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I also put forward pragmatic points, which are subsidiary and not quite so important, in favour of the judicial route. One is that, however thorough and conscientious the Minister and his officials are in these matters-I am sure that they are-they would be even more alert and thorough in their preparation if they had to go before a judge. Life is like that. The other pragmatic reason has been put in different ways in the House this afternoon. For an individual, a designation order of this kind is obviously a catastrophe. He or she may well stand to lose his or her employment-that point has already been made-but I think of someone who runs a business and suddenly finds that he cannot pay his suppliers or staff or pay back bank loans or something like that while the order is in force. He will certainly face a delay in making contractual payments while he perhaps appeals the designation or applies for a licence. Therefore, an individual may suffer a long-term and serious penalty if he is the innocent victim of an unduly hasty designation. That should make us all pause very strongly. I accept that the Government's very welcome concession on appeals rather than judicial review means that there would be less time to wait before an appeal takes place. God knows, judicial reviews last a very long time indeed. Nevertheless, as has been pointed out, the waiting time would be a great deal longer than 30 days and would probably last some months. Therefore, it is important that there is an opportunity for a judicial sight of the issue without waiting for the appeal procedure to be triggered.
I shall not pretend to the Government that I am inclined to vote against the clause even if I am not totally satisfied, because I have been entirely undercut by my noble friend the other Lord Davies, who has told me-this was news to me-that the previous Government, of which I was honoured to be a member, accepted the principle that decisions in this area should be made by executive power rather than by judicial decision. My responsibilities in the Government were in very different areas and I did not have the faintest idea at that time that this issue was being debated or decided in that way or any other. As I may be deemed
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The other points I want to raise specifically in relation to the text of the Bill are those that I made in general terms on Second Reading about piracy, the hijacking of ships and aircraft and the kidnapping of individuals. As I made clear on Second Reading-no one contradicted me and, indeed, we all know that this is the case-there is a very serious practical problem at present in the Gulf of Aden. We hear about it in the media only when British ships or British nationals are hijacked or abducted. That has happened, although not in recent weeks. However, it is a very common occurrence for ships and their crews to be abducted. I am told by underwriters in the City of London that it is now a regular business for ship owners and their underwriters to pay millions of pounds in ransom money to these particular terrorists, as I call them. That is a very unfortunate situation. Those terrorists or hijackers face no real physical risks at present. They have learnt that the rules of engagement under which NATO and the EU naval forces deploy in the area mean that they will not get fired on if they do not fire in the first place. Therefore, there is very little physical downside from their point of view. There is absolutely no financial downside whatever-that is, of course, the critical point for this debate-as they can quite legally receive and hold these ransom moneys and, indeed, people can legally pay them the ransom moneys. This is an extraordinary situation in which we as taxpayers are paying for these naval forces in the Indian Ocean to try to protect world shipping and the freedom of international trade. We are putting our men and women at risk on Her Majesty's vessels in that cause, which I believe is a good cause. Yet we are allowing these malefactors who are carrying out these hijackings to receive this money with impunity and enjoy it. This is contributing strongly to the destabilisation of Somalia and is relevant to what I am coming on to in a moment-not least to its appalling consequences for the individuals concerned and the systemic damage to international trade and so on that I have just mentioned. That is because the money received is paying for warlords, the purchase of arms, the bribing of politicians and judges, and the destruction of any stability in that country. It is a very bad story. The western world is simply sitting idly by and watching this money flow to these people.
Here we have a Bill for the seizing and freezing of terrorist assets. The question is: are its provisions applicable to money received by hijackers, kidnappers and pirates? Are the provisions for protection in Clause 7 available to stop people paying this money to such individuals or groups, or are they not? The situation is somewhat ambiguous. Two categories of people or groups can be designated under Clause 1, those designated by the Treasury and those listed in Article 2(3) of Council Regulation (EC) No. 2580/2001 of
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It does not define acts of terrorism or terrorism, but refers in subsection (4) of Clause 2 to the definition of terrorism in the Terrorism Act 2000. I am familiar with that definition, and I am not sure that it would cover the sort of activity that I have been describing, because for such acts to be terrorist acts they would have to be politically motivated in a way that might not apply to some of the cases that I have in mind.
I have also looked at the second category of "natural or legal" persons who could be designated, as set out in Clause 1(b). It refers to the Council regulation which I have just enumerated, which, annoyingly, does not itself contain a definition of terrorism. However, it refers to the definition of terrorism in the Council Common Position of 27 December 2001, which specifically, in Article 3(iii)(c), refers to "kidnapping or hostage taking", and in (e) to,
My questions to the Government are as follows. First, does the Bill cover assets held by hijackers or kidnappers, or are held with a view to making payments to them? Secondly, if there is any ambiguity about that or any possibility of strengthening the Bill in that regard to make its provisions effectively apply to such assets, is there any intention or willingness by the Government to do so? Thirdly, if that is not the Government's intention and if the present Bill does not meet the case, do they intend to use another legislative opportunity before too long to make sure that we have a provision for seizing money which is not currently illegal but should be, and is derived from or connected with hijacking or kidnapping? I have a fourth question: are the Government perfectly happy with the present situation and is it reasonable, although we might spend money and risk life trying to combat systematic hijacking in the Gulf of Aden, not to do anything at all to prevent the flows of money which keep that industry alive?
My final point is that if nothing is done to restrict those flows and the accumulation of assets, it will undoubtedly encourage the development of an industry of piracy and hijacking-not merely in the Gulf of Aden but in other parts of the world, because it would seem to be an attractive business with little risk that can be conducted entirely within the law of the land.
The Archbishop of York: My Lords, I do not want to detain the House. I am one of those who has been anxious about designation without involving the judiciary.
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Perhaps I may end on why this clause should be part of the Bill. On page 10 of his wonderful book, The Rule of Law, the noble and learned Lord, Lord Bingham, quotes Magna Carta. I love his translation, because the old language is pretty difficult. He refers to the terms of chapters 39 and 40, which state:
"No free man shall be seized or imprisoned or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land".
Lord Sassoon: First, I should say that I am grateful to the most reverend Primate. If we have managed to raise a bit of fog through the combination of a probing amendment and a bit of detail from me, and be reminded that we are meeting part of the test in Magna Carta, we will have spent a worthwhile hour or so. He also answered rather eloquently part of the further challenge from the noble Lord, Lord Davies of Stamford, on whether it should be the responsibility of the Executive or the courts to issue the order. I do not know whether the noble Lord is still looking for an answer. He partly answered the question himself, because I was going to start by reminding him that indeed it was the previous Government who operated the regime in this way. It was the Bill passed by this House which became an Act in February-
Lord Davies of Stamford: I quite understand that the noble Lord is trying to tease me in this way and he is welcome to do so, but I am not asking for an ad hominem response to this point; I should like a substantive response, please.
Lord Sassoon: I will try briefly to help the Committee. There is a judgment to be taken in many areas where the Executive exercise authority that could be handed over to other people; the courts might be one place to which it could be handed over. However, I fundamentally believe that actions and decisions to prevent the commission of acts of terrorism, as the noble Lord points out, often must be taken under very considerable pressure of time and require fine judgments of operational
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I will also say that I do not accept the word "catastrophe" if it relates to somebody who is reasonably suspected or believed to be involved in a way that leads to the freezing of their assets, subject to the safeguards. We have put in place licensing provisions, and I explained at some length how those are operated right from the start of the designation. Of course it is a serious matter to freeze somebody's assets, but when we talk about the balance against protecting the public against terrorist acts, we should be careful about using "catastrophe", given the nature of the threat on the one hand and the protections that I have described on the other.
I will move on swiftly to the question of piracy, kidnapping and hijackers. Of course the Government take all these matters extremely seriously. In so far as they are linked to terrorism, as defined in the way that the noble Lord has set out, they will come within the provision of the Bill; but often piracy, kidnapping and hijacking will be independent of terrorism and so not the proper province of the Bill. However, this absolutely does not mean that the Government do not take this seriously, particularly the question of ransom payments. We do not encourage the payment of ransoms. There is a range of other ways, for example through the money-laundering rules, in which aspects of the transmission of illegal money are dealt with, and the Government continue to keep under review all these matters. I suggest that, although it is important that they are raised, they go beyond not only Clause 2 but the Bill itself. I ask the Committee to agree that Clause 2 should stand part of the Bill-
Lord Davies of Stamford: I am grateful to the noble Lord for giving way at the last minute. I take note of the fact that obviously we are all reassured that the Government do not actively encourage the payment of ransoms and that they take the matter very seriously. However, if the problem is so serious-and the noble Lord agrees that it is serious-we should do something about it. The Government, after the election, now have a responsibility to do something. I would be grateful if the noble Lord will give an undertaking to the Committee that he will discuss with his colleagues what might be done, either legislatively or by use of executive power, to inhibit the payment of ransoms, or at least look again to see what could be done more effectively to make these activities less cost-free and risk-free to the terrorists.
Lord Sassoon: Of course I am happy to take back to my colleagues the noble Lord's concerns, but I
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Baroness Hamwee: I shall speak also to Amendment 13 and hope that discussion of the two amendments will take two or three minutes rather than 23. Noble Lords are accustomed to hearing debates about changing the term "may" to "must" in legislation. My amendments would change the term "must" to "may". They are about notifying designation and about publicity. Clearly, the Treasury must tell the banks, which it does by way of the consolidated list, but I am concerned here, as I am in other parts of the Bill, with the stigma that is allied to designation, and the effect on the family.
The conditions in Clause 3(3) that allow the Treasury not to publicise the designation are very specific. I should like to give the Treasury some discretion, although I accept that it may not use it, to pause and take account of the wider concerns that I have expressed. The clause is important: the offence is dealt with later, but there is a serious point here and I shall be interested to hear what the Minister says about the Treasury's approach.
It was very helpful to hear him explain what lies under the tip of the iceberg, as he described it, when it comes across his desk; but I am sure that he will accept that legislation needs to give assurances both about the tip and about what is concealed under the surface of the sea, and that what the Treasury does as a matter of practice, when it is good, needs to be enshrined in legislation so that it cannot be varied without Parliament being aware. He will not have had the experience that other noble Lords have had of saying: "Yes, Minister, you're fine, but what about your successors?". I beg to move.
Lord Sassoon: My Lords, I fully appreciate that the intention of Amendments 12 and 13 is to give the Treasury flexibility when determining whether to publicise a designation. However, the Treasury believes that the automatic publication of designations on its website where the conditions of Clause 3(3) are not met is the most efficient and effective way of achieving the appropriate level of awareness and compliance with the asset freeze. It is the most effective method of
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Baroness Falkner of Margravine: I apologise to my noble friend for interrupting him in mid-flow, but I wanted to capture his previous sentence. As I understand it, there is nothing to prevent the Treasury from advertising on its website if we substitute the word "must" for "may". The Treasury may still do so-and, I am sure my noble friend agrees, must do so-but we do not need the word "must" here.
Lord Sassoon: If my noble friend will permit me to go on, I will get to the answer to that challenge and explain why, in the round, the current construct works. We need the most effective method of informing the financial sector and other parties of their asset-freezing obligations to limit the risk of the prohibitions in the Bill being unwittingly breached in relation to funds being diverted for terrorist purposes. I accept that such an aim is not inconsistent with Amendments 12 and 13, but, if I may go on, let me complete what I was saying about our reasoning for believing that the Bill as it stands works well.
We recognise that, yes, publication would interfere with the listed person's right to respect for their private life, but we believe that greater weight must be given to the public interest in ensuring that a designation is effective and that a designation will be most effective when generally publicised. Indeed, the Supreme Court has acknowledged the public interest in publicising designations generally. In January, the court ruled that the identity of four designated persons could be made public and that anonymity orders were justified only in an extreme case where there was significant risk to the designated persons or their families. There are no reports of any individual being harmed as a result of their asset freeze being publicised. Indeed, general publication is consistent with international best practice and the FATF guidance. The EU publishes on its website details of those persons who have been designated under the respective regimes. If the UK were to cease publicising designations generally in all cases other than when a restricted publication was justified under Clause 3(3), that would give rise to an approach that was inconsistent with those of international partners and international guidance and best practice.
I am still not persuaded that Amendments 12 and 13 would inhibit the Treasury acting as the Minister described. I am sure that this is not his intention, but his response seems almost to amount to a fear that the Treasury cannot be trusted to make a sensible decision. However, although I am not persuaded, I will not pursue the matter further so I beg leave to withdraw Amendment 12.
to bring such matters to the attention of the persons who have already been informed of the designation. Amendments 24 and 28 would change "they consider appropriate" to "are necessary". First, I simply want to understand why it is necessary for the Treasury to have the slight subjectivity-the discretion, if you like-that is allowed in the clauses as drafted. Secondly, I want to ask whether "appropriate" implies a degree of reasonableness. Could the Treasury take a completely off-the-wall view, or must it act reasonably in Clauses 4 and 5?
Lord Sassoon: Let me try to address my noble friend's concerns about Clauses 4 and 5. As she said, Amendments 24 and 28 would remove the Treasury's discretion to determine subjectively the steps that it considers appropriate and replace it with an obligation to take steps that are objectively necessary. Let me try to explain why the Government believe that the amendments are unnecessary.
In practice, the Treasury will consider what steps are objectively necessary. In determining the appropriate steps to be taken, the Treasury will be conscious that the determination should be objectively justifiable, as a decision not to take a step that would be objectively construed as being necessary would be subject to legal challenge on the basis of being unreasonable. The Treasury will in practice decide on a case-by-case basis the best way to notify persons that a designation has expired, been varied or been revoked, with full consideration being given to the particular circumstances of the case of the designated person and of any other relevant factors. In practice, designated persons will always-unless they cannot be traced because, for example, they have gone overseas-be notified in writing that their designation has expired or been revoked or varied. Details of the change will be notified to other persons in the same way as the original designation.
I absolutely agree that it is important that persons informed of a designation are also informed of its expiry, revocation or variation and that such information should be provided in the most appropriate way. However because of the way that, as I have described, that will happen in practice, I do not believe that Amendments 24 and 28 are required. I hope that noble Lords will agree that it is not necessary to amend the Bill in this respect.
(a) they reasonably suspect-
(i) that the person is or has been involved in terrorist activity,
(ii) that the person is owned or controlled directly or indirectly by a person within sub-paragraph (i), or
(iii) that the person is acting on behalf of or at the direction of a person within sub-paragraph (i), and
(b) they consider that it is necessary for purposes connected with protecting members of the public from terrorism that financial restrictions should be applied in relation to the person.
(a) give written notice of the designation to the designated person, and
(b) take steps to publicise the designation.
(a) the Treasury believe that the designated person is an individual under the age of 18, or
(b) the Treasury consider that disclosure of the designation should be restricted-
(i) in the interests of national security,
(ii) for reasons connected with the prevention or detection of serious crime, or
(iii) in the interests of justice.
(a) give written notice of that fact to the designated person, and
(b) take steps to publicise the designation generally."
(a) at the end of the period of 30 days beginning with the date on which it was made, or
(b) on the making of a final designation in relation to the same person,
whichever is the earlier.
(a) give written notice of that fact to the designated person, and
(b) take such steps as they consider appropriate to bring that fact to the attention of the persons informed of the designation.
(a) a notice under subsection (2) above may be combined with a notice under section 3(1)(a), and
(b) steps under subsection (2) above may be combined with steps under section 3 to publicise the final designation."
(a) give written notice of the variation or revocation to the designated person, and
(b) take such steps as they consider appropriate to bring the variation or revocation to the attention of the persons informed of the designation."
Baroness Hamwee: My Lords, I shall speak also to Amendments 36, 37, 39, 40 and 43. Clause 6 creates an offence, so we must be very confident that that offence is on a proper basis. My amendments would change the words,
in the context of a person knowing or suspecting that certain information is to be treated as confidential, to "reasonably suspects". The same point comes up in a number of places in the Bill. The two terms are obviously extremely close but "reasonable cause to suspect" is about the reason for the suspicion, whereas "reasonably suspects"-my alternative phrase-is about the suspicion itself. One needs to ask whether the suspicion is reasonable in the round, as distinct from merely whether it is reasonable to believe in whatever caused the suspicion. Indeed, with regard to the term in the Bill, "reasonable cause to suspect", I might add the question: does the person have to have the suspicion or can he be guilty of an offence-I stress that this is why this issue is important-if he believes something that would lead a reasonable person to suspect although the person himself does not form the suspicion? If someone says "angels and pinpoints" I shall understand, but I think that there is an issue there.
Amendment 36, quite differently, would take out the reference to "any other enactment" in Clause 6(4)(c), where disclosure is permitted if it is necessary to give
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Lord Sassoon: I shall take Amendments 34 and 36 in turn. Amendment 34 would limit the effectiveness of the provisions concerned with protecting the confidentiality of information provided by the Treasury to certain persons in connection with a designation. It would mean that only those who know, as opposed to those who have reasonable cause to suspect, that information they possess is to be treated as confidential may commit an offence by disclosing it. This would weaken the protections afforded to confidential information and thus potentially adversely affect the designated person's rights.
It is right that those who have reasonable cause to suspect that information they possess is to be treated as confidential should be subject to criminal sanctions if they disclose such information. If a person had reasonable cause so to suspect but claimed not to have any suspicion and went on to disclose the information, it could be said that the person ought to have held a suspicion, in which case such disclosure should be prohibited. The current drafting of the clause provides the greatest degree of protection to the confidentiality of the information that the Treasury has provided. This is a complex series of interlinkages but I hope that on the basis of that construction my noble friend will withdraw her amendment.
Amendment 36 would limit lawful disclosure to circumstances where disclosure was necessary to give effect to a requirement imposed under or by virtue of Part 1 of the Bill only and not any other enactment. The amendment would have the effect of prohibiting disclosures which are required to give effect to any requirements imposed by any other Acts of Parliament. This would, for example, prevent disclosures concerning money-laundering or terrorist financing being made to the Serious Organised Crime Agency under either the Proceeds of Crime Act 2002 or the Terrorism Act 2000 with the consequence that the person concerned would be in breach of the statutory requirements contained in another Act. Preventing such disclosures would of course have a serious impact on the UK's operational effectiveness in fighting crime, and delaying such disclosures while authority to disclose was sought from the Treasury would have an adverse operational impact. Therefore, as with the other amendment, I hope that my noble friend will not press Amendment 36.
Baroness Hamwee: My Lords, I am grateful for that. I had to think very carefully about how to express the bulk of my amendments, and indeed I had to take care to read my notes accurately. Similarly, I think that I need to read the Minister's reply carefully to ensure that I understand it. For the moment, I beg leave to withdraw the amendment.
Baroness Hamwee: I shall speak also to Amendments 41, 42, 44 and 49. Here, we come to the prohibitions-again, creating offences-and there are a number of terms which I am seeking to understand through these amendments. The first is the term "indirectly", whereby funds, services, economic resources and so on may not be made available directly or indirectly. I could just have sought to delete the word "indirectly" but I can see that it must mean something, and in the context of this issue I do not want to suggest that we are seeking to weaken the arrangements. Therefore, I have chosen instead to insert the words,
My concern here is perhaps a little different because the situation might arise in which the spouse of a designated person wants to make a payment on a joint mortgage. It seems to me that that would be prohibited, although it could obviously be licensed.
This is all about the family. I accept that there is a proposed new clause about social service benefits, but I wonder whether it is extensive enough. Joint mortgage was one example. Obviously, joint accounts will be frozen-I say obviously, but maybe I will be corrected. Will a spouse's separate account be affected? To take a different situation, if the spouse's employer fears that the spouse's wages are going to a designated person, how should the Treasury, or anybody else, react? Can we have reassurance that the spouse's income will not be stopped because the terms of the legislation are such that the employer might fear that he is committing an offence?
Amendment 40 specifically addresses joint assets and requires the Treasury to grant a licence, so I am coming at this from a number of different directions. I look forward to hearing what the Minister has to say and beg to move.
Lord Wallace of Tankerness: My Lords, as the amendments in this group enjoy a similar theme, it is perhaps not surprising that the Government's position on the amendments also is similar. Amendments 38 and 42 relate to Clauses 8(1) and 10(1) respectively. These clauses prohibit the making of funds, financial services and economic resources available directly or
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The amendments would mean that a person could be prosecuted for breaching these prohibitions only if it could additionally be proved that that person intended the funds, financial services or economic resources to benefit the designated person. There is a concern that that would add a layer of complexity to the prohibitions and make it much more difficult effectively to enforce them. In these circumstances any prosecution would require proof beyond reasonable doubt that the person harboured the intention that the designated person should benefit from such funds, financial services or economic resources.
The Government do not support these amendments for two reasons. First, the amendments increase the difficulty with which the prohibitions can be enforced. Secondly, the Government do not believe that they achieve what is believed to be their intended effect, which is to provide a further protection to parties who unwittingly make funds, financial services or economic resources available directly or indirectly to a designated person. The prohibitions are already drafted so that persons who do not know or have no reasonable cause to suspect that they are breaching them, are not caught. It is therefore somewhat superfluous to require further that the prohibitions should apply only to those who intend that the funds, financial services or economic resources provided should benefit the designated person.
The prohibitions in Clauses 9(1) and 11(1) are designed to prohibit making funds, financial services and economic resources available to a third party where the designated person does not receive the funds, financial services or economic resources respectively but nevertheless derives some sort of significant financial benefit from their provision. A person commits an offence under these prohibitions only if he knows or reasonably suspects that the designated person will enjoy such a benefit.
Amendments 41 and 44 would narrow the circumstances in which a person may be found to have breached the prohibitions in Clauses 9(1) and 11(1) on making funds, financial services or economic resources available. The amendments would narrow the circumstances in which the financial benefit might be conferred by stating that only the discharge of financial obligations owed wholly, and not just partly, by the designated person would constitute a financial benefit. I fully understand where my noble friend is coming from on this, but this would allow a third party to meet a financial obligation partly owed by a designated person and would therefore provide a benefit for that designated person.
We believe that the purpose of these amendments is to provide protection from prosecution to persons who may be seeking, for example, to discharge the financial obligation of a designated person's wife-her rent, for example, whether by paying funds to the landlord or providing the landlord with an economic resource that can be used to obtain funds-which would have the incidental effect of discharging a financial obligation partly owed by the designated person, obviously, if the rent was in respect of premises which they both leased. As drafted, the prohibitions in Clauses 9(1) and 11(1) would prohibit this if the benefit derived by the designated person was significant. However, we believe that the prohibitions, as currently drafted, provide a sufficient safeguard for those who discharge a financial obligation partly owed by the designated person. To commit the offence, the person needs to have known or had reasonable cause to suspect that the offence was being committed, and this requirement would not be met if they do not know or have reasonable cause to suspect that the financial obligation is shared by the wife and the designated person. Even when the person knows that the financial obligation in question is shared-this is the crucial issue-it is open to such a person to apply to the Treasury for a licence to allow the discharge of that obligation on behalf of the designated person and the person with whom the obligation is shared.
The purpose of the Clauses 9(1) and 11(1) prohibitions is in part to give the Treasury oversight of how the designated person is financially supported so that appropriate licences can be drawn up that authorise the designated person to have appropriate access to funds. We believe that the licensing system has the flexibility to deal with the kind of concerns quite properly raised by my noble friend.
By a similar token the purpose of Amendment 9 would appear to require the Treasury to grant a licence where an asset is jointly owned by a designated person and another person who is not a designated person, so the latter can use the asset as long as it does not contravene the prohibitions set out in Clauses 7 to 11.
We readily recognise concern about the effect that the prohibitions can have on spouses and family members of designated persons and have sought to minimise them wherever possible. A jointly owned asset would ordinarily be caught by the prohibitions, and if the asset fell within the definition of funds there would be a prohibition against dealing with it. But where the dealing would create no terrorist-financing risk, the policy of the Treasury is to grant a licence to the non-designated person. We very much believe that prompt licensing, taking into account the considerations but allowing Treasury oversight of the funding of the designated person, is the best way of addressing the noble Baroness's genuine concerns and retaining oversight in dealing with any assets which the designated person controls.
Baroness Hamwee: My Lords, I shall certainly do so. I am grateful for the Minister's explanation of the term "indirect". On his point that I dealt with the term
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I remain concerned about the licensing relying on Treasury policy rather than flowing from the provisions of the statute. The Minister recognises that that is a serious point and I think he will also recognise that there is a line between relying on current policy, which may be changed dramatically or morph into something else, and having the reassurances that a provision in legislation would provide. I wonder whether I can talk to him on Report about this point, not about the rest of the group of amendments, to see whether something might be achieved that we both want to achieve. I beg leave to withdraw the amendment.
"( ) The prohibitions in section 8 to 11 are not contravened by the provision or funding of the provision of legal representation, legal advice or other legal services of, to, or for the benefit of the designated person."
Baroness Hamwee: My Lords, at last we come to some single amendments. Amendment 45 would provide that the prohibitions that we have just been discussing are not contravened by the provision or funding of the provision of legal representation, advice or other legal services for the benefit of the designated person.
I understand that the practice-again, there is a distinction between practice and legislation-is that a general licence is granted by the Treasury for legal aid.
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It goes against every fibre of both my being and my legal training to see anything that might deny access to legal advice and representation-in other words, access to justice. I wait to hear whether there are loopholes in the amendment, but I think that the principle is important. I beg to move.
Lord Pannick: My Lords, I am very sympathetic to the amendment for two reasons. First, it seems to me right and proper to allow a person to use as much of their financial resources as they see fit to pay for legal advice and assistance. To impose restrictions on them in that respect is simply to interfere with the administration of justice. Secondly, I cannot see that the Treasury has any interest whatever in preventing a person using their own funds to pay for legal advice and assistance. The Treasury's only legitimate interest is in preventing the use of the funds for the purposes of terrorism. If the money is being paid to someone who is regulated by the Law Society or the Bar Council-I appreciate that the amendment may need some tinkering to cover those points-I cannot see that the Treasury can have any legitimate concern as to the improper use of the money for purposes associated with terrorism. If the Minister takes a different view and there is evidence to suggest that persons who are regulated by the Law Society or the Bar Council are or may be acting improperly in this respect, please will he tell the House and explain what steps the Government are taking to draw such concerns to the attention of the proper regulatory authorities?
Lord Wallace of Tankerness: My Lords, this is an important amendment, and one that is somewhat foreshadowed by the comments of the most reverend Primate the Archbishop of York when we debated an earlier set of amendments. The effect of the amendment would be that any payments the purpose of which was to pay legal expenses of a designated person would not require a licence. As a result, the Treasury would have no oversight of such payments.
It is important to emphasise that that would include payments not just directly to solicitors and law firms but to designated persons themselves if the purpose were to pay legal expenses. This could include payments made by one designated person to another if the first designated person had access to free funds.
I understand the legitimate concerns that have prompted the amendment. I emphasise without equivocation that a designated person must be in a position at the earliest possible opportunity to challenge a designation or any other related decision made by
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Moreover, the Treasury has issued a general licence that applies to all designated persons to enable eligible legal aid payments to be made. I give the assurance that that will be replicated once the Bill is enacted. That general licence ensures that a designated person will have immediate access to legal representation where they qualify for legal aid. Any other party may request a licence at any time to pay for a designated person's legal expenses. I emphasise that the general presumption is that where a licence is requested to pay for legal costs, it will be granted.
The Government believe that this is the proper and effective way to deal with the provision of funds in relation to legal services provided both by the state, under the legal aid system, and by other persons. It does not and is not intended to impede a designated person's ability to access justice, which we think is very important, but it also ensures that the Treasury can maintain oversight of a designated person's expenditure. I hope that, against that background and with that reassurance, the noble Baroness will be willing to withdraw her amendment.
Baroness Hamwee: My Lords, we come up against the issue of policy and legislative provision yet again. The oversight by the Treasury could be provided by requiring reporting to the Treasury. I take the point about regulated providers made by the noble Lord, Lord Pannick, and the point about not permitting payment to the designated person made by the Minister. Subject to those points, I do not see a lot wrong and I see a lot right with my proposition and, again, I do not want to abandon it tonight. However, for the moment, I beg leave to withdraw the amendment.
The Earl of Sandwich:My Lords, this dinner hour debate is about the damaging effects of drugs that are legally prescribed. It is a sad story that has been told in the media for decades, but it needs retelling today because there is some chance that the Government are
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I warmly thank all those who have come to contribute to this debate. I speak as vice-chair of the All-Party Parliamentary Group on Involuntary Tranquilliser Addiction and am grateful to Jim Dobbin MP and Michael Behan, among others, for their research on and knowledge of this issue. The authorities were first alerted to it by research by Professors Tyrer and Lader in the 1970s and Heather Ashton in the early 1980s, but manufacturers were already doing clinical trials identifying problems as far back as the 1950s. Benzodiazepines such as Valium, Librium, Ativan and Mogadon were first touted as miracle cures because of their immediate benefits following prescription, but the benefits are often short-lived. Tolerance develops and the drugs then turn and cause symptoms often much worse than the original problem and even worse than those of illegal drugs. Patients enter a vicious cycle in which more drugs may be prescribed to combat the side effects and withdrawal symptoms, and so the process goes on. This is at great cost to the health of the individual and, of course, to the health service.
Huge overprescribing continues by doctors who are ignoring the British National Formulary guidelines. While drug labels contain warnings for patients, those warnings are inadequate and need to be much more prominent, like cigarette warnings. Current NHS recommendations state that the drugs should not be given for more than two weeks, yet people suffer withdrawal effects even within this short time period. Professor Steve Field, chair of the Royal College of General Practitioners, said in March 2009:
These drugs are dangerous. Why do doctors prescribe them so freely if they provide temporary relief for so little time and never cure the original problem? I wonder whether this category of drug should be prescribed by doctors at all, considering the uneven benefits and the tremendous risks. There should be stricter controls and these drugs should be rescheduled and reclassified as class A. There are many proven non-drug alternatives for anxiety and sleep disorders, such as CBT, but these are subject to long waiting periods. They should become the first available line of treatment if we are to avoid the devastation that these drugs cause.
Psychological symptoms that persist after sudden withdrawal include anxiety, agoraphobia, panic attacks, depression, fatigue and lack of concentration. Common physical symptoms are muscle pain, insomnia, dizziness, blurred vision, tinnitus, sweating and nausea. These
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It is pitiful that a problem of this severity, and on this scale, has been allowed to get worse over so many years when so much has been known empirically for so long. Back in April 1984, Professor Heather Ashton of Newcastle University published an article in the BMJ entitled Benzodiazepine Withdrawal: An Unfinished Story, which summarised the problem. As a result of this and other reports, GPs and NHS staff became more aware of the dangers, clinics were opened and prescriptions fell from about 32 million to 18 million per year-a significant fall. However, by November 2000-16 years later-Heather Ashton, who was in regular contact with patients, noted that things had not really changed. In many ways they had got worse. A "Panorama" survey at that time estimated that there were as many as 1.25 million long-term benzodiazepine users in the country, an average of over 180 for every GP.
We need to act urgently to ensure that these accidental addicts are provided with appropriate support from the NHS to help them to withdraw, yet today there is only one NHS-funded support centre-in Oldham-despite the fact that all these patients have become addicted as a result of drugs prescribed via the NHS. That brings me to the Labour Government's welcome, if belated, review. I believe that the new Government are equally sincere, but I wonder whether they will now seriously consider the true costs of doing too little, too slowly. At a time of cuts and savings, have they estimated the social costs-the loss of earnings and tax, the cost of benefits and the drain on the NHS-incurred by these prescribed drugs if they do nothing? Do they even know how many people are long-term users?
Another concern is that the National Treatment Agency may be given responsibility for treating these addictions. The NTA has no expertise in this field. I understand that tranquilliser addicts whom it has treated in the past have been withdrawn abruptly over three weeks as if they were illegal drug users. This is wholly inappropriate and dangerous, as successful and safe tranquilliser withdrawal requires a timescale of between six months and two years.
What is the timetable for this review? Will the department move swiftly to encourage the many voluntary initiatives that already exist in the absence of any NHS programme? We are dealing with a daily emergency in the lives of many patients. Instead of further consultation within the institutions, why not immediately set up a working party to develop best practice and to set up pilot projects, using the expertise already in place in many areas? When, for example, will the Government
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The answer that I and others have received to these questions so far-that nothing can be done this year-is simply not satisfactory when you think of the scale of the emergency and the silent suffering of so many people. I hope that the coalition will come up with some more urgent interim solutions pending the outcome of the review. As to the pharmaceutical companies and the regulators-I have not had time to cover them today-will the Government revisit and if possible implement the conclusions of the 2005 Health Select Committee report, volume I, which recommended a review of the activities of the Medicines and Healthcare Products Regulatory Agency? These are serious and urgent matters and I hope that the department and the Minister will give them their fullest attention.
Baroness Bottomley of Nettlestone: My Lords, I warmly congratulate the noble Earl, Lord Sandwich, on raising this matter of great importance. I think that all of us greatly respect his commitment to and interest in this issue and the depth of his research and investigations. My earliest involvement in this subject was in the early 1970s when I worked in child guidance clinics in Brixton and Peckham. I was all too aware of the number of mothers whom I met who had been prescribed Valium or Librium for their problems, which did not seem to help them one little bit. In some cases, it seemed to remove the inhibitions that they might otherwise have had and their family situation deteriorated faster.
I can understand what it is like to be a general practitioner in an impoverished area where a great number of people come into the practice with insoluble social, psychological and economic problems. The requirement of a patient for a pill for every ill must have been irresistible. One of the great strengths of GP fundholding was forcing and enabling general practitioners to look at the opportunity cost of pharmaceutical routes. Some of them could prescribe more cautiously and employ a counsellor or a more appropriate resource to help these patients, the problems of many of whom were highly complex and difficult-even intractable. For some of them, with the best will in the world, the general practitioner was very poorly equipped. However, once a benzodiazepine is prescribed, addiction can easily develop.
I am aware that all medication has side effects. For every physician and clinician who prescribes any product, there is a risk-benefit analysis. Many of those who visit a physician in these circumstances are in a deeply troubled and disturbed state. I also accept that when you look at the detail, for example, of the Royal College of Psychiatrists' 1997 report, or at the NHS
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In days gone by, particularly when benzos were still within patent, it may have been that pharmaceutical companies oversold their benefits and the drugs were overpushed as a solution to too many problems. That is no longer the case, because the drugs are now into the generic space and there is not the same advantage to the pharmaceutical companies of overpushing these products. Neither are we a nation of great pill pushers.
However, a great number of people suffer from anxiety and mental health conditions and we have been all too slow at making talking therapies as available as a pharmaceutical outcome. We need to consider all those contributing elements as we look at our problems today. I very much hope that, with the review that the Government have in hand, they will look again at the pathway of care for many of those who have ended up addicted. It of course starts with the general practitioner and with looking to all community resources, as well as with perhaps looking at the acute sector. I hope that they will reissue guidance and that, given this new start with general practitioners in a much more powerful position in commissioning care and planning care pathways, they will be absolutely certain that the real facts, and the issues and concerns over benzodiazepines, are properly understood.
The noble Earl referred to Professor Heather Ashton at Newcastle University. She and others have taken care, time and trouble to look at ways in which addiction can be tackled. But, once addicted, all will be aware that the withdrawal of the product is extraordinarily difficult. Debate has been mentioned about the National Treatment Agency possibly taking over this field. This is not a preference for the All-Party Parliamentary Group on Involuntary Tranquiliser Addiction. There is real anxiety that, instead of getting better, things will somehow get worse and fall between the cracks. The Government will make their decisions, but I think that all of us would ask that if this is a step forward it must be taken from first principles. The arguments, issues, dangers and risks must be properly addressed if the agency takes on that additional responsibility.
I, too, ask the Government for the timetable of the review. I would like to know more about the review. Who is chairing it? Who is being consulted and what are the real objectives? I ask the Minister to assure us that the result will be not only a review but guidelines for best practice. As the noble Earl said, all too many people at this moment are involuntary addicts of benzodiazepines. The danger, the damage, the hurt and the pain, not only for those individuals but for their families, are almost without cost. I very much support the noble Earl.
Baroness Masham of Ilton: My Lords, I thank my noble friend the Lord Sandwich for this short but important debate. His close association with this difficult
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An estimated 1.5 million people are addicted to benzodiazepine drugs in the UK. Many of these people will have been addicted for long periods. There is a common pattern to their submissions. First, there is a visit to their GP and a prescription for a particular benzodiazepine, followed by years of repeat prescriptions, often without review. For many patients, the drug initially alleviates their symptoms, but for others the symptoms continue and their general health deteriorates.
The British National Formulary states that benzodiazepines are indicted for short-term relief-two to four weeks only-of anxiety that is severe and disabling or which subjects the individual to unacceptable distress. It states that the use of benzodiazepines for short-term "mild" anxiety is inappropriate and unsuitable and advocates that withdrawal from benzodiazepines should be gradual, as abrupt withdrawal may produce confusion, toxic psychosis, convulsions or a condition resembling delirium tremens.
"Ms R was prescribed benzodiazepines following treatment for alcohol addiction. For the next 28 years her doctor allowed her repeat prescriptions of the drug despite the fact that she continued to experience feelings of anxiety and ill health. More recently she has attempted withdrawal but failed on a number of occasions. Her GP told her his medical training did not equip him with the skills to help her withdraw, so she approached her local Drug and Alcohol Action Team (DAAT) who refused to help her as she was 'only a prescription drugs addict.' She was told that, as her GP had created the problem, it was up to him to solve it. Her DAAT told her that, if she had become addicted to benzodiazepines through illicit use, they would have been able to help her".
Clearly, there must be a more joined-up approach to educating all health professionals, from pharmacists to nurses and doctors, to ensure that they are able to help vulnerable patients. Despite the fact that the guidelines have been made quite clear about prescribing benzodiazepines, repeat prescriptions for longer than two-week to four-week periods continue to be allowed. Conversely, some GPs continue to try to reduce the benzodiazepine usage of their patients too fast, which is most dangerous. What can be done about this?
The drugs, which contain codeine and include brand names such as Nurofen Plus and Solpadeine Plus, are sold over the counter and are routinely used to ease headaches, back pain and period pains. Official figures show that tens of thousands of people have become dependent on them, many accidentally, with women at the most risk of developing an addiction. Warning that addiction can begin after just three days, the Medicines and Healthcare Products Regulatory Agency has said that, from this year, all packets of painkillers will carry a prominent warning label that will read, "Can cause addiction after only three days' use". Also,
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With so many problems in the training of junior doctors and student nurses, it is important that the British Medical Association, the General Medical Council and the Royal College of Nursing should ensure that all medical students and nurses are trained to recognise the symptoms of physical dependence and addiction to drugs, including over-the-counter and prescription medications, and that voluntary groups working in this field should be supported. There is the added problem of people ordering drugs such as anabolic steroids over the internet, despite the potential health risks. Does not the Minister agree that the safety of all drugs should be made a priority?
Lord Mancroft: My Lords, your Lordships will be grateful to the noble Earl, Lord Sandwich, for initiating this important debate. I commend the noble Earl on his courage in describing through the example of his own family the particular and peculiar degree of suffering as the result of addiction to benzodiazepines and other prescription drugs. I declare an interest as chairman of the All-Party Group on the Misuse of Drugs. My predecessor, Dr Brian Iddon, who retired at the last election and to whom I pay tribute for his commitment to and tireless work for the group, set up an inquiry and produced in January 2009 a report on addiction to prescription and over the counter medication. I would suggest that the report is required reading for anyone with an interest in this subject. It is by no means perfect, and I am aware that the All-Party Group on Involuntary Tranquilliser Addiction did not agree with all the recommendations, and consequently produced its own report. Having read both reports, I see little of substance to separate them. More important is that it appears that there has been little reaction to either report from those responsible for this appalling situation.
And this is an appalling situation. It is now pretty clear that a very large group of patients, through no fault of their own, are suffering debilitating physical and psychological symptoms to the point where many are incapable of leading remotely normal or happy lives. It is not clear exactly how many people are in this position, but it seems likely to be well over 1 million. That is significantly more than the 350,000 chronic and chaotic illegal drug addicts who clog up our criminal justice system and take up so much of our time and money.
Interestingly, I have had more briefing for this debate than for almost any other that I have taken part in. For example, I was intrigued to learn from Professor Hamid Ghodse's recent annual report on drug related deaths in the UK that out of a total 2,182 deaths last year, 20 per cent were caused by heroin or opiates, which is perhaps not particularly surprising. However, 10 per cent were as a result of prescription drug overdose. More significant is the number where a mixture of illegal, prescription, over the counter drugs and alcohol are the cause of death. I shall return to this point at the end of my remarks. Whichever way you look at it, this is an unacceptable situation. What
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The problems we are discussing have been known about since the 1980s, if not earlier. I wonder, too, how much of this is the result of the cosy relationship between doctors, the drug companies and the department. The previous Government are to be congratulated on setting up last year the review which is the subject of this evening's debate. From correspondence I have seen, it appears that the terms of that review may have been amended and reduced by officials-quietly, I suspect, while one Government went and another came. I hope, when he comes to reply, that my noble friend will be able to reassure the House that the review will be thorough, all-encompassing, and that it will be completed in a reasonable time. I hope, too, that this Government will publish the report, that it will include recommendations-a point made by another speaker earlier in the debate-and that those recommendations will be subject to consultation among the relevant stakeholders. We should also remember that the Government are currently reviewing their drug and alcohol strategy, for which the consultation period will shortly draw to a close, but I hope that my noble friend will be able to reassure the House that the issue of addiction to prescription drugs that we are discussing tonight will form a significant part of the review and be included in the Government's proposals when the strategy comes out.
In respect of this, I should like to make two final points. I referred earlier to the number of deaths caused by a mixture of different drugs and alcohol. Increasingly, whether we like it or not, we live in the age of the poly-addict-the addict who will take any or all sorts of drugs. I know that some seek to differentiate between involuntary addiction to prescription drugs and the use of illegal or street drugs. Having said that, I have never met a voluntary drug addict, whatever drug they were taking. But the resulting health problem is that of addiction. It does not much matter whether you break your leg ballroom dancing, playing cricket or falling over outside the pub, having had a glass too many. What matters is that you have a broken leg and it needs to be fixed. That is the key point.
The noble Earl said clearly that he does not believe that the National Treatment Agency has the expertise to provide the specialist withdrawal services that benzodiazepine addicts need. He is certainly correct in that, and indeed I wonder who does have that expertise. I could argue that the National Treatment Agency's main area of expertise lies in prescribing drugs such as methadone rather than in helping patients off drugs altogether, which could suggest that it is part of the problem rather than part of the solution. What matters is that the solution is one of appropriate healthcare, which currently is not being provided either for involuntary
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That brings me to my last point. Whatever happens, the solution to this problem lies in proper regulation of prescribing, better training of doctors and other healthcare professionals, the provision of high quality detoxification and treatment for all addicts that gets them off rather than keeps them on drugs, and assistance back into the work place. In other words, it is a health solution, not a criminal justice one, and that is why it is so welcome that the Minister responding to tonight's debate is a Minister from the Department of Health, not one from the Home Office. That, at least, is progress.
Baroness Meacher: My Lords, I thank the noble Earl, Lord Sandwich, for creating the opportunity to raise important issues relating to the over prescribing of benzodiazepines and other prescribed drugs. The noble Earl referred to the huge numbers of patients who remain addicted to these hypnotic drugs for decades, and set out graphically the side-effects and symptoms of withdrawal. It will not surprise some noble Lords, least of all the Minister, that for me this debate raises the possibility that regulating rather than criminalising medical marijuana use might help to reduce the pressure on GPs to prescribe benzodiazepines. Has the Government's review of dependence on and withdrawal from benzodiazepines considered this possibility? If not, will the Minister extend the review to assess the possible benefits and savings from a medical marijuana use policy in terms of the reduced use of costly and dangerous prescribed drugs?
We know that benzodiazepines prescribed for anxiety can, over time, exacerbate anxiety rather than alleviate it. We also know that elderly people on benzodiazepines are more likely to suffer falls and broken hips than other elderly people. Would cannabis be a safer option for people in constant pain or other discomfort who have difficulty sleeping? No GP should recommend cannabis for people with anxiety-I wish to be quite clear about that. They should be recommended for cognitive behavioural therapy, a well-tried and highly successful treatment.
International research, however, shows the considerable medical benefits of cannabis for a wide range of ailments and I shall mention a few. I could go on and on about this but I will not, your Lordships will be glad to hear. Benzodiazepines have no such benefits. Patients with respiratory complaints, for example, who are prescribed cannabis in other countries to help them sleep, and who use a vaporiser for the smokeless delivery of cannabis, show meaningful improvements in respiratory function; not only do they sleep better but they recover, at least to some degree, from their respiratory disease. Cannabinoids, a key ingredient of cannabis, which would be enhanced in a regulated system of MMU, can grow new brain cells, researchers tell us, fight brain cancer, aid mental health and reduce inflammation. Again these matters need elaboration but there is no time tonight.
So what is the international experience of medical marijuana use? In at least 14 US states and Washington DC, covering more than 20 per cent of the population, the law stipulates that individuals who receive a recommendation from a medical doctor for marijuana use for medical purposes are allowed, in most cases to grow, and in all cases to possess and use, limited amounts of the drug. The law also protects caregivers who are involved in those activities.
In Canada, the medical marijuana access programme was established after a ruling by the Ontario Superior Court concluded that the blanket prohibition of cannabis use violated constitutional rights for individuals who could derive medical benefits from marijuana use. In 2003, another ruling of a higher court required the Government to establish a government-sponsored supply of marijuana for medical use. This is crucial. It has been estimated that 40 per cent of patients in these other countries prescribed marijuana suffer from serious illnesses such as cancer, AIDS, glaucoma, epilepsy and multiple sclerosis. The remainder have ailments such as anxiety, sleeplessness, ADHD and assorted pains. How many of such patients in this country, where cannabis is illegal even for medical use, are prescribed benzodiazepines or equally dangerous prescribed drugs? Will the Minister include an exploration of this issue within the review?
The Minister may think that such a step would run counter to the UN conventions and the United Nations Office on Drugs and Crime. I can reassure the Minister that every step away from the criminalising of drug use towards a health-based approach is in line with UNODC policy. That august body, which is responsible for the UN drugs conventions, issued a ground-breaking discussion paper in March arguing for the first time that UN conventions need to be reinterpreted, leaving behind the criminalising policies in relation to drug use of the past 50 years. The new executive director of the UNODC, none other than a Russian, Mr Fedotov, in his first statement on taking office, reaffirmed the commitment of his organisation to promoting a health-based focus on drug use policy across the world.
Many patients are suffering unnecessarily because of the misguided drug use policies of the past 50 years in this country. The coalition Government are looking for significant opportunities for public sector cost savings which deliver improvements in public experience. The drugs policy is probably the most fruitful candidate for making a major contribution to public sector savings in a constructive way which will benefit our communities. The introduction of a medical marijuana use policy would be a valuable start. I hope the Minister will agree.
I have never taken diazepam but it did help me sleep on one occasion. I had just qualified as a junior doctor and, on my first night on call, I got to my bed shortly after 12 o'clock. I was suddenly seized with the anxious thought that I could not think of a single
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As a young doctor-particularly as a young psychiatrist and one who specialised in psychotherapy and worked in an addictions department-I became familiar with the whole question of benzodiazepines. The first thing to say is that although this is a group of drugs, they are not identical by any means. I remember that in those early days, diazepam and a number of other drugs of that kind had been used and it was beginning to become apparent that for many people they had addictive qualities, and a new drug, lorazepam, was sold under the drug name Ativan. We were recommended this drug because it was believed that it was much less addictive. As it turned out, it was much more difficult to get patients off it. It had a very unusual profile: you could reduce the dose of the medication by a half, even by three-quarters, without any terribly serious effect, but getting them off that last bit was extremely difficult.
The point is that benzodiazepines as a group are not all identical with each other-they have different components-and they are addictive because they are effective for many people in relieving them of their anxiety and helping them, for example, to get to sleep because some are used as hypnotics rather than anxiolytics. That is not to take away from the tragic stories which have been recounted in the debate, which are also absolutely true and the case. Many people suffer because they become dependent but we must remember that many people function and get on with their lives, get to sleep at night and operate the next day. They are able to manage with their anxieties and difficulties precisely because they have access to these medications. Therefore the idea that this is a kind of modified cocaine or something like that is to not understand the need for some of these medications.
The noble Baroness, Lady Meacher, referred to the medical use of marijuana. Given all the indications, it was interesting for how long we knew problems were arising with the use of marijuana that people refused to accept. It is only in the past few years that people have been prepared to point up the increase in psychosis among young people who use marijuana and the increase in suicidal behaviour. The idea that we should shove aside benzodiazepines and introduce medical marijuana would need a great deal more exploration. There are major problems with even medically-used marijuana and we need to be very careful about it.
My preference is to move to psychological methods of treatment and I wish to say two or three things about that. First, many patients do not want to adopt
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But there is a further component. We began to notice in Northern Ireland in the late 1960s and the early 1970s a major increase in the prescription of benzodiazepines in the areas around where there had been street trouble and riots. It was not in the areas where they were happening, but in the areas around-the penumbra, as it were-where people as a whole community were terrified about what might happen to them and their families. In other words, you were not dealing with a mental illness; you were not dealing with a personal problem; you were dealing with a societal problem of anxiety on a large scale. In the end, the only way to deal with that was to deal with things at a social level and to try to remove the fundamental problem.
Here we have a problem of the moment. The serious economic crisis that we face, the austerity that all of us experience and will experience, is going to make life more difficult for people to manage. That is just a piece of reality. So, in looking at the individual question of how we deal with the withdrawal of dependent people from drugs, there is a particular approach-a psychological approach, a medical approach and the provision of talking therapies-that we can take. However, let us not imagine that if we go down that road it will be cheaper than the prescription of medication, because it will not be. It will be more expensive to pay for the time of people. Cognitive behavioural therapy is very helpful, but it is very rarely a short-term resolution for all problems.
But one opportunity is opened up for us in the proposals of the Government for reform of the health service; that is, by devolving more control and more decision-making to a local level, particularly in relation to local councils, which also have responsibility for the provision of social care. It may, I hope, be possible for general practitioners and others in acute primary care to see the resolution of a lot of the anxieties that were raised, for example, by the noble Baroness, Lady Bottomley, whose experience as a social worker let her see how the prescription of medication was used to deal with social problems. If social services departments can co-ordinate much better with primary care, it becomes possible for general practitioners not to prescribe medications of any kind but more to relate to those whose responsibility it is to deal with social service and social care problems.
I therefore hope that the Minister will be able to tell us something about dealing with benzodiazepines, but
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Last November, the noble Earl pressed me as the then Minister about this important matter and I assured him that the promised review would report this year, 2010. I understand that this has now been extended to next year. I join the noble Earl in his disappointment, given that we know the scale of the problem. I also join the noble Baroness, Lady Bottomley, in saying that this issue should not fall between the cracks of reorganisation.
I understand that the extended review includes a literature review, an audit of selected PCT prescribing data and a survey of the withdrawal assistance that is available from the voluntary sector. However, many believe the review to be a case of too little, too late. The terms of reference have been shrunk; the completion date is repeatedly extended; and patients have been excluded from the process. This is a far from satisfactory situation and I hope that the Minister will be able to give us more comfort than seems apparent. It is simply not acceptable in these days of sophisticated medication that people should take prescribed drugs in good faith and then find themselves incapacitated when they try to stop taking them.
Given the limitation in the time that we have this evening, I wish to address two areas. The first is in the context of the treatment of depression. As the Minister will know, NICE guidance on the treatment of mild to moderate depression and anxiety disorders recommends cognitive behavioural therapy as the treatment with the strongest evidence base for efficacy. For this reason, the Labour Government invested £173 million in the Improving Access to Psychological Therapies programme to train a new workforce of 3,600 people in cognitive behavioural therapy in the three years to 2010-11. Will the Minister explain what the future holds for psychological therapies? With GP commissioning coming down the track, this seems to be yet another matter that is riven with uncertainties.
I raise, secondly, SSRI antidepressants, which I discussed with the noble Earl before our debate. I think that we agree that this is also a matter that is linked to this discussion. We know that they are effective treatments which have benefited millions of people. Since completion of the review by the expert working group in 2004, every effort has been made to issue updated advice as appropriate, and communications are issued to healthcare professionals via the central alerting system, the MHRA website and the Drug Safety Update. What is the current position on the usage and ongoing reviews of SSRIs? Can we be sure, for example, that no person under 18 is prescribed a drug such as Seroxat? I feel strongly about this issue, because a relative of mine has never recovered from having been prescribed Seroxat when he was 15 years
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The Parliamentary Under-Secretary of State, Department of Health (Earl Howe): My Lords, I join other speakers in thanking the noble Earl for having called this debate, which has prompted some excellent contributions from all speakers. This is an issue of considerable importance and I am well aware that it is of great concern to the noble Earl's own family. I know that he made a moving statement on this question to the All-Party Parliamentary Group on Drug Misuse last December. I commend the all-party group for its report on dependence on prescribed and over-the-counter medicine.
When most people consider the harmful effects of drugs and drug addiction, they will tend to think of illegal drugs such as cocaine and heroin. They will be less likely to think of the drugs that are available perfectly legally from their GP or over the counter at their local pharmacy. The harmful effects of addiction to medicines for pain relief, anxiety or insomnia do not make for lurid headlines. People assume that if your doctor has prescribed a drug, or if you can buy it at the local chemist, it must be safe. In most cases, it is, but this is not the whole story. Unfortunately, some people suffer the consequences of dependence on medicine. At the Department of Health, we receive a steady stream of letters from people whose lives, or the lives of their loved ones, have been badly affected by addiction to tranquillisers or other prescribed medicines. To them, I say that we acknowledge the problems that they face and are working systematically to understand how services can be improved.
I should also like to pay tribute to the NHS and voluntary organisations that are already doing so much to help people withdraw from prescribed and over-the-counter drugs, but we need to know more about how well placed these services are to meet the needs that exist and what support might improve them.
To tackle this problem properly, we must first understand it. The Department of Health has asked the National Addiction Centre to conduct a literature review to identify and assess the existing medical and scientific evidence about the scale and nature of the problem and how it can be treated. We also need reliable information about how many people are dependent on medicine and how many need help to withdraw.
The true scale of the problem is hard to quantify. I will say a little more about that in a minute, although I recognise that the APPG offered an estimate. To a large extent, the misuse of prescribed and over-the-counter
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The department has also asked the NTASM to map the extent of current service provision to help people withdraw from dependence on legal medicine. We have asked to see the results of this work by the end of this year. After Ministers have had an opportunity to consider the findings, we will share them with interested individuals and organisations to inform a debate about where we go from here. In advance of their publication, I shall set out how the initiatives already announced will help to improve services for this group of people. The Secretary of State for Health plans to create a new, integrated public health service to promote public health and encourage behaviour change to help people live healthier lives. The treatment of dependency will be a priority of a public health service. The public health White Paper, due for publication later this year, will set out the service's role in the rehabilitation of people whether they are dependent on illicit drugs, alcohol or legal medicines.
Later this year, we will publish a new drugs strategy; the consultation on that closed last week. We are now looking at the responses received to inform the development of that strategy, but we are clear that we want to achieve a closer integration of services to help people, regardless of the substances on which they are dependent, to live full lives, participating actively in society. I mention those forthcoming policy statements because they will set the context for our future work.
I referred to the letters we received from those affected by addiction to medicines. The letters are often heartbreaking. If there are more people affected in the same way, we need to know and to act. Equally, if we are to intervene and make this a priority for the health service, we need to ensure that we provide the right help in the right way. We all know that funding is extraordinarily tight; there will be difficult choices to make. Before local commissioners commit resources to dedicated medicine addiction services, they need the evidence that that spending will be effective.
There are good examples of areas where local commissioners have recognised a need in the area and have commissioned dedicated services. Bristol's Battle Against Tranquillisers, or BAT, is working with primary care trusts and mental health trusts across the West Country to provide dedicated counselling group therapy and telephone advice for people dependent on medicines. It is also educating GPs about the risks of tranquillisers and safe and effective methods of withdrawal. BAT also provides advice and counselling sessions at a number of prisons where benzodiazepine use is particularly high among older inmates. I commend the hard work of local NHS and third-sector organisations like BAT, and similar organisations across the country, in helping to deliver these vital services.
There may be a greater role for chemists and practice nurses to help in planning and delivering withdrawal programmes. There was already a great deal of advice available to GPs about the risk of addiction in prescribing benzodiazepines, sleeping pills and painkillers. Advice is also available to help clinicians manage patients' safe withdrawal, and is set out in the British National Formulary, in clinical knowledge summaries and on the Patient UK website.
I was asked by more than one noble Lord about the scale of the problem of people addicted to benzodiazepines. Evidence to the All-Party Group on Drug Misuse estimated that 1.5 million people were so addicted. However, further work is needed to reach a more statistically reliable estimate of the scale of dependence on these medicines. That estimate was worked out by researchers for a television programme broadcast 10 years ago using prescribing figures for one primary care trust, which were then extrapolated to arrive at a national estimate. It can easily be seen that we need to revisit this question.
In any event, overall numbers of prescriptions do not by themselves show the scale of the dependence. Many prescriptions, including long-term prescripts, are clinically appropriate: that is, they are based on the doctor's full knowledge of their patient's condition and deemed by the doctor to be beneficial. In some cases, tranquillisers are prescribed as part of a full package of medication for conditions such as epilepsy or multiple sclerosis. It is also important to note that prescription numbers overstate the true numbers of patients, as those figures will include repeat prescriptions for the same patients.
A number of noble Lords questioned whether the NTASM was the appropriate body to be commissioning the services for people who become addicted. In fact, as I am sure your Lordships will know, the NTASM does not directly provide treatment services. NHS drug and alcohol services are there to do that job. I do not agree that drug and alcohol action teams are not best placed to help people addicted to drugs. DAATs commission to provide help for a wide range of drug users, including people dependent on medicines such as tranquillisers. In many cases, services for people hooked on such drugs are provided at different sites than those for people hooked on illicit drugs. Case workers are fully qualified to advise people who need advice on withdrawing from prescribed and over-the-counter drugs. Services for people trying to withdraw from benzodiazepines are offered in a sympathetic way, with sessions held at separate sites or at different times by some PCTs to make users feel more comfortable. When I asked about this, the advice was that treatment providers would typically treat each case on its individual clinical merits, both psychosocially and pharmacologically. Examples of these services are established in specialist clinics to treat those with addiction to medicines such as benzodiazepines.
Mention was also made of the 2004 Health Select Committee report. The previous Government published a response to that report in 2005, replying to all the recommendations in it. As a result, the MHRA has made a number of improvements given the concerns in the report. Time prevents me from reading them
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The noble Baroness, Lady Thornton, criticised the Government for not involving people directly affected by dependence on benzodiazepines. In fact, the review under the previous Government, which as she knows was not a formal public consultation-there was therefore no formal requirement to consult external stakeholders-nevertheless included a programme in which officials contacted most of the main patients' organisations and obtained their views on the way forward. That was very helpful background to the work that we are now doing.
The noble Earl asked about support for the voluntary services in Liverpool, Oldham, Bristol, Belfast and elsewhere. He will know that decisions about funding of local services for people dependent on medicine are based on local needs. We are aware of several PCTs that fund withdrawal counselling.
Time prevents me from going further, although I do have further information and will write to noble Lords whose questions remain unanswered. I apologise for not being able to do so now. Contributions made in today's debate illustrate graphically the concern felt by this House on the issue, which I and my ministerial colleagues take extremely seriously. I look forward to sharing the results of our reviews with noble Lords as we develop policies and services in the light of evidence.
(a) who may make a claim for an award;
(b) to whom a claim for an award is to be made (which may be provision that it is to be made to the High Court or, in Scotland, the Court of Session);
(c) the procedure for making and deciding a claim;
(d) the circumstances under which compensation must be awarded (which may include provision that the circumstances involve negligence or other fault);
(e) the amount that is to be awarded;
(f) who is to pay any compensation awarded (which may include provision that it is to be paid or reimbursed by the Treasury);
(g) how compensation is to be paid (which may include provision for payment to a person other than the claimant)."
Lord Davidson of Glen Clova: My Lords, the purpose of our amendments is to raise the broad issue of compensation and indemnity for consideration by the Committee. The suggested amendments have, as their provenance, the Australian terrorist asset-freezing regime. There are two principal parts to our proposed scheme: first, to indemnify persons from civil litigation for loss suffered as a result of having assets wrongly frozen when the person holding the asset has acted in good faith and without negligence, which includes protection from the Crown, needless to say; and, secondly, to compensate those persons who have suffered loss as a result of having assets wrongly frozen, when the person holding the asset has acted in good faith and without negligence.
The draft of the proposed amendment differs from the Antipodean legislation but follows the same approach as adopted in Australia. The position in Amendment 52 on indemnity is self-explanatory-namely, to exclude liability when the person has acted in good faith and without negligence in compliance or purported compliance with this part. It then sets out, perhaps a little inelegantly, how the various persons and institutions might be identified by reference to designation.
The second, related, aspect is compensation, set out in Amendment 46, which suggests a power for the Secretary of State to make orders providing for compensation when people have suffered loss as a result of an incorrect designation. The order may include various provisions, as is set out in the proposed amendment, on who can claim for an award, with which court the claim may be made, and so on. The phrase adopted,
would include persons incorrectly covered by a designation, such as someone with a similar name or the same name as the designated person-and US experience teaches us that that has become an increasing problem with terrorist-related issues. It would also include a designated person who has had their assets frozen incorrectly-for example, inconsistently with an applicable licence.
As I indicated earlier, we understand that the Government consider that there is sufficient compensation by way of a mechanism through appeal to the court. When I queried the Minister about this, I am not sure that I detected a complete response to our understanding. If my understanding is correct, one is in the position that the Appeal Court may make these orders, presumably by way of compensation. It would be helpful if the Minister could give some indication as to how it might be envisaged that such a process would work. It may be that it is seen as part of the judicial review process. Again, it would be helpful if it could be indicated how that might work.
The Government have also not included any particular compensation scheme in this Bill, but in so doing have distinguished the Bill from the Anti-terrorism, Crime and Security Act 2001, which provides a compensation scheme to be included with a freezing order. The proposal that is before the Committee in this amendment seeks to redress the dissonance between that Act and this Bill and to provide a transparent compensation scheme together with a proposed scheme for indemnity.
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Baroness Noakes: My Lords, I am sure that the Minister has "resist" written in large letters all over his speaking notes, but before he rushes to do so I shall add one example from the real world, which came to my party when we were preparing for the emergency Bill earlier this year. Our adviser at that stage, who was an eminent QC, gave us an example in relation to analogous legislation in which a company had been included on a blocked list because its shares had previously been held by a suspected person. Some months before his inclusion on this list, the person had sold his shares in the company on an arm's-length basis and for value, but the company was nevertheless incorrectly included on a blocked list. It took a fair amount of time for the designation to be challenged and for the various other licences to be obtained, but in that intervening period the company suffered a considerable period of loss. My point in raising this is merely to say that there are real-world examples when loss can occur. We are not dealing with theoretical situations of safeguards to be included in the Bill. I hope that the Minister can give some reassurance to the Committee that remedies are available when that sort of situation arises.
The Advocate-General for Scotland (Lord Wallace of Tankerness): My Lords, in responding to the amendment, I congratulate the noble and learned Lord, Lord Davidson of Glen Clova, on a very productive summer working on the Antipodean experiences, based on questions that he had already asked my noble friend Lord Sassoon, which are the origins of these new clauses. They raise important points about compensation in very real situations, such as the one described by my noble friend Lady Noakes, when an incorrect designation can lead to consequences of loss for those who have been wrongly designated, and also on the question of indemnity.
Amendment 46 introduces a new clause that imposes a duty on the Treasury to make an order providing for compensation for persons who have suffered loss as a result of an incorrect designation. The noble and learned Lord, Lord Davidson, said that this was based on Australian legislation in a similar field, and referred in his closing remarks to a parallel provision in the Anti-terrorism, Crime and Security Act 2001, under which the Treasury may include a provision for the award of compensation when a person has suffered a loss as a result of a freezing order or in relation to a licensing decision. The word "may" marks the distinction between the 2001 Act and the new clause before us today, which makes it a requirement by using the word "shall".
With regard to our position, my noble friend Lady Noakes rightly anticipates the word "resist", not because we do not recognise that there is an important issue here to be addressed but because the Bill already includes a number of important safeguards, including the right of any affected person to challenge a decision of the Treasury. Indeed, following our amendments,
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I note that the new clause, as drafted, is in respect of an incorrect designation-in other words, it goes to the heart of a designation that has been made. That is in the terms of the new clause that has already been debated and which the House will vote upon later. The new clause relating to appeals to the court relates to a decision of the Treasury to make an interim or final designation of a person. I refer the Committee to the terms of that new clause, at Amendment 57:
Therefore, as I have indicated, we believe that it would be possible, in connection with a successful challenge against the designation, for the person to claim damages, and it would be open to the court to award damages to a successful applicant. Indeed, there may be other circumstances-
Baroness Noakes: I apologise for interrupting the Minister. If I turn to Amendment 57, I see that it is the designated person who may appeal, which does not include all the potentially affected persons. Would he comment on that?
Lord Wallace of Tankerness: I acknowledge that point. My understanding is that if a person other than the designated person had suffered loss as a result of a decision of the Treasury, it would be possible for them to raise an action. I will get further information to confirm that to my noble friend, but the person whose designation is being challenged-the designated person-would have a forum and an opportunity in that context to seek damages. It may also, in some circumstances, be open to a person to claim damages under the Human Rights Act if the particular circumstances so arose, and therefore we not believe that any further provision for compensation is necessary.
The purpose of Amendment 52 would appear to be to increase the protection from prosecution given to a person complying with the provisions of Part 1 of the Bill. It would achieve that by specifying that no person complying with Part 1 was liable to court action as a result of such compliance. Again, the intention behind this is understandable, and we recognise that the rationale is to provide that additional protection from claims made against persons-it could be, for example, bank employees who have quite dutifully acted in compliance with the requirement under Part 1 of the Bill. However, we do not believe that the proposed clause is necessary. It is already a defence to claim that a person was acting in compliance with a lawful requirement, and the Government believe that this principle is sufficiently well established that the drafting of the Bill does not need to be amended. In fact, the basic principle is
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Lord Pannick: I would like clarification in relation to compensation. As I understood the Minister, he suggests that Amendment 57, giving the court the power to make such order as is considered appropriate, would be broad enough to empower the court to award compensation to the affected individual who had been designated. Is the Minister saying that this provision is broad enough and is intended to overturn the general principle of English administrative law-and, I presume, Scottish administrative law-that the law does not normally provide compensation for those who have suffered direct loss as the result of invalid administrative action? One normally needs to show some tort, a misfeasance-that either the official knew that what he was doing had no lawful basis or he was at least reckless. If it is the intention to give the court a power to grant compensation simply for the invalid nature of the designation, would it not be better to say so expressly in the Bill?
Lord Wallace of Tankerness: I am grateful to the noble Lord for that intervention. I sought to draw a distinction, which I think my noble friend Lady Noakes made, under Amendment 57, where the question is of the designated person himself or herself. My noble friend made a different point, the position on which I indicated I would write to her and clarify.
My understanding is that it would be possible for the court to make, as he says, such orders as it considers appropriate. That is not qualified in any way, although I take the noble Lord's point. If indeed it requires further specification then I will be willing to consider that. If it is felt that the nature of what is in the Bill, although it seems very wide, is insufficiently wide to cover the reassurance that I have given, I will undertake to look further at that.
Lord Davidson of Glen Clova: I am invited to withdraw, and the Minister has always been remarkably persuasive when I appeared against him in court. There are a couple of points though. First, one cannot write off the Antipodes with a wave of the hand in the way that the Minister sought to do; they face the same problems and have produced imaginative responses.
With regard to the question of imposing a duty in respect of compensation, true it is that that differs from the 2001 Act; but it does not avoid the dissonance that the 2001 Act actually refers to a possibility-that is, a discretion in relation to compensation. I invite the Minister at least to consider whether there might be a similar discretion, if not a duty, in the Bill.
In relation to the safeguards already in place, one may obtain damages whether one is the designated person or a non-designated person. I am still slightly confused as to where in the Bill one is to find this. If it
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In relation to judicial review, again, for a party who is not the designated person to raise their own judicial review and proceed to damages is perhaps not necessarily-as a matter of law, as the noble Lord, Lord Pannick, suggests-the most obvious way of acquiring damages. Again, it would be helpful in due course to have some clarification on that. I welcome the Minister's embrace of the Human Rights Act, for which I know he has a strong regard, although it has not always been demonstrated by other members of the coalition. The way in which this is to proceed leaves a certain gap as to where the Human Rights Act will go in these issues. I will accede to the Minister's suggestion that I withdraw the amendment, but I also note that we may well return to this on Report.
Baroness Hamwee: This is a short amendment to Clause 16, which gives the Treasury powers to request information. Under subsection (3) we are told that the power is exercisable only where the Treasury believes that it is necessary to monitor compliance or detect evasion. My amendment would take out "the Treasury believe that" so that it reads "only where it is necessary for the purpose", to provide a more objective test and give one the basis to ask for confirmation that the belief-assuming the clause is unamended-that the Treasury must have is reasonable. I beg to move.
Lord Wallace of Tankerness: I thank my noble friend for this amendment. As she has indicated, the effect of the amendment would be to make the grounds for a request under this part into an objective test by requiring it to be necessary, rather than-as provided and drafted as present-a subjective test. My noble friend would do that through the removal of the reference to the Treasury believing it to be necessary. I
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(a) no evidence relating to any answer given, or anything else done, in response to the request may be adduced by or on behalf of the prosecution, and
(b) no question relating to those matters may be asked by or on behalf of the prosecution,
(a) an offence under section 112 of the Social Security Administation Act 1992;
(b) an offence under section 5 of the Perjury Act 1911 (false statements made otherwise than an oath in England and Wales); or
(c) an offence under section 44(2) of the Criminal Law (Consolidation) (Scotland) Act 1995 (corresponding provision for Scotland)."
Baroness Hamwee: This amendment is longer but I hope the debate will not take us very long. We have just dealt with Clauses 16 and 17, which allow the Treasury to request-though it really comes down to "require"-information or documents. Clause 18 makes it an offence to fail to comply with such a request. I am grateful, as always, to the organisations Justice and Liberty for the amendment, which makes provision in relation to that requirement where providing information or documents might result in self-incrimination.
The Human Rights Act provides under Article 6 the right to a fair trial and that includes privilege against self-incrimination. The amendment is modelled on provisions in existing legislation and would continue to require the person in question to provide the information, but would also provide that evidence which is self-incriminatory should not be admissible in any criminal proceedings against that person. I beg to move.
Lord Wallace of Tankerness: My Lords, as my noble friend has explained, the underlying concern which her amendment seeks to address is that there could be circumstances leading to self-incrimination. The amendment seeks to protect the privilege against self-incrimination. She has also indicated that it is based on provisions in other legislation. I think that the Companies Act may have similar provisions. The amendment appears to be born from a concern that the Bill infringes that right against self-incrimination. I seek to reassure my noble friend and the Committee that the privilege against self-incrimination is not overridden by the Bill. In particular, a concern held by a person that compliance with an information request would infringe that person's right against self-incrimination would form a reasonable excuse. I draw the Committee's attention to Clause 18(1), which states:
We believe that the right against self-incrimination would form a reasonable excuse under Clause 18(1) to refuse to comply with such a request. I believe that this provision is sufficient to maintain the important privilege against self-incrimination to which my noble friend referred. I hope she will be reassured that it is sufficient and that she will therefore withdraw the amendment.
"(ba) to any law officer of the Crown for Jersey or Guernsey;"
Lord Wallace of Tankerness: My Lords, this is a short technical amendment. Clause 19 as a whole provides that the Treasury may disclose information obtained under Part 1 to various persons, organisations and bodies within the United Kingdom and elsewhere for the purposes of facilitating compliance with the asset-freezing regime, promoting co-operation among those on whom it falls to implement it and enabling effective enforcement of the financial restrictions within the United Kingdom and across borders. Therefore, the ability to share information is essential to the maintenance of an effective asset regime. However, I
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My amendment would take that out because it seems to be a very broad power giving the Treasury considerable leeway to set on one side other statutory and common law provisions. There are exceptions in Clause 21(2) but only in relation to the Data Protection and the Regulation of Investigatory Powers Acts. I have two points. First, why do the Government consider that this exemption is necessary, particularly in such broad terms? Secondly, as a minimum it should not include a failure to act in accordance with the Human Rights Act. My noble and learned friend, who may also reply to this amendment, is a great fan of that legislation. He may be able to confirm that it is not possible to carve it out in this way or, indeed, in any way. However, I see that my other noble friend will reply to this amendment. I beg to move.
The Commercial Secretary to the Treasury (Lord Sassoon): My Lords, as my noble friend has made clear, the suggestion behind the amendment is that subsection (1) of Clause 21 gives the Treasury a wide power to disseminate information. It is the intention of the amendment to limit that power. In fact, this provision applies to anyone giving information to the Treasury as well as to any information supplied by the Treasury. Therefore, the purpose of the provision is primarily to protect persons when they disclose information to the Treasury. For example, it protects a
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On the second point that my noble friend raises, the general wording of Clause 21(1) is not, as a matter of constitutional principle, capable of overriding any provision in the Human Rights Act. I trust that these points will be sufficient to reassure my noble friend that this clause is necessary and that the protections in place under Clause 21(2) meet the intention of her amendment. I hope that she will be able to withdraw it.
(a) to make or vary an interim or final designation of a person,
(b) to renew a final designation of a person, or
(c) not to vary or revoke an interim or final designation of a person.
Baroness Hamwee: The amendment would remove Clause 23(4), which applies the provisions of the Counter-Terrorism Act that relate in particular to special advocates and thus applies similar rules of court and similar provisions to those used in control order cases, where there can be determination of proceedings without a hearing and different modes of proof and evidence and so on, with special advocates appointed by the Attorney-General who are not allowed to disclose exempt material to the affected person, who cannot in the normal way access expert evidence and who cannot effectively take instructions from their client. Effective legal representation-this is the contentious issue that expands well beyond the Bill-is difficult if not impossible if it is not possible to challenge the intelligence on which the decision is based. I am concerned about the principle, but in the context of these procedures I am concerned to ensure fair hearing rights, since the right to know the details of an accusation against one is fundamental to a fair trial.
I have spoken quickly because of the time and because I know that others in the Chamber will be able to say more as a result of their own work, both practically and having considered the matter far more than I have. However, I wanted to introduce the amendment and I beg to move.
Lord Pannick: Noble Lords are very familiar with the problems-the unfairness and the practical difficulties-that are caused by special advocate procedures. Clause 23(4) is acceptable only if the person concerned has a right to see at least the essence of the material that is relied on in the case against him, as the Appellate Committee decided in the control order context in the AF case.
The Minister said earlier that fairness depends on its context. I ask him to state clearly on behalf of the Government whether they accept that in this context-the freezing of assets-fairness requires that the individual concerned be personally told the essence of the case against him. I cannot see how it could possibly be fair to freeze a person's assets on a permanent basis, causing all the disruption and damage to their personal life that the Supreme Court explained in the recent case, without that person being told at least the essence of the case against them and having a fair opportunity to answer it. The Appellate Committee in AF made it very clear that the special advocate procedure is wholly inadequate to ensure fairness in that respect, so I hope that the Minister will confirm to the Committee that the Government accept that the AF principles apply in this context.
Baroness Falkner of Margravine: I speak to this amendment on the basis that I was a member of the Joint Committee on Human Rights in the previous Session. I recall that my noble friend the Minister said in his opening remarks some hours ago that he did not want to draw an analogy in the provisions of the Bill with control orders. However, I respectfully suggest that if he looked at the 16th report in 2010 of the Joint Committee on Human Rights, on counterterrorism policy and human rights, which concerned the annual renewal of control orders legislation, he would find that significant aspects of the problems that will arise from Clause 23(4)-not least those of the AF case, referred to by the noble Lord, Lord Pannick-are covered in the report of the committee, which was excoriating. It is a sadness that the previous Government took no account of it whatever.
I do not want to take up too much time at this point in the evening, but let me briefly summarise for my noble friend the three issues that the report raised about special advocates. Those issues were:
after seeing the closed material. The noble Lord, Lord Pannick, has first-hand experience of this, but let me also just read one paragraph from page 21 of that report, which I think expresses quite succinctly what part of the problem is. The report says:
"The special advocates have no means of gainsaying the Government's assessment that disclosure would cause harm to the public interest, and Government assessments about what can
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As well as highlighting the deleterious effect of late disclosure, the report touches on international comparisons and finds that no other country uses special advocates in quite the way as we do by denying the defendant-in this case, the designated person-so many rights to which a defendant would normally be entitled under human rights law.
If the Minister is not prepared, at this hour of the night, to concede that there may be some really problematic issues in retaining subsection (4), perhaps he might consider returning to the issue on Report after further consideration.
The Archbishop of York: My Lords, under the new clause inserted before Clause 22 by Amendment 57, which we have just agreed, designated persons will be able to appeal and will know the case before them, whether their designation is interim or otherwise. Clause 23, "Review of decisions by the court: supplementary", then details supplementary provisions on the reviewing of such cases. Therefore, I would have thought that, if I was designated under an interim order, under the new clause inserted before Clause 22 I would be able to appeal on the case before me. Otherwise, how would the case be heard? For me, that is the order in which things will happen.
If the new clause inserted by Amendment 57 had not been agreed, I would have agreed with the noble Lord, Lord Pannick, that the provisions would not make sense. However, now that the Government have inserted that new clause by Amendment 57, it seems to me that the rest now follows. I would agree with the position of the noble Baroness if we did not have the new clause, but I think that the new clause will allow appeal at all different stages. Therefore, the courts will be able to decide on those matters. Clause 23 just makes supplementary provisions on reviewing such matters.
Lord Wallace of Tankerness: My Lords, Amendment 70 from my noble friend Lady Hamwee raises some important points about the use of special advocates and disclosure, as has been reflected in the speeches in this-albeit short-debate.
Amendment 70 relates to the supplementary provisions in relation to anyone wishing to challenge an asset-freezing decision. Clause 23(4), which the amendment seeks to delete, applies the procedures to be followed in determining an application made to the court for a Treasury decision to be set aside. The provisions of subsection (4) require the maker of the rules of court to have regard both to the need for a proper review of the decision that is subject to challenge and to the need to ensure that disclosures are not made where to do so would be contrary to the public interest such as-to give the most obvious example-for reasons of national security.
As asset-freezing proceedings relate to issues of national security, some cases will inevitably involve the use of sensitive, or closed, material such as intelligence
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The special advocate system and the disclosure procedure are designed to ensure procedural justice for individuals in admittedly difficult circumstances in which in the public interest material cannot be disclosed to them. The special advocate, who is a specially cleared lawyer, will take instructions from the individual and will then have access to the closed material. Without this subsection, the court might not be able to appoint a special advocate, whose role would be to argue for more information to be disclosed to the individual and also, in effect, to mount a challenge against the Treasury decision involving closed information.
As this debate reflects, as other exchanges have reflected and indeed as court cases reflect, the Government recognise that a range of concerns have been expressed about the special advocate system. I assure the Committee that the Government are committed to meeting our obligations under the European Convention on Human Rights with respect to a right to a fair trial and we believe that the special advocate system is part of the process. I can advise the Committee that there will be an opportunity to raise the concerns that this amendment is aimed at more widely during a consultation on a government Green Paper on the use of sensitive information in judicial proceedings. That Green Paper will aim to develop a framework for ensuring appropriate judicial and non-judicial scrutiny of intelligence and security activities in line with the Government's commitment to individual rights, the rule of law and properly protecting national security. It is anticipated that that Green Paper will be published next year.
Ultimately, we must constantly strive to secure in a modern legal framework the best balance between the interests of justice and the interests of security. We referred earlier to the case in which the noble Lord, Lord Pannick, represented the successful appellants. I indicated to him that that case obviously related to control orders and that the Government do not necessarily accept a read-across. I think he will understand why we are not in a position to make that read-across. I pointed out to him in an earlier exchange that fact and context are important in these circumstances. However, I reiterate what I said earlier: our starting point is that, so far as is consistent with the legitimate interests of national security, we should advise persons subject to a designation order what the grounds of that order are.
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