a designated person under terrorism legislation, that has its implications for your future employment. It is not just that your assets are frozen for a period and you hope that you will be non-designated. It affects not only your family and friends but your future employment prospects, so it is perhaps more serious. The noble Lord, Lord Pannick, referred to the 30-day freezing as "inconvenient". I suggest respectfully to him that it is potentially more than inconvenient.
I wonder whether the noble Lord can tell us why he chose 30 days for these interim orders rather than, perhaps, 45 days as I expect the Treasury's civil servants or certainly the Home Office's would have sought. Why did he not choose 14 days, or 31 days or 29? What is the magic cut-off whereby information will become available on the 30th day that was not available on the 29th? The Minister also said that there are other countries with similar systems. I wonder whether he could share with us the other countries that have such a low test, even for an interim order of 30 days in the first instance. It would be helpful to know whether they have similar systems to ours.
Lord Davidson of Glen Clova: My Lords, the last Government passed the provisional Bill earlier this year to validate existing asset-freezing orders and to avoid gaps in the terrorist asset-freezing regime. At the same time, we sent a draft Bill for public consultation to ensure that we had a viable long-term framework for terrorist asset freezing. Those were the right decisions to take at the time and I thank the Treasury for its advice on these matters. What it means for us today is that we now have the benefit of public submissions on the draft Bill and the report from our Constitution Committee. Submissions on the draft Bill voiced a concern that the balance was not right between public security and individual civil liberties. Added to that is the report from the Joint Committee on Human Rights, which noted the necessity to keep assessing the appropriateness of terrorist legislation to ensure that the measures imposed remain fair and proportionate. We have taken these views on board.
The interim designation proposal from the Government is inevitably a compromise position to accommodate some of the concerns raised by the Supreme Court in the Ahmed case, in public submissions made on the draft Bill and by the Constitution Committee in the House of Lords. We have been considering the viability of a similar regime ourselves. In considering this solution further, we have a few questions about the Government's proposed regime.
One issue that might benefit from clarification-this echoes the remarks of the noble Baroness, Lady Falkner-is how the Government came to the 30-day timeframe. I assume that there was nothing very principled about it. Do the relevant agencies consider that they will be able to meet the higher test within such a period? Do they consider that that will put a particular imposition on the limited resources available to them in this particularly difficult area?
As I understand the Minister's position, the consequence of the new approach is that the order will drop, although it is reasonably suspected that an individual is involved in terrorist activity. I appreciate that there is more than a semantic difference between "reasonable suspicion" and "reasonable belief" but, as the noble and learned Lord, Lord Lloyd of Berwick, said, the difference between the two tests can be quite thin. Because this may be an area that will become contentious in court, it would be helpful if some indication might be given as to how the Minister perceives the difference between the two tests. As the noble and learned Lord, Lord Lloyd of Berwick, also said, it is paramount to suspend terrorists' funding when one may.
There is a concern about the extent to which a string of interim designations might lead to pressure on sparse resources. Have the Government considered the possibility of a longer timeframe with a definitive cut-off point as a way in which to provide certainty and capacity for the long-term credibility of the asset-freezing regime? There is in New Zealand a possibility of a one-year interim designation based on the lower burden of proof. That cannot be renewed. After that period, the relevant authority, in that case the Prime Minister, must decide whether to grant a final designation or to allow the designation to lapse. That acknowledges the important balance required between civil rights and security. It would be interesting to know whether
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There is interest in the Government's assessment of costs in introducing this regime into the asset-freezing framework. I appreciate that this might be asking for too much, but are there any indications as to what additional costs might be associated with having an interim and final designation scheme?
Finally, I share the view expressed from all quarters of the Committee, including by the noble Baronesses, Lady Hamwee and Lady Falkner, and the noble Lords, Lord Myners and Lord Lester, that further debate on some of these amendments might be useful. I echo the noble Baroness, Lady Noakes, in expressing disappointment about the absence of a review. Again, it would be helpful to have a timeframe that the Minister is confident in telling the Committee about when that review might come.
I draw attention to the point that the noble Lord, Lord Lester of Herne Hill, identified, with his usual acuity, on the recent decision of the European Court of Justice. Plainly this must raise questions about how that Court views the potential for abuse in the system as it is currently proposed. It would be useful to hear what consideration the Government have given to the decision of the Court. I appreciate that the decision is very recent and would not expect any developed appreciation of the judgment.
Lord Sassoon: My Lords, I am grateful for the important contributions that we have had to this discussion and for the focused points. I appreciate the remarks from around the Committee in response to the amendments that we have brought forward. On one or two of the procedural points, I apologise if noble Lords believe that our amendments came forward a bit late in the day but, as your Lordships will appreciate, they are fundamental amendments to the Bill and, with the Recess and the summer holidays, it took some time, both within the Treasury and with my colleagues in Government, to ensure that we got them absolutely right. We took the time necessary to do that, but I apologise if it has been a bit of a scramble in the past couple of days.
On the question that a number of noble Lords have raised about the process of amendments to amendments, my understanding, although I am the newest of new boys here, is that amendments to amendments are possible but the reversal of amendments on Report is not. Whatever the construction is, though, I am sure that we will be bound by whatever the conventions of the House are. However, I take the point that there are potentially a number of bits of tidying up. We will come to the individual items, but there are certainly one or two things that I shall take away and reflect on. I take that procedural point.
On the question of the publication of the Home Office review, I can only repeat what I said in my opening remarks-I have no specific date. However, I note the remarks that have been made today, and I will take them away and relay them to my right honourable friend the Home Secretary.
I turn to some of the specific points that have been raised. A number of noble Lords, starting with the noble and learned Lord, Lord Lloyd of Berwick, have made the suggestion that it should be for a judge to make the order rather than a Treasury Minister, with the courts then reviewing the order if it is appealed. I cannot do more than refer to the powerful case succinctly put by my noble friend Lord Carlile of Berriew, who said what I would probably have said at greater length: we believe, given the nature of this regime and the nature of the process that requires Ministers to take account of operational information, that it is appropriate for Ministers to make the initial order, but making that order has to be done on the considerably strengthened tests that we are now proposing and there has to be a concern that the public would be put at risk if the order were not made.
Lord Lloyd of Berwick: Will it be open to the Treasury to make an order in a case where it cannot be revealed to the defendant what the case against him is? In other words, is it accepted that the Treasury will be applying the decision in AF?
Lord Sassoon: I do not believe that the rules about what evidence can be brought before the court are in any way changed by what we are proposing from the conventions that apply. It relates in some way to the point that the noble and learned Lord made about the nature of the evidence that should be there before an order is made. The noble and learned Lord, Lord Lloyd of Berwick, quoted one Supreme Court justice; I could quote others but perhaps I should not detain the Committee. I might have referred to that at Second Reading. The noble and learned Lord, Lord Rodger, has in some of his remarks expressed a different view about the nature of the supporting evidence in order to support very much a preventive approach to this regime.
Lord Davies of Stamford: Following the point just made by the noble and learned Lord, Lord Lloyd, if the Bill were to place the responsibility on the Treasury not to designate but to seek an ex parte decision by a judge to designate, would that hearing not be held in camera? In those circumstances, would it not be possible to provide, for example, evidence from the security services, such as SIS and GCHQ, without any danger to national security?
Lord Sassoon: The issue here, as the Government see it, is to get a workable regime that is able to respond flexibly and appropriately and can be a preventive regime. The balance we have struck between a limited period when the evidence can be used to support a ministerial decision on the basis of reasonable suspicion, followed by the reasonable belief with the appeal to the court, is the right one. There are different ways of doing it which would entail various ways of the court looking at it. I come back to the fundamental point-my noble friend Lord Carlile of Berriew has absolutely gone to the heart of this. While we could debate alternative ways of doing it, in striking the balance it is appropriate to have a ministerial decision, with the person designated able to challenge it through an appeal process in the court.
Lord Davies of Stamford: The Minister is answering me by saying that the balance is in favour of the Treasury route because it is a more appropriate route, which is slightly circular. Can I establish what exactly it is that the Government feel is in the route's favour? What are the decisive criteria in favour of taking the route that they suggest? Is it a matter of time? Is the noble Lord suggesting that it is a matter of time because Ministers could take decisions more quickly than a judge could grant an ex parte injunction or designation? If not time, what other specific considerations does the noble Lord have in mind?
Lord Sassoon: Ultimately it is the responsibility of the Executive to make these orders. They have the operational information at their disposal. Yes, the orders can be made very quickly. Fundamentally this is an appropriate action power of the Executive, with checks through the courts. That is the way it has operated to date, with the important exception that we are strengthening both the test that Ministers have to apply and the ability to challenge decisions through the courts. I take to heart the words of the noble Lord, Lord Myners, as a Minister who was involved in implementing the regime. He graciously said that the new construct provides a better approach than the one in the previous legislation. I take that very much to heart from a former Minister who is used to making these difficult judgments, which have to be made.
Lord Lester of Herne Hill: My Lords, does the Minister accept that this is a highly controversial matter, that I for one have the misfortune to disagree with my noble friend Lord Carlile, and that the Kadi case, for example, about which we hope to hear more, is very much in favour of full judicial protection and full due process of law? I for one wholly agree with the noble and learned Lord, Lord Lloyd of Berwick, and with the noble Lord, Lord Davies. I see no reason whatever why we cannot trust the High Court, with its very sensitive procedures concerned with protecting national security but also personal liberty, with the primary decision to make an order with draconian consequences. I understand the arguments of administrative convenience which are always deployed by the Executive but I for one am not satisfied. I cannot tell whether the Joint Committee on Human Rights will come to a similar view.
Lord Sassoon: My Lords, I shall come to the Kadi case although I should note that it does not directly relate to this particular regime. There is a judgment to be made as to what actions are ones for the Executive and what are not. We believe that this measure-it is the way this regime has worked over the years-should be operated by Ministers with the appropriate protections. The word "draconian" has to be used and understood in a particular way. The measure is intended to be draconian in the sense of making a material impact on the ability of terrorists to finance their activities but is not intended to be draconian in the sense that we also have very significant safeguards in the regime through the licensing which allows proper expenditures to be made. Therefore, I do not recognise the word "draconian" in that sense as we ensure, under individual or general
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The noble Lord, Lord Pannick, made some very helpful remarks. As we are also discussing his amendment, I reiterate his endorsement of the broad shape of the regime that we propose in the government amendments. He made three specific points in relation to what we are proposing in Clause 29 and asked detailed questions about whether it should be the same evidence or substantially the same evidence. As I think he recognises, these are fine points which I will take away and consider. On the noble Lord's point about appropriate notification, I should have thought that if certain people had been notified at the outset, at stage two it would be appropriate to notify the same people, so I am not sure that that needs to be stiffened up. Indeed, I am not immediately persuaded as to what difference the use of the same evidence or substantially the same would make in practice, but I will have a look at that.
My noble friend Lady Noakes talked about the procedural points that I have addressed in the Home Office review. My noble friend asked whether the review will detail the number of interim and final freezes and how many interim freezes had become final freezes. I have little doubt that that will be covered in the review. I am not sure that the implication should necessarily be drawn that if a number of interim orders are made, but they actually fall away, that in any sense suggests that they were improperly made or that the evidence was not properly based. I can quite see circumstances in which interim orders have to be made but, for a number of reasons, could fall away. I take my noble friend's point about-
Baroness Noakes: I probably did not express myself particularly well when I put the point to my noble friend. I was not talking about the work of the independent reviewer, but of the requirement in Clause 24 on the Treasury to make a report. I hear the Minister trying to say that nothing can necessarily be inferred from the relationship between interim and final designations. I am really seeking to make sure that that information will be made available in the public domain, and the report by the Treasury under Clause 24 seems to be the obvious route, not the work of the independent reviewer.
Lord Sassoon: I thank my noble friend and entirely take her point that it would be a matter for the Treasury report. I am grateful to her for clarifying that she agrees with me that one could not take a simple implication from a read-across of the number of interim reports that might-we will see whether they do-fall away.
My noble friend Lady Falkner of Margravine asked why there should be a period of 30 days as opposed to any other number of days. There is, as she put it, no particular magic in designating a period of 30 days. One could mount an argument for 14 days or 45 days. Thirty sits in the middle, and it seems a reasonable period. Quite a number of cases have come across my desk and that period seems to strike a reasonable balance. However, there is no magic about it.
As for the experience of other countries, I shall look to see what other experience there is. However, I can say that New Zealand, specifically, has an interim designation which can be made for 30 days on the basis of suspicion and a final designation which requires reasonable belief. New Zealand was mentioned in a question from the noble and learned Lord, Lord Davidson of Glen Clova. Regrettably, I met New Zealand's Deputy Prime Minister yesterday-if the meeting was tomorrow, I could ask him the question. However, the review here operates in a different way, and we also have the regular review which Treasury Ministers have to make. Our regime is different from New Zealand's, and we have a separate safeguard, the regular review, which is also subject to appeal to the court.
The noble and learned Lord made a couple of points about resource pressures and additional costs. I have no reason to believe that there will be significant additional costs or resource pressures. Perhaps linked to that, the noble Lord, Lord Myners, asked about fishing trips. He said that it was a churlish point, but I would not say so. It is important to question whether there will be fishing trips. I have absolutely no reason to believe that the new regime as proposed will lead to fishing trips. A series of serious tests have to be applied and that includes protection of the public. This is linked to the resources point. Resources will not be significantly increased, because nothing in the proposals will allow Ministers to go off on fishing trips.
Perhaps the last point left hanging concerns the Kadi case. The first thing to say is that the case does not impinge directly on the legislation that we are looking at. The latest judgment annuls the EU regulation and the listing under it dating back to 2001 as it applies to Kadi, but there is a suspension of the judgment for two months and 10 days to allow time for an appeal to be made to the Court of Justice. If an appeal is lodged, it is likely to take 18 to 24 months. I expect that the Foreign and Commonwealth Office will press the Commission to appeal the decision; so the case has a long time to run. Of course, if the judgment were upheld, it would set our EU obligations squarely against our UN obligations, which would present a difficulty: but it is not a difficulty that impinges directly on the Bill.
Lord Lester of Herne Hill: I am sorry to interrupt my noble friend the Minister, but he is putting his own gloss on the judgment. He says that it puts us at odds with the United Nations regime, but am I not right in saying that the European Court was at pains not to put itself at odds with the regime, but to insist upon safeguards in administering the regime?
Lord Sassoon: My Lords, I am reluctant to get too far into the details of the Kadi case. As the noble and learned Lord, Lord Davidson of Glen Clova, said, this is a recent and complex judgment that may be appealed and does not have a direct bearing on the Bill. I hope that we can now pass on, but appreciate that we may need to come back to this in the House in future.
I think that I have picked up most of the material points. The last one is the question of what happened
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Baroness Hamwee: I will also speak to Amendments 8 and 9. The term in Clause 2 with which I am particularly concerned is "involved". It may look from my amendments as if I am more bothered about the definition of "terrorist activity". I am a little bothered about that, but more concerned about what is meant by "involvement". I changed "terrorist activity" to "terrorist acts" simply to make it flow better.
The term "involved in terrorism" seems to me very wide, so I hope that the Minister will explain where it comes from and what the precedents for it are. It looks to me as if the term comes from the Prevention of Terrorism Act 2005 provisions on control orders, which we are all agreed is a tough regime. The Terrorism Act 2000 used a different term, "concerned in terrorism", in relation to deciding whether to proscribe an organisation. I am told by people from Liberty-I am grateful for their help, which I asked for late last night-that the term "involved in terrorism" has been interpreted by the courts under the control order regime and has been applied even where the person concerned has been acquitted of a terrorism offence. Liberty referred me to the cases involving AY and MB. Therefore, it seems that "involved in" requires only a suspicion of involvement rather than an actual charge or conviction. Although we have spent a good deal of time on suspicion and belief in the debate on Amendment 1, I think that we are back in the realms of suspicion in this group as well.
If I am right that the term "involved in" is taken from the 2005 Act, I should perhaps go on to ask about the different terminology that is used as the provision goes on. The 2005 Act talks about "involvement in terrorism-related activity", which is not quite what is referred to in the Bill. The courts could distinguish between the two terms and, indeed, that might be what the Minister intends. I felt that I should raise the point at this early stage of the debate.
As other noble Lords will have seen, the briefing from the Equality and Human Rights Commission takes the view that such a threshold is not only too widely drawn but is in excess of what is required by UN Resolution 1373 of 2001.
Let me try to shorten the debate a little-I think that this group of amendments need not detain us nearly as long as the previous one-by acknowledging the provision in Clause 2(1)(b), which requires that the Treasury be of the view that the designation would be
However, I am concerned that the term "involved in terrorist activity" might extend to someone who happens to have been a bystander or who has just been associated with someone a bit more dodgy. The person might just have happened to be in the wrong place at the wrong time. I do not know whether this is a fair analogy to draw, but I am aware of concerns in another part of the legal forest about another term that has now, I am afraid, completely gone from me. That tells me that one should make proper notes. Perhaps my noble friend Lord Carlile knows the term that applies where a gang of people who were standing around happen to have seen a murder and are charged. Can you help me, Alex?
Baroness Hamwee: I thank my noble friend. I could not have afforded that advice but I am very grateful for it. As I said, it may not be an appropriate analogy but it has occurred to me that people whom the public might regard as being a long way away from being responsible for something could be charged under the joint enterprise head with a very serious offence, and I should not like to see that applied here. These amendments are tabled in order to understand the Government's thinking on this clause better than, I confess, I do at the moment. I beg to move.
Lord Borrie: My Lords, the noble Baroness, Lady Hamwee, and her colleague whose name is also attached to this amendment have raised very serious matters. After all, vagueness is not appropriate to the creation of a criminal offence and nor does it seem appropriate when the results may be the drastic ones described by several noble Lords in the previous debate. If being involved is something other than having committed or having attempted to commit an offence, what is it? Being involved seems to be so general and unspecific that it seems inappropriate even to legislation which is concerned with preventive matters rather than with a known criminal act that has been committed. I think that the Government are called upon to explain this.
Lord Carlile of Berriew: My Lords, my noble friend Lady Hamwee has provoked me, at least into saying to her that it will cost her no more than a drink later. However, with great respect and affection, I want to raise a substantive point about her amendment because I think that she is wrong.
We have to take a little walk down the real world of everyday terrorism activity. There are people who do not commit what might be held by the courts to be terrorism acts but who have the custodianship of money, and that money may, for example, be about to be used for the purchase of guns-a subject that is very topical at present. I think that, if I provoke him, the Minister will confirm that these events can happen very quickly and the police may have to act at the last minute. As former Ministers opposite will know, from time to time events have occurred that have required extremely urgent action. In those circumstances-particularly now, when we have a regime in which there are to be interim orders-a threshold has to be set which I am afraid may temporarily disadvantage some people but will protect the public from possible extreme danger. We have to make a judgment about whether we do that or whether we adopt the approach which some of the briefings have suggested. However, I want to make the point that in the real world of terrorism caution has to be the watchword, particularly if the rights of individuals are fully protected in a review mechanism which is provided later. Indeed, this is also part of the answer to the point raised in the previous debate about whether there should be an executive act followed by judicial review or a judicial decision followed by judicial review. In the real world, I am afraid that an executive decision followed by judicial review is the only way of meeting the fast-moving events which occur when there is a real terrorism threat.
Lord Lloyd of Berwick: Does the noble Lord accept that in the real world, as I understand it, the defendant will have to be informed at once if this order is being made by the Treasury, and he can go to the next stage-to the court-and get a review?
Lord Elystan-Morgan: I have profound regard and respect for the noble Lord, Lord Carlile of Berriew, but I am concerned at this stage not with whether the authority should be exercised administratively, executively or judicially, but with what the boundary of criminality is exactly in relation to the meaning of the words,
My simple question is: does that possibly encompass a person who is a principal either in the first or the second degree, or a person who aids, abets, counsels or procures? In other words, does it extend that very considerable boundary of criminality, and if so, to what extent?
Baroness Falkner of Margravine: My Lords, it is the term "the real world" used by my noble friend Lord Carlile that provokes me to speak. He may well agree-academic pursuits and all that set aside-that because of my background, if for no other reason, I have some understanding of this particular real world and the people involved in it. The concern, particularly for me, is that an interim designation that is based on reasonable suspicion followed by such a broad inference of what kind of suspicion might lead to what kind of involvement is very wide indeed. We will catch an awful lot of people for no reason at all. I am talking about communities where large numbers of family members live together. Such communities are tight-knit and a lot of support is given to each other, often simply on the basis of familial, religious or community loyalty. The people in these communities, particularly the women, will, often in good faith, do something that is asked of them without seeing what it might lead to. The idea that they will be cognisant of and understand reasonable suspicion enough as a test and the level of involvement as another test and try not to commit those offences is asking rather a lot on frail grounds. Will the Minister reconsider this and the exhortations of my noble-and extremely knowledgeable-friend Lord Carlile that we need to be extremely careful in this regard?
Lord Sassoon: My Lords, let me attempt to deal with this. I certainly feel that I live in the real world in that I have to make such decisions regularly. One limb of the test that has not been stressed in this discussion but which is absolutely critical to it is that the legal test for freezing assets has the second limb that the Treasury must also conclude that a designation is necessary for public protection. That is the critical safeguard on how the power to freeze assets is used. There can be very fast-moving situations, as described by my noble friend Lord Carlile of Berriew, when the exact nature of each person's role in a plot is not immediately clear. It would be a significant restriction on the regime's ability to operate in the preventive way that is necessary for public protection if we were to exclude those who might be involved in the broader commissioning, facilitation and support of terrorist activity.
My noble friend instanced the case of people who may be sitting on money. It is essential that the definition is not restricted in the way that Amendments 4 and 8 propose if it is to be effective. As the plot is disrupted, the exact nature of people's role will become increasingly clear. It will become clear who is a "bystander", to use the word of my noble friend Lady Hamwee. I think that the two-stage framework that we will now have in place, combined with the requirement for Treasury Ministers to conclude that the designation is necessary for public protection, deals with the point.
Lord Elystan-Morgan: I am most grateful to the Minister for giving way. I accept of course that there has to be very wide discretion, which is allowed to the authorities in these two provisions, subsections (1) and (2). However, at the end of the day, one has to ask: what is the target area? Reasonable suspicion is perfectly understandable. It is something with which the authorities have to deal day in and day out. The question is: what is the target area? Is it a person who has been criminally
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Lord Sassoon: I am grateful to the noble Lord, Lord Elystan-Morgan, but I must reiterate that we are trying here to achieve the protection of the public against active, live terrorist attacks. In order to do that, Ministers need to be able to exercise immediate discretion to stop the flow of money-as we know, very small sums of money can create enormous disruption. Ministers must have appropriate powers to disrupt the terrorist threat. That means that it is important that the freezing net is drawn so that those who are involved in supporting or facilitating the activity are caught in it, but, as the evidence becomes clearer, the Treasury must be concerned at all times that the designation is necessary for public protection. Where an individual may have been part of a wider group that is involved in terrorist activity but where it has subsequently become clear that the individual's involvement was purely incidental and that they themselves were not supporting or facilitating terrorism, it would be difficult to demonstrate that a freeze was necessary for public protection. Freezes cannot be imposed or maintained unless the second limb of the test is met.
I return to the analysis by my noble friend Lord Carlile of Berriew. I believe that protections are in place and that we must not forget that second limb. For those reasons, I hope that, on reflection, my noble friend will be prepared to withdraw her amendment.
Lord Pannick: Before the Minister finishes, is he prepared to give the assurance that the concept of being involved must connote some culpability, some knowledge-some recklessness, at least-and that a perfectly innocent person caught up in events would not be covered?
It is necessarily drawn wide, but the linkages that are made are clear from the definition. All cases also have to be linked to what is necessary for public protection. I ask my noble friend to withdraw the amendment.
Baroness Hamwee: My Lords, I will not leave the Minister in suspense. In view of the point made by the noble Lord, Lord Pannick, I am minded to bring the term "involvement" back on Report in the hope that the Minister will have had an opportunity to consider the culpability issue and will perhaps be able to give us some more assurances on it.
When I moved this amendment, I acknowledged paragraph (b), and I hope I said, because it was what I wrote down, that I was reassured by it. I take that point very seriously and was by no means ignoring it. The boundaries of culpability, as the noble Lord, Lord Elystan-Morgan, described them, are very important. I will come back to this, but not in as extensive a fashion, and I know there are some problems with some of these amendments. I beg leave to withdraw the amendment.
Baroness Hamwee: I shall speak also to Amendments 6, 14, 16, 17, 26, 35, 47, 50, 60, 61 and 62 which are tabled in my name and that of my noble friend Lady Falkner. Government Amendments 57 to 59, 63 to 69, 71 to 73 and 88 are also in this group which is about the role of the court. In view of the previous debate, and to stop anybody teasing me, I will acknowledge that Amendment 5 provides a 30-day period. I welcome government Amendment 57, which introduces the appeal, but I am concerned that it should be an appeal as most people understand that term, so I will use these amendments to ask the Minister to explain how his new clause on appeal, which is inserted by Amendment 57, and Clause 22, which is subject to some amendments he will move, work together. In particular, we are retaining subsections (3) and (4) of Clause 22, which provide for the application of judicial review procedures.
I appreciate that the new appeal provision is about an appeal on designation. Having got that, and given that even if there were no reference to judicial review it could not be excluded because you cannot exclude judicial review, I am not sure why it is necessary to retain any part of Clause 22. I understand that the Government's argument is that judicial review would be adequate for the circumstances we might find ourselves in, but the issue arises of how far a designated person under judicial review procedures can challenge the evidence. We will come to special advocates later. What, for instance, if he says that the circumstances have changed? As I understand it, judicial review is about what is in the mind of the decision-maker at the time the decision is made. What is the Government's objection to appeals on all aspects of this regime to deal with the merits as distinct from the reasonableness of a decision? I am told that how the courts approach judicial review is slightly shifting sands becoming slightly wider and more open. Essentially, it is about legality and reasonableness as well as procedure. Legality meaning vires and reasonableness being Wednesbury reasonableness. Put simply, reasonableness is setting the outer boundaries to the discretion.
In particular, I should like to understand from the Minister whether, as the Bill will be amended with his amendments, the court can substitute its own version of a licence. I do not think that one can look at
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Lord Pannick: My Lords, I, too, welcome government Amendment 57 on the right of appeal. This seems to be a strong safeguard, which renders insubstantial the concern that the original decision is taken by the Executive. That of course is subject to two matters on which I would ask for reassurance from the Minister. First, would the Government expect provision to be made for an urgent appeal against the decision to make an interim designation? The new clause allows a right of appeal against the interim designation, but there is little point in providing such an appeal unless it is heard speedily, given that the interim designation will last for only 30 days.
Secondly, the appeal will be decided by the judge, as I understand it, only on the basis of evidence which is disclosed to the subject of the order. Will the Minister reassure me that nothing in the amendments allows the judge on an appeal to have regard to evidence which is not disclosed to the individual-the problem in control order cases which led to the decision of the Appellate Committee in the case of AF?
Baroness Noakes: My Lords, the Government's move away from the judicial review basis to a more natural appeals process for designations in their Amendment 57 is welcome. It shows that the Government have been listening to concerns about civil liberties in this Bill.
However, I have continuing concerns about Clause 22, and for that reason I shall speak in support in particular of Amendment 62 in the name of the noble Baroness, Lady Hamwee. Before I do so, I have a question for the Minister in connection with government Amendment 57, which sets up the new appeal process for designations. Am I correct that there is no provision for any appeal against the decision taken in the High Court or the Court of Session? Does it mean that the appeal process, so far as the designated person is concerned, ends there? I am not sure whether I mind one way or another, but I would be grateful to know what the Government's position is on that.
I turn to the remaining decisions that will be dealt with under the terms of Clause 22. I accept that designations may appear to be the most important of the decisions the Executive will take in relation to the matters covered by the Bill, but decisions about licences are also vital for people who are designated. The licence regime will allow living expenses for those individuals, or possibly for the expenses they incur in order to carry on their business or trade. I spent most of the last 10 years on the Benches opposite arguing, in various circumstances, why people should not have to rely on judicial review when they get enmeshed in one Act or another. I argued strongly that judicial review is an unsatisfactory process for the citizen.
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The noble Baroness, Lady Hamwee, has alluded to the question of whether the court can vary the terms of a licence. If they fail to establish a perverse decision at judicial review, there will be no remedy, and if they could establish that a decision was perverse, which would probably be unlikely, there is then a question of whether any remedy is available at that stage or whether the matter has to go back to the Treasury for a further determination.
I hope that the Minister will reflect further on the Government's position in Clause 22 and look again at whether the safeguards for those who are designated are adequate in those circumstances that go beyond the actual designation. It is good that we have moved to designations and it would be good if we could move a little further.
The Archbishop of York: My Lords, earlier I supported interim versus final designation, as the Government have proposed in their amendments. At the previous stage I also raised this question: when someone's assets have been seized, how are they expected to bring forward appeals when they may not have any access to money to hire lawyers? We have been told that the final designation should be made by the Treasury and not by the High Court, which I would have preferred. There is wider resistance to this proposal, and I find the amendment persuasive. It provides that a designation,
That would help the person whose assets have actually been seized because they need to know what is going to be done. The appeal process comes much later, in the new clause to be inserted before Clause 22. Although it is helpful, again I do not think that it will cure the problem that I raised earlier in this Committee.
I feel that the Government have got to respond to this. What happens after 30 days? Does it continue? The person's assets have gone and they perhaps cannot have access to lawyers, but it has been said that they could appeal under the new clause introduced before Clause 22 by government Amendment 57. However, that is a little too late because after 30 days, if it did lapse, only the court should say, "Yes, we are going to continue to make it as a final designation".
In the absence of all of that, I would be very worried about our judicial processes. Although I believe the interim order is quite reasonable, as is changing to reasonable belief, but why should it be confirmed after 30 days unless a High Court confirms it? If not, the appeal, to me, comes too late in the process.
Lord Davidson of Glen Clova: My Lords, as noted earlier, the issue of civil liberties was raised in respect of the terrorist asset-freezing regime in the Bill. Some of the submissions on the draft Bill and in the report of the Constitution Committee suggested that more judicial oversight of decisions be made under the new Act. The contributions in the earlier debate reiterated that point. These amendments are intended to provide a better check and balance on decisions taken by the Executive behind the closed doors of the Treasury. This is to be welcomed.
As with the burden of proof issue discussed in earlier amendments, we support the introduction of more judicial oversight to protect civil liberties. It is correct that the previous Government considered it appropriate for the executive branch of government to make initial decisions in this area and we do not resile from that point. We welcome the Government's amendment to make this regime more credible by having a judicial check and balance on that power.
I echo the view of the Joint Committee on Human Rights that we should constantly review terrorism legislation to make sure that we have the balance right. The Minister noted the interest on this side in the Home Office's view on this area and I repeat that it would be helpful to have that to inform future debate.
Perhaps I may raise one or two probing issues in relation to the terrain of appeal. I respectfully agree with the noble Baroness, Lady Hamwee, that this area does not seem wholly clear. What seems to be envisaged is a form of appeal that is, to a degree, sui generis; it is not simply going off to the Court of Appeal or the Inner House. The judicial review also appears to operate in some way that may be parallel. It would be helpful if the Minister could indicate what is envisaged by this nature of appeal.
I would be particularly interested to hear whether it is envisaged that there should be some kind of fact finding. I raise this question because, in endeavouring to find out what was proposed in relation to an amendment that I shall bring forward later in relation to compensation, the answer that I received from Treasury officials was that compensation might be dealt with by the Appeal Court. As the Minister will immediately recognise, that introduces the question of fact finding that might come before any such, putting it neutrally, adjudicator. We are left with a certain lack of clarity as to what the Appeal Court is endeavouring to do and what its remit will be.
The point was well made by the noble Lord, Lord Pannick, that in this area timing will be critical. If the notion of a remedy to the Appeal Court is to have substance, it will be essential on issues such as interim designation to have the potential for speedy trial. Because this area is a relatively late introduction by way of amendment, it would be helpful to have guidance on what the Government envisage.
Perhaps I may make one final point in relation to the amendment tabled by the noble Baroness, Lady Hamwee. It is a gentle point; I hope that I am not to be accused of Caledonian prickliness. It relates not only to this amendment but to a number of amendments.
The Advocate-General for Scotland (Lord Wallace of Tankerness): This has been a useful debate. There has been a general welcome from all sides of the Committee for the Government's amendments, which introduce an appeal mechanism rather than judicial review for the core designation or decisions to vary or revoke.
Perhaps I could give some of the underlying rationale for the amendments. As introduced, Clauses 22 to 23 set out a procedure for review by the courts of any decisions taken by the Treasury under the powers provided in the Bill, including decisions to make, vary or revoke a designation, decisions in relation to licences issued or applied for, decisions whether to publicise the freeze generally or limit the scope of the publication for reasons of national security or justice and decisions whether to request or disclose information.
A number of noble Lords raised this matter at Second Reading. There were calls to amend the procedure for challenging asset-freezing decisions through the courts from a judicial review to an appeal. It perhaps answers some of the points made by my noble friends Lady Hamwee and Lady Noakes, to which I shall return in more detail, to say that we still believe that judicial review can be a very flexible tool, allowing differing degrees of intensity of scrutiny depending on circumstances and the impact of the decision in question on the individual concerned. In its report prior to Second Reading, the Constitution Committee acknowledged as a result of various court judgments the intensity with which courts scrutinise control orders where the legislation provides for a review applying judicial review principles. That is broadly equivalent to an appeal. Such an in-depth judicial review has been shown to be an effective safeguard in these cases.
Nevertheless, the Government believe that a similar full merits review should be adopted for court scrutiny of asset-freezing designations; that is, decisions to impose, to vary or to renew asset freezes. We believe it because, due to the lack of case law in this area, there is no certainty that the court would choose to undertake such a rigorous judicial review procedure-I think that that is the sense of the comments that were made at Second Reading. We have responded by tabling amendments to introduce an appeal mechanism for asset-freezing designation decisions, spelling out that we would expect a full merits-based review of such decisions to be undertaken by the court. Such an appeal would require both parties to provide the material underlying their case to the court, which would then conduct that full merits-based review of the designation decision, taking all evidence and substituting its own decision if necessary. This level of scrutiny is appropriate for designation decisions, because it is the core decision that will most affect the designated person's human rights.
Perhaps I may respond to one or two of the specific questions asked in this regard. My noble friend Lady Noakes asked whether it was just a right of appeal at one level. As with appeals generally, it will be possible
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The noble Lord, Lord Pannick, asked about expedition. He made the point that the provision applies to interim orders. By virtue of that, there would be an expectation that the courts would respond. Indeed, there have been a number of cases where the courts have shown an ability to respond with expedition. That is certainly what we would anticipate if an appeal was brought. On the question on disclosure posed by the noble Lord, Lord Pannick, it is clear from the terms of the Bill that provision and reference is made to the rules of court with regard to the special advocate system. It is therefore envisaged that the rules of court should provide for that system. There is a later amendment in the name of my noble friend Lady Hamwee on which we might be able to discuss this in greater detail.
My noble friends Lady Hamwee and Lady Noakes both raised other decisions where the position would remain as one of judicial review rather than appeal. The Government's position on that, as for other decisions concerning implementation of the freeze, is that these are not as fundamental to the citizen as the original decision to impose the freeze. That includes the granting of specific licences and the publicity of the fact of a designation. It is certainly our view that maintaining a standard judicial review is appropriate in these cases. I certainly recognise the concerns raised by my noble friend Lady Noakes about judicial review but, as I have said, the courts have already shown, certainly in relation to decisions on control orders, an ability to mount a very rigorous review indeed. These decisions are, however, more administrative in their nature and do not require the same in-depth consideration as a decision to impose an asset freeze. Nevertheless, we anticipate that judicial review of these decisions would include proper scrutiny of the material on which the Treasury decision is made and that the court would have the power to consider further information if it believed that to be necessary. Ultimately, it will be a matter for the courts to decide on the appropriate level of scrutiny to be applied, depending on the decision in question.
My noble friend Lady Hamwee asked whether the court would be able to substitute its own terms if, for example, that was with regard to a licence. The court has discretion to give whatever relief is appropriate; we certainly believe that that could include amending the terms of a licence.
The most reverend Primate the Archbishop of York raised the issue of people being subject to freezes for 30 days without access to funds and legal expenses. The point about that is that we provide licences. A general licence is given at the point where people are designated to ensure that they indeed have access to funds for living and legal expenses. This will be the subject of a set of amendments later in our proceedings. People do not need to go to a court to be able to access that legal aid funding.
Perhaps I might specifically refer to Amendments 5 and 6 and the consequential amendments, which would limit the period for which the Treasury could make
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Unlike control orders, asset freezing is not only used against people in the United Kingdom who cannot be prosecuted or deported. In fact, only around 10 per cent of asset-freezing cases involve people who are in the UK or hold funds here and are not being prosecuted for terrorist offences. The noble and learned Lord, Lord Lloyd of Berwick, indicated that he thought that those who were subject to designation should also be prosecuted. I asked how many people who have been subject to asset freezes have been prosecuted. I was advised that 21 individuals in the UK have been convicted for terrorism offences. Six people within the UK have not been prosecuted. I also asked how many persons outwith the UK have been subject to designation for asset freezing; the answer is 36, of which 22 are entities and 14 are individuals. It would not be possible to prosecute them. Nevertheless, consistent with our obligations under the United Nations Security Council resolution and the importance attached to disrupting terrorism by freezing assets, it is important that we have been able to designate in those cases in which it would not be possible to bring prosecutions.
In that small number of important cases in which individuals have not been prosecuted and are within the UK, we believe that the opportunities that are open now through a full form of appeal are appropriate. It would not be appropriate to have a mandatory form of court decision-making, but there is a robust avenue for those who have been designated and wish to challenge that in the courts. In that way, we have strengthened judicial safeguards for asset freezing. For those reasons, I hope that the noble Baroness will be prepared to withdraw her amendment and that the Committee will be minded in due course to support the amendments that have been tabled by the Government.
Lord Pannick: Do the Government accept, on special advocates, that the AF case would apply in this context, as it does in the context of control orders, and that it would be necessary for them to disclose at least the gist of the allegations against the individual concerned?
Lord Wallace of Tankerness: I think that I am right in saying that the noble Lord represented successful appellants in the case to which he referred. Certainly we would take the view that the special advocate system and disclosure procedures are designed to ensure justice for individuals in difficult circumstances when, as the noble Lord recognises, public interest material cannot be disclosed. The special advocate system has been in effect for some time. With regard to the specific case, applying the AF judgment to asset freezing, the noble Lord is right that there is a relation to control orders, but the Government do not consider that there is an automatic read-across to all other proceedings involving the use of closed material for special advocates. It is fair to say that the requirements of fairness, which are vital, will vary according to the context and gravity of the consequences for the individual. It is engrained in both domestic and European Convention of Human Rights jurisprudence that fairness is context and fact specific. In the case before the Grand Chamber against the UK that immediately preceded the AF case, the point that it can vary was made. That is no doubt a matter to which we will return when we deal with the issue of special advocates under a later amendment.
Baroness Hamwee: My Lords, my apologies for ignoring the wonderful country of Caledonia, which I love very much. It was a particular gaffe, given the presence on the two Front Benches of eminent Scottish lawyers.
What I am going to say should be construed as constructive criticism, which is appropriate from these Benches. My noble friend referred to the human rights aspects of designations and how they had figured in the Government's thinking in inserting the appeal procedure. The significance of the licensing regime must not be downplayed; the human rights aspects of the licences are enormously important. The Government have explained why they consider that a judicial review will be adequate to deal with licences, but the Minister has not explained-perhaps he does not think it necessary-why the appeal route is being rejected. I ask him these questions to get them on to the record. Perhaps I will come back to them next time.
is in Clause 22(3). I do not know whether "set aside" covers setting aside a decision and imposing an alternative, which might be varying a licence. If so, that might answer the point, but I suspect that it might not cover it; it is certainly not clear. Clause 22(4) says that this is the condition for the court giving whatever order it determines if it decides that a decision should be set aside. I want to be reassured that the court can take a view not to set aside the licence but to vary the terms of the licence. I do not know whether the Minister wants to comment on that at this point.
Lord Wallace of Tankerness: I thought that I had indeed indicated that it is our belief that the court has the discretion to give whatever relief it considers
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Baroness Hamwee: I heard that; I took it as a general comment. I was particularly concerned about the words in what will apply-above and beyond, presumably, although I do not know-and whether the general position can trump what is in this legislation. Maybe we can discuss this between now and the next stage and, if necessary, come back to it. I beg leave to withdraw the amendment.
(a) the prevention of terrorism; and
(b) the humanitarian needs of the person affected by designation."
Lord Davies of Oldham: My Lords, I shall speak also to the amendments grouped with Amendment 7, including Amendment 51, which is linked to it. I also note that our new Clause 10 is included; it is there in a most helpful frame from the Opposition towards the Government, and I hope that the response from the Minister will reflect that.
I shall address the question of Amendments 7 and 51 and why the official Opposition have tabled them. We seek to question the Government about the extent to which the Treasury will consider our relevant international and European commitments when making designations. Based on the submissions made on the draft Bill and the issues raised by the Constitution Select Committee, have the Government considered whether the proposed legal framework for designation adequately encompasses our international commitments? In particular, have they considered whether it is appropriate to assess a licence on humanitarian grounds prior to invoking the asset freezing attached to any designation? That it should be an offence in the interim period for a person to provide the necessities of life appears to be directly at odds with the United Kingdom's international commitments under UNSCR 1452, which relate to exceptions being granted for individuals designated under the asset-freezing regime to meet basic humanitarian needs.
I realise that in the previous amendment we discussed aspects of this issue, but I seek greater clarification from the Government on this matter. Would it not be desirable instead to introduce this step near to the beginning of designation, before its effect is felt, to ensure that the Treasury has in fact considered the appropriateness of the licence in every circumstance? We have great sensitivities about this issue with regard to licences. We all recognise the difficulties while at the same asserting, as my noble friend has been concerned
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Our amendment would provide maximum flexibility because it would not prevent the Treasury from deciding that a licence was not appropriate in individual circumstances or from deciding later that a licence should be granted, varied or revoked. This includes situations where a designated person or a third person affected by designation applies to the Treasury for relief under the licence scheme. These are probing amendments, and I hope that the Minister will respond to them as constructively as he can.
On Amendment 10, the Opposition are concerned to be even more helpful. We cannot see the explicit power in the Bill to grant a licence. The Bill as drafted certainly allows the Treasury to vary or revoke a licence at any time, but there does not seem to be explicit provision for the Treasury to grant a licence. There are phrases about what a licence may contain and what it means once a licence has been granted, but we cannot identify a specific power. The purpose of our amendment, therefore, is a new clause to enable the Treasury to grant a licence. This would give legal effect to a licence so that it and any decisions made in reference to it could not subsequently be challenged in court.
Such is my respect for Treasury lawyers-indeed for the Treasury in all its aspects, from past experience-that I have no doubt that my anxieties in this respect are completely groundless. I hope that the Minister will be able to reassure me. If not, we will seek to press our new clause.
Baroness Falkner of Margravine: My name is on Amendment 48 along with that of my noble friend Lady Hamwee. Before I speak to it, I should say that Amendments 7 and 10 of the noble Lord, Lord Davies of Oldham, seem entirely reasonable, but in the absence of knowing what United Nations Security Council Resolution 1452 refers to, I will restrict my arguments to Amendment 48.
The intention behind our amendment is to clarify Clause 13 in order to improve accountability and increase transparency so that officials, as well as the designated person, are in a position to know how they go about setting the test for reasonable living costs, which is what we refer to in our amendment. Reasonable living costs will inevitably be a matter of subjectivity in a family due to their requirements. In ascertaining what reasonable costs are, our concern is how the Treasury will make that assessment. More importantly, should the assessment made not be one that, from the perspective of the designated person, fulfils their reasonable living costs? As I said, it is all rather subjective. How will they be able to challenge that and get a variance to the original order? How long would it take for that to be achieved? Again, if it were to take a cumbersome length of time, that would be quite an onerous obligation on the designated person.
Baroness Noakes: I have one question in connection with Amendment 51 in the name of the noble Lord, Lord Davies of Oldham, which seeks to insert "grant" into Clause 13. He suggested that the Bill did not contain any power for the Treasury to grant a licence. Could he say whether there is any other way of reading Clause 13, other than as saying that the Treasury may be able to grant a licence?
Lord Sassoon: Let us deal with that point. I am advised that Clause 13 gives all the power that is necessary to grant a licence. I am grateful to the noble Lord, Lord Davies of Oldham, for trying to help the Government by making sure that the power is in the Bill. However, I am assured, and my noble friend Lady Noakes confirms this, that Clause 13 grants that power.
I will address Amendments 7 and 10 more generally. There are some important issues here. Although the noble Baroness, Lady Falkner, did not spend long speaking to her amendment, she made an important point. These two amendments would clearly require the Treasury, when deciding whether to designate a person, to consider the UK's international obligations to prevent terrorism. The Treasury would also be required to consider the humanitarian needs of persons affected by designations, including which licences should be granted immediately after the designated person is notified. The key international obligation is United Nations Security Council Resolution 1373, which requires all UN member states to freeze the assets of terrorists and prevent their nationals and persons within their jurisdictions making funds, resources or financial services available to them. However, it is left to individual member states to decide to whom the measures should be applied. The Government recognise that a decision to designate someone has a significant impact on their human rights. It is for this reason that designations can be imposed only where they are necessary to protect the public from a risk of terrorism.
It may be helpful if I explain the process that the Treasury goes through when designating someone. Decisions as to persons who should be subjected to terrorist asset freezes are informed by law enforcement and intelligence agencies, which prepare statements of case setting out the material that gives rise to a reasonable suspicion or belief that the person is or has been involved in terrorist activity, and why the freeze is necessary for public protection. When submitting their recommendations, law enforcement and intelligence agencies also provide a risk assessment framework to inform immediate licensing decisions by the Treasury, and ensure that designated persons are not deprived of access to funds immediately after designation and before the longer-term licensing needs of the person can be addressed. That is also informed by the risk assessment framework. Treasury officials and lawyers then scrutinise the statements of case and make recommendations to the Minister on how to proceed. Where a designation is envisaged, this will include recommendations on immediate licensing needs, in accordance with basic principles of good governance, to ensure that a designated person's basic needs can be met.
It is important that the asset freeze is applied in a proportionate manner-managing the risk of funds
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Where a designation is made public, as they are in all current asset-freezing cases under the Terrorism (United Nations Measures) Order 2009, once the Treasury Minister has taken a decision to designate, a notice is then published on the Treasury's website. Subscribers to the website, which include the financial sector, receive an automatic notification of the freeze, enabling them to implement it without delay. The designated person is then sent a letter, explaining that they have been designated; setting out the reasons for the designation; enclosing relevant licences; referring to the general licences that are in place; informing them of how to apply for further licences; and informing them of their right to challenge.
I apologise for dwelling on this process but it is important to understand what I perhaps take for granted because I see the paperwork and assessments that are made in every case that comes before me. It may not be clear from the tip of the iceberg that appears in the Bill that, when assessing whether the freeze should be implemented, the Treasury absolutely considers the UK's international obligations, the national security need and the human rights impact on the designated person. There are also robust arrangements in place, as I have described, to ensure that the human rights of the individual are protected from the outset. Reflecting on all this, the changes made by Amendments 7 and 10 do not need to be written into the legislation. I therefore hope that the noble Lords will withdraw their amendments.
Turning to Amendment 48, I stress again the points that I have just made about licences, which deal with the main issues here. Licences provide a mechanism by which exemptions to the asset freeze can be made and issued, for example to allow designated persons access to funds and economic resources necessary to meet their and their families' living costs. At present such licences are granted by the Treasury as a matter of course if they are required by the designated person. Therefore, the proposal to place an obligation on the Treasury to issue such licences is unnecessary. It is for those reasons that I hope my noble friends will withdraw Amendment 48.
Finally, Amendment 51 inserts a power to grant a licence under Clause 13(4), which gives the Treasury the power to vary or revoke a licence. I assume that this amendment was tabled from a concern that the clause does not give the Treasury the power to grant a licence. However, as I have described already, partly
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Lord Davies of Oldham: With the Minister's categorical reassurance buttressing the comments of the noble Baroness, Lady Noakes, which I also accept as an important contribution, I am happy to withdraw the latter amendment in due course.
We are all aware how significant this legislation is and how judicial review and challenge can occur. Therefore, it is right that we ensure that we are secure about the legislation that we are passing in this House. We have sought that reassurance through a probing amendment. I have now obtained that reassurance.
On the more general issue, I am very grateful to the Minister. He apologised for the length of his reply. However, he should be congratulated on the length of that reply as he identified exactly the areas of anxiety which the Opposition and the wider public might have about the considerations that obtain when these issues arise. After all, these are executive acts. It is very important that we know the context in which executive acts are carried out. I am grateful to the Minister for the extent of the detail that he gave. I reassure him that it was not a waste as we shall not press the relevant amendments. I beg leave to withdraw the amendment.
Lord Davies of Stamford: My Lords, I will make two points. The first relates to the issue that we have been debating, about which I am far from satisfied; that is, the merits of having a process under which it is the Treasury-and therefore Treasury Ministers on the advice of Treasury officials-which designates someone for the purpose of the Bill, and not a judge sitting in chambers acting on an ex parte request or application. The noble Lord, Lord Sassoon, has been extremely conscientious in answering all the points that were put to him this afternoon and I make no personal complaint about that at all. However, I repeat the point that I put to him as I was not satisfied with the response. He still has not revealed what actual practical, substantive advantage there is in having a Minister rather than a judge take responsibility for this initial, crucial act of designation. This is an enormously important matter. If there were strong pragmatic reasons relating to national security and the defence of the lives of individuals, I would be the first to say why we have to take certain action which is unpleasant and unattractive in terms of our civil liberties and why we sometimes have to strike a balance. However, those merits have not been argued and that substantive point has not been put forward and I am still completely in ignorance as to why the Minister has gone down this route rather than another.
We can always speculate and say that Ministers are always inclined to give themselves extra powers whenever they can, that that is a natural instinct of government and that I am being naive in not recognising it. That is
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