Previous Section Back to Table of Contents Lords Hansard Home Page

I acknowledge that this is a difficult and sensitive matter. I have indicated that we want to look at this whole issue next year on the basis of a Green Paper but, for the purposes of the present Bill and this amendment, we believe that it would be a mistake and not necessarily in the interests of the person who is subject to designation for this subsection to be removed.

6 Oct 2010 : Column 204

Controversial though the special advocate's role may be, we nevertheless believe that it will be necessary in dealing with appeals or indeed judicial reviews that may arise under these provisions.

Lord Pannick: Can we be clear about this? Although the Government have introduced a very welcome right of appeal for persons who are designated, the Minister is telling the Committee that there may be cases where an individual is told absolutely nothing about the reasons for his designation and he will be left to rely on the special advocate, to whom he cannot talk and who cannot take instructions from him. Is that the Government's position?

Lord Wallace of Tankerness: As I believe I indicated when I started to address this matter, the starting point is that the individual should be given as much information as possible, subject to a legitimate public interest concern. That is our position. We would wish to give as much information as possible, subject to the important question of where there may be legitimate national security reasons for not going beyond a particular area. Clearly, a special advocate can argue that that is insufficient. One of the duties of a special advocate is perhaps to challenge the Treasury about whether more information should be made available. Indeed, as court cases show, the courts look at this matter very seriously. However, in terms of the amendment, we believe it is important that the role of the special advocate is in place; otherwise, the amount of protection available to the person who is the subject of a designation order may be reduced.

Baroness Falkner of Margravine: The forensic intervention of the noble Lord, Lord Pannick, has gone to the heart of the problem. If I understood my noble and learned friend correctly, I think he was saying that we will have a Green Paper. That will be some time next year, but in the mean time my noble friend Lord Macdonald is conducting a review of the counterterrorism and security regimes which will report some time this autumn. Yet, we are asked with these events anticipated to leave the Bill as it is. What will we get? Will we have bad legislation which will be overturned shortly as it will be deemed inappropriate if my noble friend Lord Macdonald finds that that is the case; or will it be overturned as a result of the consultation? As this Bill is such an improvement on the previous regime, would it not be sensible to take this improving zeal forward slightly and stick with our consistent respect on this side of the House for the rule of law in civil liberties?

Lord Wallace of Tankerness: I recognise and appreciate the zeal with which my noble friend makes her point. I reiterate that the disclosure process is designed to ensure that the maximum amount of material that can be disclosed to the individual without damaging the public interest should be disclosed. We heard today of the Law Lords judgment in the case of AF and Others that in certain cases, such as control order hearings, even when public interest concerns arise, the disclosure obligations were considerable. Because of the legitimate concerns that have been expressed, we want to look at this issue. We do not need to reiterate the fact that this

6 Oct 2010 : Column 205

legislation has to be on the statute book. I do not think that anyone has advocated that we should extend sunset clauses. It is common ground that we wish this legislation to be on the statute book by 31 December this year. That is not sufficient time to allow this important review to take place, but I can give an assurance that the matter is of such importance that we are looking at it. However, I emphasise that removing this subsection could lead to protection that would otherwise be available through special advocates not being available.

Baroness Hamwee: The noble Lord, Lord Pannick, as my noble friend said, has described the situation very graphically. But his description, my noble friend's flattery or my amendment will not get us further tonight. I am not surprised that the Government resist dealing with special advocates separately in this regime from how they might be dealt with overall. It occurred to me because of the counterterrorism review to suggest a sunset clause to this Bill so that we would be forced to reconsider it all when we had the outcome, but I thought that that would not endear me to my noble friends, and more importantly it is not entirely the proper way to go about things. However, it was quite tempting. I am not at all surprised at the response. I share the concerns that have been expressed and beg leave to withdraw the amendment.

Amendment 70 withdrawn.

Amendments 71 to 73

Moved by Lord Wallace of Tankerness

71: Clause 23, page 12, line 4, after "on" insert "an appeal under section (Appeal to the court in relation to designations) or"

72: Clause 23, page 12, line 4, leave out "review of decisions" and insert "appeals and reviews"

73: Clause 23, page 12, line 5, after "an" insert "appeal or"

Amendments 71 to 73 agreed.

Clause 23, as amended, agreed.

Amendment 74

Moved by Lord Wallace of Tankerness

74: After Clause 23, insert the following new Clause-

"Initial exercise of powers to make rules of court

(1) The first time after the passing of this Act that rules of court are made in exercise of the powers conferred by section 23(4) in relation to proceedings in England and Wales-

(a) on an appeal under section (Appeal to the court in relation to designations), or

(b) on a claim arising from any matter to which such an appeal relates,

those rules (together with any related rules of court) may be made by the Lord Chancellor instead of by the person who would otherwise make them.

(2) The first time after the passing of this Act that rules of court are made in exercise of the powers conferred by section 23(4) in relation to proceedings in Northern Ireland-



6 Oct 2010 : Column 206

(a) on an appeal under section (Appeal to the court in relation to designations), or

(b) on a claim arising from any matter to which such an appeal relates,

those rules (together with any related rules of court) may be made by the Lord Chancellor instead of by the person who would otherwise make them.

(3) Before making rules of court under this section, the Lord Chancellor must consult-

(a) in relation to rules applicable to proceedings in England and Wales, the Lord Chief Justice of England and Wales;

(b) in relation to rules applicable to proceedings in Northern Ireland, the Lord Chief Justice of Northern Ireland.

(4) The Lord Chancellor is not required to undertake any other consultation before making the rules.

(5) The requirements of subsection (3)(a) and (b) may be satisfied by consultation that took place wholly or partly before the passing of this Act.

(6) Rules of court made by the Lord Chancellor under this section-

(a) must be laid before Parliament, and

(b) if not approved by a resolution of each House before the end of 40 days beginning with the day on which they were made, cease to have effect at the end of that period.

(7) In reckoning the period of 40 days no account is to be taken of any time during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than four days.

(8) If rules cease to have effect in accordance with subsection (6)(b)-

(a) that does not affect anything previously done in reliance on the rules, and

(b) subsection (1) or (as the case may be) (2) applies as if the rules had not been made.

(9) The following provisions do not apply to rules of court made by the Lord Chancellor under this section-

(a) section 3(6) of the Civil Procedure Act 1997 (Parliamentary procedure for civil procedure rules);

(b) section 56(1), (2) and (4) of the Judicature (Northern Ireland) Act 1978 (statutory rules procedure).

(10) But section 4(1) of the Statutory Instruments Act 1946 (statutory instruments which are required to be laid before Parliament) applies to any such rules applicable to proceedings in Northern Ireland as it applies to a statutory instrument which is required to be laid before Parliament after being made.

(11) Until section 85 of the Courts Act 2003 (process for making civil procedure rules) comes into force, in subsection (9)(a) above, for "section 3(6)" substitute "section 3(2)".

(12) In this section-

"related rules of court" means rules of court that-

(a) are contained in the same instrument as the rules mentioned in subsection (1) or (as the case may be) (2), and

(b) relate specifically to the same kind of proceedings as those rules,

"rules of court" means rules for regulating the practice and procedure to be followed in the High Court or the Court of Appeal."

Lord Wallace of Tankerness: This group of government amendments make provision for court rules for the hearing of challenges to decisions by the Treasury. Amendment 74 is designed to ensure that court rules tailored to the requirements of an appeal from a designation decision are in place shortly after the Bill is enacted. Having court rules in place might self-evidently be necessary to ensure that there is a procedure for hearing any challenges that commence shortly after Royal Assent.



6 Oct 2010 : Column 207

Ordinarily, court rules are made by the relevant committee-in this case, either in the Civil Procedure Rule Committee or the Northern Ireland Supreme Court Rules Committee. However, the amendment gives the Lord Chancellor power to make the initial rules. It is important to explain that the reason for doing that is entirely one of practicality. Rules are needed immediately the Act is in force and, given the short timeframe, it would be very difficult for the committees to make such provision. We therefore think that the Lord Chancellor is best placed to do so. However, after that initial exercise of the power, any future changes to the rules would be solely for those committees to determine.

A similar situation arose in the context of tailoring court rules for asset-freezing proceedings under the Counter-Terrorism Act. Again, rules were needed to be in place immediately after designation, and provision in that case was made for the Lord Chancellor to make the rules in a similar way. I can assure the Committee that, before making rules, the Lord Chancellor will be required to consult the Lord Chief Justice of England and Wales and the Lord Chief Justice of Northern Ireland as appropriate. Rules must be laid before Parliament and be approved by both Houses within 40 days, failing which they will cease to have effect.

Amendments 92 and 93 make small technical changes to the existing court rules made by the Lord Chancellor under the Counter-Terrorism Act 2008 to apply these rules to any challenges to Treasury decisions other than designation decisions. These will fall to be determined by judicial review. Amendments 89 to 91 make consequential changes, primarily to set out the territorial extent of the amendments to the court rules made by Amendments 92 and 93. Anticipating a possible question from the noble and learned Lord, Lord Davidson of Glen Clova, when I saw these provisions I asked what was the position in Scotland. I am assured that the rules of court in Scotland can be made under the Court of Session Act 1988, that no additional power needs to be taken in the Bill and that the Office of the Solicitor to the Advocate-General has been in touch with the Lord President's private office about specific rules which need to be made. With those reassurances, I beg to move.

Amendment 74 agreed.

Clause 24: Treasury report on operation of Part 1

Amendment 75

Moved by Baroness Hamwee

75: Clause 24, page 12, line 11, at end insert "(including licences granted, varied or revoked)"

Baroness Hamwee: My Lords, I shall speak also to Amendments 76 and 77. The noble and learned Lord, Lord Davidson, and the noble Lord, Lord Davies, have tabled Amendments 78 and 79. My first amendment is to Clause 24, which introduces a requirement on the Treasury to make regular reports. Amendment 75 would ensure that the reports covered not only designation

6 Oct 2010 : Column 208

orders but licences granted, varied or revoked. My second amendment is largely consequential on my earlier amendments. It would extend the report from the powers conferred on the Treasury to the court. It may well be implied under the amendments to which we have agreed to put in place the appeal procedures that they will be included in the report, but I want to be sure about that.

Amendment 77 is an amendment to Clause 25, which provides for an independent review of the operation of the provisions. In the interests of seamless government, with the Home Office reviewing counterterrorism, I would like the Treasury's appointment to be in consultation with the Home Office. I fully expect an assurance that that is what will take place. I beg to move.

9.30 pm

Lord Davidson of Glen Clova: My Lords, I shall speak to Amendments 78 and 79, which stand in my name and that of my noble friend Lord Davies of Oldham. Amendment 78 is self-explanatory. It seeks consolidation of the legislation in relation to terrorist asset-freezing regimes throughout the United Kingdom. I am conscious that time after time it is suggested that all manner of laws should be consolidated, but that is not always possible due to parliamentary time and so on. In this case, I bring to the Minister's attention-although I am sure he already knows-that in Ahmed the Supreme Court has already suggested that consolidation may be useful in this area. That view was repeated by the Constitution Committee. I immediately accept that consolidation is outside the scope of the Bill and, as the noble and learned Lord, Lord Wallace, has indicated, it might produce delay that could not be countenanced, given the need for the Bill to be in place by the end of the year. Therefore, only this limited amendment is proposed. It provides that the independent reviewer should include recommendations about whether there should be consolidation of the legislation.

Amendment 79 is also self-explanatory. It requires the independent reviewer to publish expenses and allowances. This is our usual requirement of transparency in relation to this innovation of a new reviewer.

Baroness Falkner of Margravine:The report by the Constitution Committee, of which the noble Lord, Lord Pannick, and I are members, recommended that there should be consolidation of the legislation. I think there are two other Acts that relate to terrorist-asset freezing regimes. Will the Minister tell us his views on that consolidation?

Lord Sassoon: My Lords, I shall take these amendments in turn. As my noble friend said, Amendment 75 relates to the quarterly report that the Treasury lays before Parliament on the operation of the asset-freezing regime. The amendment specifies that the number of licences granted, varied and revoked should be included in the report. I assure the Committee that we are committed to ensuring the transparency and accountability of the asset-freezing regime, and that is why we have enshrined the practice of reporting to Parliament in

6 Oct 2010 : Column 209

the legislation. The report already provides information on many aspects of the operation of the regime, including the number of licences that have been granted each quarter, and I do not foresee any difficulties in providing the further information requested. Indeed, I am happy to commit to providing such information in the quarterly report under the powers proposed in the Bill. On that basis, I do not believe it is necessary to set out this detail in the legislation and I hope that my noble friend will withdraw the amendment.

Amendment 76 is a consequential amendment that relates to earlier amendments tabled by my noble friend, in particular those relating to Clause 2 that sought to provide the court with powers under Part 1. The amendment simply alters the language of Clause 24(1)(a) so that the quarterly report that the Treasury is required to prepare includes references to the exercise of the powers conferred on the Treasury and the court under Part 1. Having had the discussion on the amendments that seek to give the court various powers under Part 1, I am sure the Committee will agree that further discussion on this point now falls away and is no longer necessary. I therefore hope that my noble friend will not move this amendment.

Amendment 77 requires the Treasury to consult the Home Office about the appointment of an independent person to review the terrorist asset-freezing regime. I am not sure precisely what the intention is behind it and whether it is envisaged that the Treasury might ensure that the same person will be responsible for this review as the other reviews of the UK's counterterrorism legislation. I can certainly see merit in such an arrangement, but there is also a need to ensure that the reviewer can give sufficient time and attention to this particular role.

The decision of who will review the asset-freezing regime has yet to be made. We will consider the appointment very carefully and in doing so will work closely with the Home Office. We will of course also consult other Whitehall departments where appropriate. We therefore broadly agree with the intention behind the amendment, but I hope that noble Lords will agree that it is not necessary to amend the legislation to reflect what I can assure the Committee will happen in practice.

Amendment 78 would require the independent reviewer to make recommendations in his or her first report on whether domestic asset-freezing legislation should be consolidated. It is a topic which the House discussed at some length at Second Reading. As is recognised by the Committee, we do not have the luxury of doing that within the scope of the present Bill.

The purpose of the independent review under this Bill is to report on the use of the powers included in the Bill. We believe it is important that the independent reviewer is free to examine any aspect of the asset-freezing regime and accordingly free to make any recommendations that he or she chooses. This may include recommendations on the desirability of consolidation of the asset-freezing regimes, but we believe that this is a decision that should be left to the reviewer. I hope therefore again that the Committee will agree that it is not necessary to amend the Bill and that the noble and learned Lord will not press his amendment.



6 Oct 2010 : Column 210

Amendment 79 would require the Treasury to publish the expenses and allowances paid to the independent reviewer of the operation of the asset-freezing regime. We assume that the intention is to provide further transparency in respect of the costs associated with the independent review. We would be happy to publish this information if requested. Again, I hope that the Committee will agree that it is not necessary to amend the Bill to require the disclosure of this information, although, as I say, we will be happy to publish it. I hope therefore that the noble and learned Lord will be happy not to press his amendment.

Baroness Hamwee: My Lords, I am grateful to the Minister. With regard to Amendment 75, I think he said that I was seeking information about the number of licences. In my mind, I was going rather wider than that. I do not think that this is just a matter of number, but I am not sure whether I heard him correctly. He might want to come back on the content of licences as well as the number. That is what I was looking for.

The second amendment was consequential. I am not sure that it quite falls away given that we have progressed with regard to the court's role by including appeals as well as judicial review. It would be quite perverse if the reviewer did not cover appeals and judicial reviews, so I do not think that I need to press that further.

The Minister asked whether I had in mind the appointment of the same person by the two departments for the different types of review. That was not what I was thinking of; rather it was the crossover of responsibilities between the Treasury and the Home Office as they are both involved in the same subject matter. However, he has given me the assurances I sought. I beg leave to withdraw the amendment.

Amendment 75 withdrawn.

Amendment 76 not moved.

Clause 24 agreed.

Clause 25 : Independent review of operation of Part 1

Amendments 77 to 79 not moved.

Clause 25 agreed.

Clauses 26 and 27 agreed.

Clause 28 : Liability of officers of body corporate etc.

Amendment 80

Moved by Baroness Hamwee

80: Clause 28, page 14, line 1, leave out "or connivance"

Baroness Hamwee: I will be quick. Clause 28 provides for offences by company officers and uses a term that I have not seen before in legislation-that they "connive" with or in something. Connivance is a term one associates with PC Plod rather than with statute, and I wonder

6 Oct 2010 : Column 211

whether this is the first time it has been used in legislation. I understand what it means, and perhaps this is a rather frivolous amendment. If so, I apologise. However, it struck an odd note.

More seriously, Amendment 81 would change the trigger for the offence in subsection (1)(b) from "neglect" on the part of a company officer to "recklessness", implying that the person knows the likely consequences of his action. A word or two in defence of "neglect" is what I am seeking, or, of course, agreement to the amendment. I beg to move.

Lord Sassoon: I am happy to confirm for my noble friend that the language in respect of both issues is in fact standard language in other legislation. On the question of "connivance", the term is standard-it is used in Section 14 of the Bribery Act 2010, for example-so the Government believe that the clause should remain as drafted. If the Committee would like more explanation, I am happy to give it, but I can give an assurance that it is standard language.

Similarly, on Amendment 81, I should make the important point that again the language as it stands in the Bill is standard and follows the drafting in other pieces of legislation. Noble Lords may be familiar with Section 37 of the Health and Safety at Work etc. Act 1974 and Section 186 of the Licensing Act 2003. Again, while I would be happy to go through the reasoning behind the substantive clause as it stands, I hope my noble friend will be content with the reassurance that these are standard provisions, and that she will withdraw her amendment.

9.45 pm

Baroness Hamwee: Shucks, I never thought of health and safety. I would not seek to detain the Committee by asking the Minister to give more examples now. Perhaps he will write to me on the second of the amendments with the other examples he has because they sound not entirely different but a little different. He is nodding and I take that as agreement. I am grateful. I beg leave to withdraw Amendment 80.

Amendment 80 withdrawn.

Amendment 81 not moved.

Clause 28 agreed.

Clauses 29 to 35 agreed.

Clause 36 : Interpretation: general

Amendments 82 and 83

Moved by Lord Sassoon

82: Clause 36, page 18, line 23, at end insert-

""final designation" means a designation under section 2 (including any renewed such designation);"

83: Clause 36, page 18, line 25, at end insert-

""interim designation" means a designation under section (Treasury's power to make interim designation);"



6 Oct 2010 : Column 212

Amendments 82 and 83 agreed.

Clause 36, as amended, agreed.

Clauses 37 to 39 agreed.

Clause 40 : Transitional provisions and savings

Amendments 84 to 88

Moved by Lord Sassoon

84: Clause 40, page 20, line 17, after "a" insert "final"

85: Clause 40, page 20, line 17, after "designation," insert "a"

86: Clause 40, page 20, line 18, after "be)" insert "a"

87: Clause 40, page 20, line 30, after "Any" insert "final"

88: Clause 40, page 20, line 39, at end insert-

"(10) Without prejudice to the operation of section 16 of the Interpretation Act 1978, the repeal by this Part of section 64(1)(e) of the Counter-Terrorism Act 2008 (meaning of UN terrorism orders) does not affect-

(a) any financial restrictions proceedings on an application made under section 63 of the Act of 2008 before the coming into force of this Part, or

(b) any proceedings arising out of those proceedings."

Amendments 84 to 88 agreed.

Clause 40, as amended, agreed.

Clauses 41 to 46 agreed.

Clause 47 : Extent

Amendments 89 to 91

Moved by Lord Sassoon

89: Clause 47, page 23, line 18, leave out "amendment" and insert "amendments"

90: Clause 47, page 23, line 19, leave out "extends" and insert "and paragraph A1 of Schedule 1 (amendment of civil procedure rules: England and Wales) extend"

91: Clause 47, page 23, line 19, at end insert-

"(4) The amendments made by paragraphs ZA1 to ZD1 of Schedule 1 (amendments of rules of the Court of Judicature (Northern Ireland)) extend to Northern Ireland only."

Amendments 89 to 91 agreed.

Clause 47, as amended, agreed.

Clauses 48 and 49 agreed.

Schedule 1 : Consequential amendments

Amendments 92 and 93

Moved by Lord Sassoon

92: Schedule 1, page 25, line 5, at end insert-

"Rules of the Court of Judicature (Northern Ireland) 1980 (S.R. 1980 No.346)

ZA1 The Rules of the Court of Judicature (Northern Ireland) 1980 are amended as follows.



6 Oct 2010 : Column 213

ZB1 In the Arrangement of Orders, in the entry relating to Order 116B, after "2008" insert "and Part 1 of the Terrorist Asset-Freezing etc. Act 2010".

ZC1 In Order 1, after rule 11(l) insert-

"(la) proceedings on an application under section 22 of the Terrorist Asset-Freezing etc. Act 2010, or on a claim arising from any matter to which such an application relates;".

ZD1 In Order 116B-

(a) in the title of the Order, at the end insert "and Part 1 of the Terrorist Asset-Freezing etc. Act 2010",

(b) in rule 1(2)(a), after "the", in the first place in which it appears, insert "2008",

(c) after rule 1(2)(a) insert-

"(aa) "the 2010 Act" means the Terrorist Asset-Freezing etc. Act 2010;",

(d) in rule 1(2)(b), after "the" insert "2008 Act or section 22 of the 2010",

(e) in rule 1(2)(c) for "has the same meaning as in section 65 of the Act" substitute "means-

(i) financial restrictions proceedings within the meaning of section 65 of the 2008 Act; and

(ii) proceedings in the High Court on an application under section 22 of the 2010 Act, or on a claim arising from any matter to which such an application relates",

(f) in rule 1(2)(h), for "Act" substitute "2008 Act (including that section as applied by section 23(4) of the 2010 Act)",

(g) in rule 4(3)(a)(ii), after "the", in the first place in which it appears, insert "2008",

(h) in rule 5(1) after "2008", insert ", or section 22 of the Terrorist Asset-Freezing etc. Act 2010, as the case may be,",

(i) in rule 36(1), after "the" insert "2008", and

(j) in rule 36(2), after "the" in the second place in which it appears, insert "2008"."

93: Schedule 1, page 25, line 5, at end insert-

"Civil Procedure Rules 1998 (S.I. 1998/3132)

A1 In Part 79 of the Civil Procedure Rules 1998 (proceedings under the Counter-Terrorism Act 2008)-

(a) in the title of Part 79, at the end insert "and Part 1 of the Terrorist Asset-Freezing etc. Act 2010",

(b) in rule 79.1(2)(a), after "the", in the first place in which it appears, insert "2008",

(c) after rule 79.1(2)(a) insert-

"(aa) "the 2010 Act" means the Terrorist Asset-Freezing etc. Act 2010;",

(d) in rule 79.1(2)(b), after "the" insert "2008 Act or section 22 of the 2010",



6 Oct 2010 : Column 214

(e) in rule 79.1(2)(c) for "has the same meaning as in section 65 of the Act" substitute "means-

(i) financial restrictions proceedings within the meaning of section 65 of the 2008 Act; and

(ii) proceedings in the High Court on an application under section 22 of the 2010 Act, or on a claim arising from any matter to which such an application relates",

(f) in rule 79.1(2)(h), for "Act" substitute "2008 Act (including that section as applied by section 23(4) of the 2010 Act)",

(g) in rule 79.6(3)(a)(ii), after "the", in the first place in which it appears, insert "2008",

(h) in rule 79.31(1), after "the" insert "2008", and

(i) in rule 79.31(2), after "the" in the second place in which it appears, insert "2008"."

Amendments 92 and 93 agreed.

Schedule 1, as amended, agreed.

Schedule 2 agreed.

In the Title

Amendment 94

Moved by Lord Sassoon

94: In the Title, line 2, leave out "suspected of involvement" and insert "believed or suspected to be, or to have been, involved"

Lord Sassoon: My Lords, I shall be brief. We have had a good and important discussion in Committee today. One of the most important things we have done is to change the legal test in the Bill, and Amendment 94 gives effect to or reflects that change in the Title of the Bill. I hope the Committee will think that it is an appropriate and fitting summary and conclusion of the debate we have had today. I beg to move.

Amendment 94 agreed

Title, as amended, agreed.

House resumed.

Bill reported with amendments.

House adjourned at 9.49 pm.


Next Section Back to Table of Contents Lords Hansard Home Page