The Parliamentary Under-Secretary of State, Department of Energy and Climate Change (Lord Marland): My Lords, yes. The Intergovernmental Panel on Climate Change is the primary authority on the science of climate change and the Government retain confidence in its leadership. We welcome the agreement reached by the IPCC to take forward some key recommendations of the recent independent review into its procedures, communications and management.
Baroness Noakes: My Lords, I thank my noble friend for that reply. He will be aware that the recent report by the InterAcademy Council laid bare the faulty processes in the IPCC which led, inter alia, to the ridiculous assertion about the melting of the Himalayan glacier. One clear recommendation was that the IPCC chairman should not serve for more than one term-that is to say, that the current incumbent should already have gone. Why have the Government reached the position in which they appear not to support that? What representations, if any, did the Government make at the recent IPCC meeting to that effect?
Lord Marland: Let me point this out to the noble Baroness and let us look at the facts: this organisation won the Nobel Peace Prize in 2007, and that should be commended. Like many organisations it will have growing pains, management and communications issues, but it has 194 countries subscribing to it and we cannot just wave a magic wand and change things. An independent review of its activities was carried out-I am grateful to Sir Peter Williams, the treasurer of the Royal Society, for being on the review committee-which found that the management structure was weak and that communications were not adequate. However, the review found that the information the IPCC provides is highly relevant. Frankly, it is not for this Government to decide how the organisation should be run. Dr Pachauri, the chairman, has accepted the recommendations and is going to implement them. He has an excellent relationship with emerging markets, which is very important, and he is an eminent Yale professor who is working for free.
Lord Soley: Does the Minister accept that, although the science on climate change is incredibly complex, all of it points in the direction of climate change being profoundly dangerous? Therefore, is it not right that, even though an organisation such as the climate change body to which he refers may make mistakes from time to time, it is critically important that, although we might examine those mistakes, we do not lose sight of the overall need to stop the pollution in which we are engaged at the moment?
Lord Marland: My response can be very short this time: I completely agree with the noble Lord, who is right. The Stern review showed that we have got to invest now to stop climate change in the future. I do not disagree with one word that he has said.
Lord St John of Bletso: My Lords, does the Minister agree that, apart from the necessity of agreeing a road map for the avoidance of deforestation, it is also vitally important that the IPCC addresses the issue of education on environmental matters and the promotion of green professionals?
Lord Marland: Again, I totally agree. We have to show leadership on the subject of climate change. As we said in the discussion on deforestation the other day, we have committed £300 million towards that out of the £1.5 billion that has been ring-fenced. It is encouraging that there is cross-party agreement on that endeavour, and that should be continued.
Lord Pearson of Rannoch: My Lords, the Minister says that Dr Pachauri is working for free, but has he read Christopher Booker's column in the Sunday Telegraph? It suggests that Dr Pachauri has some side activities that might be worthy of the Government's attention.
Lord Marland: I have known Christopher Booker for a long time, but I am afraid that I do not agree with a lot of things he has to say. Doubtless, the noble Lord agrees with every word-it is probably a biblical thing.
Baroness Smith of Basildon: My Lords, while clearly lessons are to be learnt from any errors in the assessment report, that does not alter the fact that there is overwhelming scientific evidence of significant man-made climate change and action must be taken. Does the Minister agree with the professor of physics and oceanography, Stefan Rahmstorf, that one of the great strengths of the IPCC is that it tends to be conservative and cautious and does not overstate any climate change risk? Indeed, it has since been proved by the July 2001 study that projections in temperature and sea level have risen higher than the top of the range predicted by the IPCC.
Lord Marland: I thank the noble Baroness for pointing that out. Again, the role that the Labour Government played in sorting out the problems that the IPCC had got into is to be commended. I totally endorse what the noble Baroness said.
Baroness Parminter: My Lords, should not the most important leadership on climate change be from the United States and China? Will my noble friend inform the House what the Government are doing to persuade those two giants of carbon emissions to exercise that leadership at Cancún later this year?
Lord Marland: I thank my noble friend for her second question in this House. Both of them have been excellent on this particular subject. The fact is that we have to show leadership. I am glad to say that the Prime Minister will visit China next month. He will lead a UK-China summit on low carbon development, which will be a central pillar of the visit. The Secretary of State, Chris Huhne, will join him.
Lord Hannay of Chiswick: My Lords, does the Minister not agree that practically all the criticism that has been levelled at the IPCC and other bodies supporting it has been about personalities and process but has not shaken the fundamental case? It would be much better if the critics concentrated on the fundamental case-if they can disprove it, which I do not believe they can-and laid off on the process and the personalities.
Lord Marland: The noble Lord makes a valid point, particularly as the previous chairman was hounded out by a similar approach. The fundamentals are what we are here to look at and I totally agree with him.
The Minister of State, Ministry of Justice (Lord McNally): My Lords, charities have responsibilities when placing representatives in war zones, but the Act referred to in the Question applies only when the harm that leads to a death occurs in the UK, UK territorial waters, or on a British ship, aircraft, hovercraft or an offshore installation covered by the UK criminal law.
Lord James of Blackheath: My Lords, I thank the Minister for that reply. Does he share my concern that this somewhat difficult Act contains within it a form of Catch-22, whereby any attempt to try to increase accountability might have a knock-on effect on charities to the extent that they cannot afford the risk of sending abroad the people to administer the money that they raise, which would have very serious effects to the detriment of British charitable support? Can we find a way round that problem of increased accountability?
Lord McNally: My Lords, I read the report of the Committee on that Bill of 5 February 2007, when my noble friend raised a similar doubt, and the noble and learned Lord, Lord Goldsmith, gave him reassurances on this matter. I do not think that we can go beyond those reassurances, as we do not believe that the Act has the adverse effect on charities that he feared then and evidently still fears.
Lord Phillips of Sudbury: My Lords, does my noble friend agree that, although, as he says, the 2007 Act and criminal law do not apply to staff of charities working in war zones abroad, civil law and common law apply and the law of negligence is very much alive to those circumstances? Do the Government offer any advice or assistance to overseas charities having to make very difficult judgments vis-à-vis their staff when they are put into highly vulnerable circumstances?
Lord McNally: Yes, my Lords, we do. The issue is difficult and is a matter of judgment for the charities and for the individuals concerned, but we do not say that those very brave individuals should not go. I pay tribute to those who are willing to go into places of danger on behalf of charities. The Department for International Development draws the attention of NGOs to FCO travel advice for the area and the Charity Commission provides guidance to charities working internationally on how to manage the risks to their staff.
Lord Elystan-Morgan: Will the Minister kindly tell the House, since the Act came into operation three and a half years ago, how many prosecutions there have been, how many civil actions have been commenced, and if so with what result?
The Minister of State, Foreign and Commonwealth Office (Lord Howell of Guildford): My Lords, we have discussed the situation at Camp Ashraf with the Iraqi Prime Minister, the Iraqi Foreign Minister, the Iraqi Human Rights Minister, the Iraqi Minister of Internal Affairs and the Iraqi Government's Ashraf committee. The United Kingdom has underlined the need for the Iraqi authorities to deal with the residents of Camp Ashraf in a way that meets international humanitarian standards. Officials from the British embassy in Baghdad have visited Camp Ashraf four times in the past year and remain in contact with the United Nations Assistance Mission and the United States. We continue to follow developments.
Lord Archer of Sandwell: My Lords, I thank the noble Lord for that account of energetic activity, but does he agree that, since the occupying forces of the Americans and British delivered the residents of Ashraf to the mercies of the Iraqi military, they retain some obligation for their welfare and protection from repeated murderous attacks and the interruption of food and medical supplies? Does he agree that, if we could discharge an obligation simply by saying that we had transferred it to someone else, we could all get rid of our debts instantly and painlessly? Do the Government agree that they retain a responsibility to protect?
Lord Howell of Guildford: We certainly retain a humanitarian concern, but we have to remember, as I am sure the noble and learned Lord will be the first to recognise, that Iraq is now a sovereign state with its own responsibilities and it is within the Iraqi sovereign concern to address this matter in the proper way. That does not mean that we will ignore it. As I indicated, we have constant contact with the Iraqi Government; the United Nations Assistance Mission visits the site once a week, although for the moment it has removed its continuous monitoring; and there is international pressure. However, the facts are the facts: Iraq is a sovereign country now and it lies within that country's sovereign area to address the problem and solve it in a sensible way.
Lord Waddington: Does my noble friend not agree that even if the residents in Ashraf are, as some argue, no longer entitled to protection under the fourth Geneva convention, we as partners of America in the Iraqi
25 Oct 2010 : Column 1030
Lord Howell of Guildford: I recognise my noble friend's continuous concern on this issue. It is the concern of all of us that we do not want to see suffering, violence or worse. However, as has been acknowledged by the United Nations, the people of Camp Ashraf do not have refugee status under the fourth Geneva convention, nor are they prisoners of war under any other part of the Geneva convention. Our concern must be the concern of any civilised nation-that this matter can be handled properly. The UN does not find the idea of a permanent military force there acceptable but, as I said, it is keeping the matter under constant monitoring and we shall continue to press it strongly.
Baroness Symons of Vernham Dean: My Lords, does the Minister not agree that, irrespective of our legal obligations, we have an enduring obligation to the people in Camp Ashraf, as the noble Lord, Lord Waddington, indicated? After all, we do not hand anyone over to any sovereign power if we think that they would be tortured or in any other way mistreated. Does the Minister believe that there is any truth in the allegations that United States officials are not allowed into Camp Ashraf for inspections? I am pleased to hear that our officials have been allowed in, but will he assure us that they will continue to visit the camp? Is there any hope that in the future there will be UN inspectors in Camp Ashraf, as the noble Lord, Lord Waddington, rightly requested?
Lord Howell of Guildford: I can give hopes and intentions rather than assurances because, as the noble Baroness knows well from her own experience, this is a difficult area. Obviously, we intend to continue having access and monitoring. We intend to continue pressing the UN, which appears to be ready to visit and maintain a close eye on the situation. The overall pattern, however, is governed by the fact that this is Iraqi sovereign territory and Iraq is a sovereign state, although the Iraqis will be watched carefully by the world and will be expected to police and manage this matter in a civilised way.
Baroness Nicholson of Winterbourne: Does the Minister agree that, since the residents of Camp Ashraf have no refugee status, they are in fact there by choice? Is it not ironic that no member state of the European Union, including the UK, or North America will accept these residents of Camp Ashraf because of the activities of some of them in earlier times? Is it not therefore time for us to move on and leave this issue to the sovereign nation of Iraq?
Lord Howell of Guildford: My noble friend speaks on this matter with a great deal of wisdom and experience. She is right that there is some baggage from the past to carry, which makes it additionally difficult to deal
25 Oct 2010 : Column 1031
Lord Clarke of Hampstead: My Lords, we will all be pleased to hear about the activities that the Government are pursuing through the various bodies that are in control of Iraq, but when we talk about the normal procedures for these things, there is something that we must bear in mind. Does the Minister agree that we should pay tribute to those people-the women-who stood up to the chains with which they were being beaten when the Iraqi people went into the camp? Does he agree that these people deserve more than words? There should be good, sound advice from this House about what goes on when young people are beaten up there. As I have seen on the DVD, chains are being used to hit women who are protesting. Will the Minister, who I know is doing the best that he can, now go to the United Nations and say, "Normal procedures are one thing, but let's get on and get these people some security"?
Lord Howell of Guildford: The noble Lord is right: all such methods and activities, where they take place, should be deeply deplored. These are not the kind of things that we expect to see in the modern Iraq, which is trying to take its place in the world and the comity of nations as a responsible power. We should never cease to put pressure on Iraq to maintain the highest possible standards and we should not cease to deplore anything of the kind that the noble Lord has described.
Lord Howell of Guildford: That is a hypothesis with which I would have to agree if that were so but, unfortunately, it is not. We are dealing with a much more complex situation, with Iraq seeking to get a new Government and to be a sovereign power. There is also the historical baggage to which I have referred and the malign influence of Iran throughout the Middle East, which we must never cease to safeguard against and watch carefully.
Lord Dholakia: My Lords, one area of concern is the treatment of residents in Camp Ashraf, particularly those who suffer from cancer et cetera. They have no or very restricted access to hospitals in Baghdad. Will the Minister consider, on humanitarian grounds, ensuring that the United Nations Assisted Mission in Iraq is able to assist in such cases?
Lord Howell of Guildford: Yes, I am assured-I have checked this carefully-that all basic and medical supplies are getting in. There is a hospital facility in the camp. Although some items-bicycles and beds,
25 Oct 2010 : Column 1032
Baroness Farrington of Ribbleton: My Lords, can the Minister assure us that visits on behalf of Britain are unannounced and that there is an insistence on meeting people without security guards being present? We all know that there is a danger that a prepared route is available and that prisoners are often too frightened to speak out.
Lord Howell of Guildford: I have not had any clear information about there being a difficulty on that front so far. The visits have been regular and occasionally irregular and therefore unannounced and unplanned for. I do not think that there has been any difficulty, but I will watch out for that carefully in the future to see that these are genuine visits, where evidence is presented and not covered up.
To ask Her Majesty's Government what they expect to be the effect of the limitations on shared ownership for first-time buyers as set out in the Financial Services Authority's policy statement A Specialist Sourcebook for Building Societies, published in March 2010, stating that a maximum of 15 per cent of a building society's whole mortgage book will be available for non-prime owner-occupied mortgages.
The Commercial Secretary to the Treasury (Lord Sassoon): My Lords, the regulation of building societies is a matter for the Financial Services Authority, which is an independent body. I have, however, raised this question with the FSA and I understand that it has written to my noble friend, explaining how it uses its Specialist Sourcebook for Building Societies.
Baroness Gardner of Parkes: I thank my noble friend for that Answer, but is he aware that the 15 per cent limit also covers buy-to-let, commercial and social landlords and equity release schemes, so an awful lot is crammed into it? The problem seems to have arisen because the FSA says that this is guidance but building societies have said at a recent meeting of 14 major and minor societies that individual supervisors from the FSA have insisted that this was an absolute maximum and that there was no question of discretion. Will my noble friend clarify that this is just guidance?
Lord Sassoon: Well, my Lords, the FSA, and what my noble friend has reported it as saying, must stand for themselves. I cannot directly answer for the FSA.
25 Oct 2010 : Column 1033
Lord Forsyth of Drumlean: My Lords, given that the sub-prime crisis in the United States was caused in the first place by government interference requiring lenders to lend money in an unsafe way, should we not be very wary about interfering in the lending decisions of building societies or others, however important the social issues are?
Lord Sassoon: My Lords, the Government want to have a sustainable mortgage market in this country, and that requires a balance in maintaining a flow of mortgages so that people can get on to the housing ladder. In that regard, the actions which the Government have taken to ensure that market interest rates are kept low are paramount. On the other hand, we want to ensure that mortgage providers lend responsibly. That is why the Financial Services Authority is conducting a mortgage market review and why in July it issued a responsible lending paper for consultation.
Lord Sassoon: The Financial Services Authority is, indeed, appointed by Ministers and has a high degree of reporting to all its stakeholders, including Parliament. The Government do not believe that the model of tripartite regulation which we inherited from the previous Government is at all appropriate. Therefore, the FSA will go under the legislation which we will be bringing forward and we will have a completely new system of accountability for financial services regulation which we think is more appropriate.
Lord Newby: My Lords, does the Minister agree that the large number of different affordable housing schemes offered by the Homes and Communities Agency are confusing to lenders, developers and, ultimately, to the buyers they are supposed to be helping? Will the Government undertake to rationalise the schemes that the HCA currently offers?
Lord Sassoon: My Lords, I am wary of straying too far from financial regulation into housing policy areas but I will ask my ministerial colleagues in the Department for Communities and Local Government to write to my noble friend on that point.
Lord Eatwell: My Lords, is the Minister aware that in the source book referred to by the noble Baroness, Lady Gardner, there is a clear premise that
25 Oct 2010 : Column 1034
If they are less risky, is it not time to reduce the punitive levy on building societies for the Financial Services Compensation Scheme-a levy which is reducing the funds available for lending to house buyers?
Lord Sassoon: One of the beauties of the current system and our future system of financial regulation is that decisions about the relative riskiness of different classes of financial assets are emphatically not for government but for the financial regulator, which in due course will be the Bank of England. So while I can ask the Financial Services Authority to write to the noble Lord, I am certainly not going to second-guess its judgments.
Lord McFall of Alcluith: My Lords, are not all the building societies that became plcs now bust and out of business, and is there not a case for looking at mutualisation with responsibility? Surely the Government should be encouraging the FSA to go along those lines so that we have good mutual organisations, which have existed in the past, lending responsibly.
Lord Sassoon: My Lords, it is important that we have diversity and a variety of providers of financial services. In that context, building societies of course have an important role to play-particularly in the area of shared-ownership mortgages, which is the subject of the Question. Many building societies continue to offer products in this area, and I welcome that.
Baroness Gardner of Parkes: Will the Minister confirm that, in spite of what my noble friend Lord Forsyth said, there is a self-limiting situation, in that someone applying for shared ownership can have the mortgage for their percentage of ownership tailored exactly to an amount that they can be sure of paying?
Lord Sassoon: My Lords, questions about what people can afford to pay are essentially for the mortgage provider to judge in the context of its commercial decisions, made within the responsible lending guidelines set down by the FSA.
Lord Christopher: My Lords, can the Minister offer a view on why equity release schemes should be regarded as sub-prime mortgages? I should have thought that such arrangements were highly desirable, given the age distribution that we face.
It seems that the Bill has attracted little public attention, except from our own Constitution Committee, which was very critical of the Bill, and from bodies such as Liberty and Justice, which are even more critical. Liberty and Justice state in their briefing paper that they have four major concerns. The purpose of my amendments is to meet at least some of those concerns.
The purpose of the Bill is to give effect to Security Council Resolution 1373, following the decision of the Supreme Court in the case of Ahmed, which quashed the orders made by the Treasury. The Bill was first drafted by the previous Administration, but that does not matter, because the starting point of its drafting should surely have been the decision of the Supreme Court in the Ahmed case and the light that it throws on the meaning and effect of Resolution 1373.
Reading the Bill in July, my immediate impression was that Ahmed had been very largely ignored. The Bill simply puts on a statutory basis, as was required, the provisions of the Terrorism Order 2006, but ignores the very serious criticisms that the Supreme Court made of the order. To make that good in Committee, I referred to a paragraph in the judgment of the president of the Supreme Court, the noble and learned Lord, Lord Phillips. Afterwards, I wrote to the noble Lord, Lord Sassoon, to explain the difficulties that I had with the Bill, and he was courteous enough to reply. I make no apology for repeating the words of the noble and learned Lord, Lord Phillips, because they are central to what is wrong with the Bill. Having referred to paragraph 1(c) of the critical resolution, he continued:
"Paragraph 1(c) requires the freezing of the assets of those who commit the acts that the Resolution has required should be criminalised and their agents. Thus what the resolution requires is the freezing of the assets of criminals. The natural way of giving effect to this requirement would be by freezing the assets of those convicted of or charged with the offences in question. This would permit the freezing of assets pending trial on criminal charge, but would make the long term freezing of assets dependent upon conviction of the relevant criminal offence to the criminal standard of proof".
"The Government do not support moving to a higher legal threshold than reasonable belief, for example by imposing asset freezing only on those who have been convicted of a terrorist offence. Such a move would undermine the preventive nature of the regime".
With great respect, that is simply not correct. To make the commission of a terrorist offence the threshold of a freezing order could not be incompatible with the aims of the resolution, since, as I have just read out, that is what paragraph 1(c) specifically requires. States are required to freeze without delay the assets of persons who commit or attempt to commit terrorist acts-nothing less, nothing more. There is no mention anywhere in the resolution of those suspected of committing terrorist acts.
If it is then said that in the passage that I have read the noble and learned Lord, Lord Phillips, was, as it were, on a frolic of his own, then what about the noble and learned Lord, Lord Mance, at page 451 of the judgment? At paragraph 225, he said:
"The relevant wording of Security Council Resolution 1373 ... is directed at the prevention and suppression and the criminalisation and prosecution of actual terrorist acts; at the freezing of funds or other financial assets or economic resources of persons 'who commit"-
The only justice to have expressed a contrary view was the noble and learned Lord, Lord Rodger, at paragraph 170, but none of the other six judges agreed with him. Therefore, in my submission there is no doubt at all about what the Supreme Court decided. That is put very well in the rather lengthy head note, of which I should perhaps refer to a very small part. It said that the appeals would be allowed because Resolution 1373 was not phrased in terms of reasonable suspicion, so by introducing such a test the terrorism order went beyond what was necessary or expedient to comply with the relevant requirements of the resolution and that accordingly the terrorism order was ultra vires the powers conferred. Therefore, again, there is no doubt about what the court decided. However, when this Bill was being drafted, those responsible for the drafting must have read the speech of the noble and learned Lord, Lord Rodger, but overlooked the speeches of the three noble and learned Lords to whom I have referred and what, on any view, was the actual decision of the court. I hope that, when he
25 Oct 2010 : Column 1037
As a result of the Second Reading debate, and in particular the speech of my noble friend Lord Pannick, the Government now accept that "reasonable suspicion" is not good enough and instead they have substituted "reasonable belief". The noble Lord, Lord Rodger, said that it is very difficult to say how much difference there actually is in practice between those two. I think he describes suspicion as being "only a little less stringent than belief", or words to that effect. Whatever the precise difference between those two, surely it is clear that exactly the same argument, which has led the Government to accept that suspicion is not good enough, must also apply to what they have now substituted; namely, belief.
It is true that belief will catch fewer innocent people than suspicion, which I assume to be the reason for the change, but I doubt whether it will make much difference. The point remains the same: that belief, like suspicion, casts the net too wide; it is far wider than the resolution requires, so that more innocent people will inevitably be caught. That is why it is so important to keep to the words of the resolution and not to change the essential nature and target of the resolution. I put it to your Lordships that that means the final order must be confined to those who have been arrested and charged with a terrorist offence and that is what will be achieved by my amendments, if they are accepted. I beg to move.
Lord Bach: My Lords, to my surprise, I shall be speaking early in these proceedings but I enter the fray at a rather late stage of the Bill because my noble and learned friend Lord Davidson of Glen Cova cannot be here today. However, on this Bill I am not to be allowed gently to put my toe in the water. The House is dealing with important amendments tabled by the noble and learned Lord, Lord Lloyd of Berwick, to whom I want to pay tribute. He has a deserved reputation for knowledge and expertise, particularly in this area, going back many years. I have also had the experience of debating with the noble and learned Lord on a number of occasions when sitting on the other side of the Chamber. Although he is always a model of courtesy, good manners and, of course, persuasion, I have no doubt that those who have succeeded me will find his arguments as difficult to deal with as I did. However, I say with the greatest respect, that does not always mean he is right.
Today, we on this side believe that the noble and learned Lord is wrong in limiting final determinations only to those cases where a person has been charged with a criminal offence under Clause 2(2). Why do we think that? In essence, we think that such a step would be impractical and would not work in the real world. Reading through the Committee stage debates, I was impressed by the arguments employed by the noble and learned Lord, Lord Wallace of Tankerness, in dealing with this issue. It seems to us that his arguments are powerful. On 6 October, he said:
"Unlike control orders, asset freezing is not only used against people in the United Kingdom who cannot be prosecuted or
25 Oct 2010 : Column 1038
"The noble and learned Lord, Lord Lloyd of Berwick, indicated that he thought that those who were subject to designation should also be prosecuted. I asked how many people who have been subject to asset freezes have been prosecuted".-[Official Report, 6/10/10; col. 150.]
He was advised that 21 individuals in the UK had been convicted for terrorism offences, and that six people within the UK have not been prosecuted. He went on to say that he had asked his officials how many persons outside the UK had been subject to designation for asset freezing, and that the answer was 36, of which 22 were entities and 14 were individuals. He said that it would just not be possible to prosecute them. That is, in essence, what the noble and learned Lord said at the Committee stage of these proceedings.
The trouble is that if one had to charge before making a final designation order, many of those whose assets one would want to make an order against might not be in the jurisdiction, might not be likely to be in this jurisdiction, or might have skipped the jurisdiction as fast as they possibly could. Why should they escape the making of a valuable order if it would assist in the fight against terrorism? That is why we think that in the real world, where a considerable number of the people who one would want to make an asset order against are abroad and not within the jurisdiction, there should be power to make such an order, because if there were not, there would be a serious lacuna in the law.
Lord Lloyd of Berwick: My Lords, before the noble Lord sits down, I hope that he will deal with that point a little more fully as it is quite important. Is he arguing that Clause 1 has extraterritorial effect? If so, that is not stated in the Bill. Indeed, the Bill specifically provides that the offences provision in Chapter 2 is to have extraterritorial effect, but there is nothing in the Bill to suggest that we can serve persons abroad. It applies only to our own nationals and to people within this country in the ordinary way.
Lord Bach: I have to admit that I do not know the answer to the noble and learned Lord's question. However, I am concerned about the position of a UK citizen who goes abroad and who therefore cannot be interviewed and perhaps afterwards charged with an offence, and who because of that fact cannot have an order made against his assets. As I understand it, having read the letter from the noble Lord, Lord Sassoon, in response to the Joint Committee on Human Rights, that actually happens in real life.
Lord Lloyd of Berwick: I will not take up the noble Lord's time further, but I shall obviously need to deal with that matter with the Minister who no doubt has given consideration to this important point.
Lord Elystan-Morgan: My Lords, I support the arguments and the amendment tabled by my noble and learned friend Lord Lloyd-not that he needs my feeble assistance in this matter. It seems to me that
25 Oct 2010 : Column 1039
The first stage might be called the "trigger" stage: the point at which the authorities have some jurisdiction in this matter. In the original Bill, it was at a point when there was reasonable suspicion, but in the amendment it is when there is reasonable belief. As the noble and learned Lord, Lord Lloyd, has said, those are two separate categories, but they are very close to each other.
Perhaps I may trouble the House a moment or two with this illustration. Let us think of Section 22 of the Theft Act and the provision dealing with the receiving of stolen goods knowing or believing them to be stolen. A judge will tell the jury very simply that even if the defendant is shown to be in possession of suspicion, that counts for nothing at all: there has to be actual knowledge or belief. But the same judge will normally say to the jury that of course there is a point where suspicion becomes so strong and convincing as to amount virtually to belief. I make that point as an illustration of the fact that the two estates practically merge at that point. That flaw remains even if the amendment were to be carried.
The other point is what might be called the boundary point. There are two stages: first, that you trigger the mechanism by way of a belief; secondly, that it must be belief as to some state of affairs. That, it seems to me, can be one of two things. It can either be a belief that a criminal act is in the course of being committed or has been committed; or that there is involvement within the accepted degrees of criminality in that act relevant to the provision. If one is concentrating on what is or is not a criminal act, that is a fairly simple matter to decide. Is the person you suspect or believe to be involved a person who would be a principal in the first or second degree, an aider and an abetter, et cetera, or is he beyond that pale?
If you draw the line at the point of criminality, it is perfectly simple, because you have a defined boundary. You can say, "That is the ne plus ultra of the law's authority in this matter". If you extend that pale, where are you? Where is the boundary? I remember the very strong argument of the noble Lord, Lord Carlile of Berriew, some weeks ago in this matter. There may very well be a case for extending the boundary beyond that of actual criminality, but there has to be a boundary. That is my point about Clause 2. If you leave the boundary of actual criminality and assume any other boundary, with the greatest respect, you have to define it very closely.
Lord Judd: I listened very carefully to what my noble friend said in his forthright argument. I have always thought that if anyone was the epitome of someone who lives in the real world, it is my noble friend. What is important about the amendment of the noble and learned Lord is that, with all his vast legal experience, he is reminding us of certain basic principles which we seek to defend in our antiterrorism legislation-the character of our society.
I am troubled in what I have seen as a drift over the years by what has happened to the principle of the presumption of innocence. I am not a lawyer, and it takes a certain amount of intellectual courage, if I may put it that way, to rise in a debate such as this when the lawyers are all speaking with so much authority and learning. However, as an ordinary citizen, the principle of the presumption of innocence is very precious, and we need to be certain that, in the terribly difficult task with which we are confronted in preventing terrorism, we do not throw the baby away with the bathwater. The noble and learned Lord's amendment is not necessarily the best way to pursue the matter, but I seek some very convincing reassurances from the Minister when he comes to reply.
Lord Mackay of Clashfern: My Lords, I am prompted to rise by the noble Lord, Lord Judd. The principle to which he refers is displaced only by a conviction. Therefore, the amendment does not particularly invoke that principle. I would be interested to hear the basis on which the noble and learned Lord, Lord Lloyd, thinks that a person should be charged with an offence under this provision. Of course, I understand the point made from the opposition Front Bench. It may be sufficient if there are assets in the jurisdiction, even if the person who owns or controls the assets is not himself or herself in the jurisdiction. Having listened carefully to my noble and learned friend Lord Lloyd of Berwick, I am left with the question of the basis on which, or the extent to which, one must know what has happened in order to charge someone with an offence under these provisions.
The Commercial Secretary to the Treasury (Lord Sassoon): My Lords, if noble Lords will permit me, I will speak to this entire group of amendments, although there has not been any significant discussion on some of them. It is perhaps worth summarising what these amendments would do. They would limit final designations to those charged with a terrorist offence of a description within Clause 2(2). They would require any final designation to cease if the charges are dropped or the person is acquitted and require the Treasury to apply to the court to make an interim designation.
Amendments 1 and 3 relate to the Treasury's power to make a final designation. They require the Treasury to make final designations against only those people who have been charged with a criminal offence falling within the description of terrorist activity in Clause 2(2) for the purposes of the Bill.
Amendments 4, 5 and 6 require a final designation automatically to expire when a person charged is acquitted or charges are dropped before the ordinary one-year expiry. This goes to the heart of what this regime is intended to be about. Although I echo the words of the noble Lord, Lord Bach, in recognising the contribution of the noble and learned Lord, Lord Lloyd of Berwick, and the great wisdom he brings to this, I think he does not go to the complete heart of the rationale of UNSCR 1373, which is indeed preventive. It requires states to take steps to prevent terrorist acts. I should quote further from the resolution. Its paragraph 1(c) states that one of the means of achieving this requires states to:
"Freeze without delay funds and other financial assets or economic resources of persons who commit, or attempt to commit, terrorist acts or participate in or facilitate the commission of terrorist acts".
The rationale of paragraph 1(c) is to prevent funds, financial assets and other economic resources being used or diverted for terrorist purposes, and the Government absolutely believe that it would not accord with the preventive rationale of the UN resolution if a final designation could be made only in respect of those charged or convicted of terrorism-related offences.
If that were the threshold, the Treasury would not be able to freeze the assets of those in respect of whom there was evidence that was insufficient to bring such a charge, but sufficient to give rise to a reasonable belief on the Treasury's part that the person represented a terrorist risk-for example, where an interim designation has been made in respect of a person on the basis of a reasonable suspicion and insufficient evidence has come to light during the 30-day period of that interim freeze that would allow charges to be brought, but the Treasury has nevertheless come to a reasonable belief that the person is or has been involved in terrorism and considers it necessary for public protection that the final designation be made. If the Treasury were not able to make a final designation in those circumstances, that would give rise to a risk of terrorism that the requirements of the UN resolution are meant to prevent.
I remind the House that in making these designations, it is necessary that the dual test is met. The other half of the test, which has not been mentioned this afternoon, is a public protection leg. It is the Government's continued firm belief that a reasonable belief threshold for a final designation would allow the Government to implement effectively the requirements of the resolution.
Lord Lloyd of Berwick: Does the noble Lord accept that reasonable belief goes beyond what Resolution 1373 requires? That is the critical question. It is also the question, which, as I have explained, has been decided by the Supreme Court.
Lord Sassoon: My Lords, the interpretation of UNSCR 1373 can be construed partly on a recommendation of the resolution itself and partly on the interpretation which the Financial Action Task Force has made. It is clear from its guidance that asset freezes should not be limited only to cases where people have been charged or convicted. If we were to accept this amendment, which the Government do not intend to do, it would certainly put the UK outside what is considered by all leading countries through the FATF guidance to be best practice in implementing Resolution 1373. What we are proposing is consistent with the approach taken by other authorities, such as in Canada and New Zealand, of which the noble and learned Lord, Lord Brown, approved in the case of Ahmed.
I agree with the interpretation of the noble Lord, Lord Bach, of the situation. Asset freezing is implemented against individuals and groups in the UK and overseas. At the moment, 22 entities and 14 individuals overseas are the subject of asset freezing. Nothing in Clause 1 limits this. Asset freezing certainly is not limited to people in the UK. People anywhere in the world can be designated, but the prohibitions apply only within
25 Oct 2010 : Column 1042
Lord Lloyd of Berwick: Is the Minister saying, in effect, that Clause 1 has extra-territorial effect? If so, what is his authority for saying that in the light of the fact that the Bill makes specific provision for extra-territorial effect for offences under Clause 11 but no such provision in relation to Clause 1?
Lord Sassoon: Under Clause 1, people anywhere in the world can be designated. To repeat myself again, the prohibitions, on the other hand, apply only within UK jurisdictions; that is, to assets either held in the UK or held by UK persons such as banks overseas. That is about as clear as I can be on the Government's understanding of the scope of Clause 1. The people overseas who are subject to asset freezes are operating in environments where it is not possible to charge or to convict them clearly of terrorist offences, but where it is necessary in order to disrupt their actual or potential-
Lord Carlile of Berriew: Perhaps I may tempt the Minister into a more direct answer to the question posed by the noble and learned Lord, Lord Lloyd. Surely what he is saying amounts to no; it does not have extra-territorial effect. A clear answer to that effect might be helpful for future purposes.
Lord Sassoon: Not being a lawyer, I was trying to give a clear statement of what effect Clause 1 has in relation to the underlying reality of where it bites. As to whether this does or does not mean that it has extra-territorial effect, I will leave that to lawyers to sort out. However, I am now given advice which says that Clause 33 sets out the extra-territorial application of the offences. Perhaps that will help on this point.
Lord Davies of Stamford: I thank the noble Lord for giving way. He may not be a lawyer, but he is a Minister. He has come before this House to present a Government Bill and therefore must be deemed to understand what the purposes of the Government were when they drafted and brought forward this legislation. I have listened with great interest to the debate with no intention of taking part, but it is clear to me that the Minister is not willing to tell the House whether Clause 1 has extra-territorial effect. The question should be capable of a simple yes or no answer. The Government must know where they are on that whole idea before they come before the House with a Bill.
Lord Sassoon: My Lords, I am trying to get to the substance of what we are seeking to achieve here, which is that if the people are abroad-that is, extra-territorial-but their assets are here, those assets can be made subject to an asset-freezing order. Indeed, if the people or the entities are UK persons, the asset freeze can also bite on them. I hope that that clarifies what we are trying to achieve.
Lord Davies of Stamford: We all know what "territorial" means. It means persons who are in this country or visiting this country, or corporate persons such as banks that are resident in this country but have assets abroad. That is territorial jurisdiction. What we want to know is whether Clause 1 has extra-territorial jurisdiction attached to it. In other words, is the power capable of being exercised in relation to persons and assets that are not connected with the United Kingdom?
Lord Sassoon: My Lords, let me try to say it again. Clause 1 bites on assets that are here-that is, territorial assets-but also enables the Government to freeze the assets of people who are not here, which would be extra-territorial.
Lord Sassoon: No, my Lords, that is not strictly what I said. Clause 1 can bite on assets that are here that might be under the control of people who are not in the UK. Equally, it may bite on people who are within the jurisdiction of the UK on assets that they might hold elsewhere. I am sorry if that is not clear.
Lord Sassoon: I am trying to reduce this to what Clause 1 actually does. I do not believe that saying whether it is extra-territorial will clarify the point at all. What I am trying to do is get to the substance of what the clause is intended to achieve. I do not know whether it is being suggested that we should not, for example, be able to freeze the assets of the likes of Osama bin Laden, if he had assets in this country, just because he does not happen to be here. Is that what is being suggested we should be prevented from doing?
Lord Davies of Oldham: My Lords, at the Report stage of a Bill, the Minister is not here to be cross-examined in this way. My noble friend may make one contribution-he has made several-so he certainly ought not to make any more. We are dealing with the Report stage of the Bill and the Minister is replying to the debate.
Lord Stoddart of Swindon: My Lords, on this important amendment, we have heard from the Minister that because he is a layman, as I am, he is not able to answer the questions raised by the noble and learned
25 Oct 2010 : Column 1044
Lord Sassoon: My Lords, I am grateful to the noble Lord, Lord Davies of Oldham. I hope that the majority of us are clear about the intended scope of Clause 1, so I shall move on to deal with some of the other aspects. However, it is quite clear that the scope of Clause 1 is as intended and required by our obligations under UN Resolution 1373, which is the relevant resolution.
It is worth noting that while the majority of asset-freezing cases in the UK are against those who are charged or convicted of terrorist offences, at the moment there are six cases where it has been necessary, in order to protect the public from terrorism, to act upon the intelligence picture which, for reasons of national security or admissibility of evidence, cannot be used as the basis for criminal charges. However, that does not, of course, mean that those people do not continue to pose a serious risk to national security. Therefore, to limit final designations only to those subject to a criminal charge would exclude such groups and individuals as I have described. This would fatally undermine the preventive and disruptive nature of the asset-freezing regime as well as impact significantly on its operational effectiveness.
Nevertheless, the Government recognise that the Bill as it was introduced raised civil liberties concerns, and it was to address those that we amended the Bill so that a higher final designation threshold of reasonable belief, rather than the previous reasonable suspicion threshold, is being introduced. However, again I stress that there is a twin test, as the test of necessity for public protection also needs to be met. I do not think that the noble and learned Lord, Lord Lloyd of Berwick, drew attention to that.
The noble and learned Lord referred to a final order as giving an indefinite freeze. However, it is important to recognise that freezing orders have to be relooked at whenever the evidence changes or after 12 months. While "final order" is the term in the Bill, we should remember that a final order or a final designation will expire after 12 months unless it is renewed. We have also provided that the legal challenge to any designation should be by way of appeal. The Government continue to believe that the Bill strikes the right balance between safeguarding a person's rights and protecting the public.
Lord Lloyd of Berwick: I have not addressed those amendments yet. I believe they have been degrouped and appear in the next group. I specifically asked before I addressed the House that those amendments, which relate to an entirely separate subject matter-namely, the interim order, not the final order-should be degrouped. If the Minister did not hear that, he can answer what I have to say in due course.
Lord Sassoon: My Lords, the last grouping I have seen from the Printed Paper Office suggested that everything was grouped together. Perhaps I should
25 Oct 2010 : Column 1045
Lord Skelmersdale: My Lords, it would make life a lot clearer for me if the Minister could say whether anything in Resolution 1373 prohibits a state that has signed up to it from producing legislation on the same subject that is more severe than the resolution suggests.
Lord Sassoon: I am not aware of anything in the resolution that prevents legislation going further. The Bill does what is required to properly implement Resolution 1373 but, if it did go further, that would not be precluded by the terms of the resolution.
Lord Lloyd of Berwick: My Lords, the Minister has not fully dealt with the point that what is now proposed goes well beyond what is required by Resolution 1373. He argued that that resolution was intended to be preventive and that what is now proposed is preventive. The resolution states, in paragraph 1(a), that it is intended to be preventive, but it then goes on to say how it is to be preventive by requiring all member countries affected by the resolution to pass legislation to freeze the assets of those who have been charged or convicted of a terrorist offence. That is clear from the language of the resolution. Simply to say that the resolution is intended to be preventive and that the Bill is preventive is not an answer to that point.
The only real answer that has been given was that given by the noble Lord, Lord Bach, when he repeated what was said by the noble and learned Lord, Lord Wallace of Tankerness, in Committee. In particular, he said:
"I also asked how many persons outwith the UK have been subject to designation for asset freezing; the answer is 36, of which 22 are entities and 14 are individuals".-[Official Report, 6/10/10; col. 150.]
That brings us back to the question whether Clause 1 is extra-territorial. The fact that something has happened is by no means proof that it was justified, as indeed is the case with the whole history of this part of the law, which has had to be corrected by the Supreme Court in its most recent decision. Those figures do not convince me at all. We return to the question whether Clause 1 on this particular point is intended to be extra-territorial. It is clear to my mind that it is not, for the reasons that I have already given-namely, that other provisions in this Bill are said to be extra-territorial and this is not included among those provisions. That merely confirms the ordinary rule that we apply all the time that legislation is not extra-territorial unless it is stated to be so.
There is a further question relating to the figures given by the noble and learned Lord, Lord Wallace of Tankerness. If those persons were outside the jurisdiction, how were they notified? Under Clause 3, it is the obligation of the Treasury to notify a person immediately when the final order or an interim order is made. How can we be sure that that is being done when the person is outside the jurisdiction, wherever he may be? The
25 Oct 2010 : Column 1046
Lord Sassoon: My Lords, the Government's intention behind this amendment is to clarify that the words "involved in" in the legal tests for interim and final designations do not mean something additional to the activities and conduct referred to in the definition of "terrorist activity". In Committee, my noble friend Lady Hamwee indicated her concern that use of the term "involved in" could capture people whose conduct did not fall strictly within Clause 2(2) but who were simply associates of people whose conduct did fall within that clause or who were merely innocent bystanders. This was not the Government's intention, nor do we think that it is the effect. However, by tabling this amendment to make it clear that "involvement in terrorist activity" means no more than the activities and conduct described in Clause 2(2), I hope to ensure that there can be no doubt or further confusion. I thank my noble friend for her intervention in Committee and hope that she and other noble Lords will be minded to support our amendment. I beg to move.
Baroness Hamwee: My Lords, I am extremely grateful to the Minister for this amendment. The Bill creates a number of offences, so I felt that it was important to be crystal clear about the provisions. In my view, the amendment achieves that. I thank my noble friend.
Lord Sassoon: My Lords, these amendments relate to the requirement on the Treasury, where an interim or final designation expires or is varied or revoked, to take such steps as it considers appropriate to bring that fact to the attention of those informed of the interim or final designation.
When the Bill was being discussed before the Committee of the whole House, the noble Lord, Lord Pannick, expressed concern that the wording of what are now Clauses 8(2)(b) and 9(2)(b), which make provision for the duration, variation and revocation of interim designations, did not hold the Treasury to a sufficiently high standard, as it was open to it to consider, in its own subjective determination, the steps to be taken to inform those informed of an interim designation of the expiry, variation or revocation of the interim designation.
We agree that it is important that persons informed of an interim designation are also informed of an expiration, variation or revocation of that designation and, on reflection, we believe that it is appropriate to make express provision in the Bill for the Treasury to be required to take reasonable steps to notify such persons. Furthermore, the same standard should be applied to the steps that the Treasury must take to inform persons of the expiry, variation or revocation of a final designation. Therefore, these amendments, which I hope address the noble Lord's concerns, amend not only Clause 8(2)(b) and Clause 9(2)(b), but Clause 4(5)(b) and Clause 5(2)(b), which make provision for the duration, variation and revocation of final designations. The amendments have the same effect on each of the clauses, in that they remove the Treasury's discretion to determine subjectively the steps that it considers appropriate and replace it with an obligation to take steps that, on an objective assessment, would be considered reasonable in the circumstances. I therefore beg to move.
Lord Lloyd of Berwick: My Lords, the purpose of the amendment is to provide for a High Court judge to make the interim designation, not a Treasury Minister. The Minister makes the application for an order, but it is the judge who should make the order. That is the normal course of events when a person's assets are being frozen, for whatever reason, and it is right, given that the freezing of a person's assets has all the dire consequences described by the Supreme Court in the case of Ahmed. What is proposed makes the defendant, in effect, a prisoner of the state, as Lord Justice Sedley said in the Court of Appeal and as was repeated in the Supreme Court.
It is normal for asset-freezing orders to be made by judges. That has been the case since long before Resolution 1373. It was the judges, after all, who invented the Mareva injunction in the middle of the 19th century. I may have meant the 20th century-perhaps I was a century out. Such injunctions enabled a plaintiff with a good arguable case to go before the judge and obtain an order or injunction freezing the defendant's assets, if it seemed likely that those assets would be dissipated before any judgment against him. This happened often-I have granted many such freezing orders-and the system worked. The defendant, for obvious reasons, was not given notice of the application before it was made, otherwise it might have proved fruitless-he would have dissipated the assets before the order was made. When the order was made, he could come before the judge and seek to have the order set aside or varied. That is a well established system, as any judge or lawyer in the House would know. I cannot understand why that procedure should not be applied here.
The Minister was pressed at some length in Committee to give reasons why it should not work in that way. He said that in the end it came down to speed and complexity. However, there is nothing in either of those grounds. As soon as the Minister has grounds for suspicion, he can go before a judge the very next day and get his order. That is what happens as a matter of course in the commercial court, so I see no difficulty on the ground of speed. Of course, the Treasury Minister, when he makes his application, will have to have formulated his grounds, but he would have to have done so in any event, since the defendant, as soon as he has notice that he has been designated and that his assets have been frozen, will certainly go straight to the judge on appeal, as he will now be entitled to do. Since he can do that, and since the Treasury Minister will have to explain at that stage-perhaps the very next day-why the order has been made, clearly the Minister will have to have his tackle in order before the application is made. I suggest that there is nothing in the ground that this cannot be done quickly enough in the ordinary way.
The ground of complexity is equally without foundation. It is absurd to suppose that judges in the Administrative Court cannot understand these things. They have to understand them as soon as the defendant who has had his assets frozen goes to the judge, as he can do the very next day, so why can they not be made to understand them before the order is made by the Minister?
If there is no objection on either of those grounds to the order being made in the usual way, what is the real objection? It seems that this is the way in which it has always been done by the Treasury. Another reason is that the decision is more suited to the Executive and, indeed, is the proper function of the Executive. I regret to say that I cannot agree. Indeed, I hope never again to hear it said that a decision that takes away a man's right to deal with his property as he thinks fit is more suited to the Executive than the judiciary.
In Committee, I asked the noble Lord, Lord Carlile, whether he could think of any other order of this type that affected the liberty of the subject in this way. He could think only of a control order, which hardly provides a trouble-free precedent for what is proposed in this case. Let us assume that the result of the review being carried out by the Home Office is that we get rid of control orders, as I profoundly hope that we shall. How then can we justify continuing the regime that the noble and learned Lord, Lord Brown, described as "scarcely less restrictive" than control orders and which he said could be "even more paralysing"? I repeat what I said in Committee: I am in favour of interim orders being made on the basis of suspicion. To that extent, the Government are right. However, I am wholly against the orders being made by the Executive rather than by a judge in the ordinary way. I beg to move.
Lord Sassoon: My Lords, Amendments 9 and 11 require the Treasury to apply to the court to make an interim designation. As I set out in Committee, the Government continue to believe that Ministers are best placed to take decisions to impose asset freezes, but it is absolutely right that these decisions should be subject to intense scrutiny by the courts in cases where a person wishes to challenge the asset freeze.
I believe that there are three compelling reasons why decisions to impose asset freezes should be taken by the Executive. First, they are preventive, not punitive, measures taken on the basis of operational advice to protect national security. It is accepted practice for such decisions to be taken by Ministers, who take decisions to impose proscriptions, deprivations of citizenship and exclusions. Secondly, Ministers are then accountable for these decisions to Parliament and the courts. This clear accountability and their broad view of the threat posed mean that Ministers are best placed to weigh the protection of national security with the interests of the designated person. Thirdly, there are strong international comparisons for this practice. The US, Australia, Canada and New Zealand all entrust asset-freezing decisions to the Executive, whereas the noble and learned Lord's amendment would introduce mandatory court involvement in the making of interim asset-freezing decisions.
With permission, I should like to set out why the Government do not believe, as a matter of principle, that any asset-freezing decisions need to be approved by the courts. I accept, for example, that control orders work differently and are approved in this way, but the Government do not believe that the courts should have the same role in asset freezing, because the circumstances are clearly different. Asset freezes interfere with property rights but they do not impact on human rights to the same extent as control orders, which can impose restrictions on movement, association and communication. Furthermore, in contrast to control orders, asset freezing is not primarily used against people in the UK who cannot be prosecuted or deported. Indeed, as we have already discussed, only about 10 per cent of asset-freezing cases involve people who are in the UK or hold funds here and who have not been prosecuted for a terrorist offence. In cases where people are prosecuted for terrorist offences, evidence against them will be brought before a court.
In the case of terrorist groups or individuals overseas, the asset freeze has a less direct impact because it applies only within UK jurisdiction. Overseas terrorist groups and individuals have not challenged their asset freezes in the UK courts and we do not believe that mandatory court decision-making or approval would add any real value in these cases. Indeed, it may even provide groups such as Hamas with a public platform on which to challenge the UK's operational and foreign policy decisions.
We therefore believe that the right way to recognise the need for proper judicial scrutiny over asset freezing is not to introduce mandatory court involvement but, rather, to make it clear that there is robust court scrutiny of cases where individuals or entities wish to challenge their freezes. The Government therefore brought forward amendments to the Bill to specify that challenges to designations should be on the basis of an appeal, rather than judicial review. Although I realise that judicial involvement is a principle on which certain noble Lords will have strong views-one certainly-I hope that they will be able to accept that the right way forward is to maintain the current drafting of the Bill and I ask the noble and learned Lord, Lord Lloyd of Berwick, whether he is prepared to withdraw the amendment.
Lord Lloyd of Berwick: My Lords, the Minister gave three reasons why he could not accept the amendment, the first of which was that the measures are meant to be preventive. However, they are also rather more than preventive; they are extremely restrictive of the basic right of any individual to deal with his assets as he thinks fit. He also said that we are not concerned here with human rights. Of course we are; we are concerned with Article 1.
Lord Lloyd of Berwick: Did he not say that? He said that he differentiated this measure from control orders on the ground that we are not concerned here with human rights, but we are, albeit a different provision under the Human Rights Act-Article 1 of Protocol 1, which is that a person's property cannot be interfered with. We are in exactly the same area as control orders, which is why the judges in the Supreme Court have described asset freezing of this kind by Treasury order as being almost as restrictive as control orders themselves. The noble Lord has not dealt with any of those points. I think that the noble and learned Lord would like to intervene.
Lord Mackay of Clashfern: My Lords, I would like to be sure that I understand. The noble and learned Lord's Amendments 9 and 11 seem to allow the Treasury to make an application for leave to make an order. They do not provide for the Treasury making, nor suggest that the Treasury makes, the order in the end.
Lord Lloyd of Berwick: My Lords, I entirely agree with the noble and learned Lord. That is the normal way in which it is done-let the Treasury make the order, but only with the leave of the judge. I see no reason why that should not flow. It is an even clearer case than that of Mareva injunctions, where it was the judge who made the order. Either way, that is the way in which we should be dealing with this. I am sorry to say that I fear that it is pointless for me to take this any further, so I reluctantly beg leave to withdraw the amendment.
( ) they consider that it is necessary to act as a matter of urgency before proper consideration can be given to whether section 2(1)(a) applies."
Lord Pannick: My Lords, this amendment addresses the purpose of the interim designation. Noble Lords will be well aware that the Treasury has a power to make an interim designation for a period of up to 30 days if it reasonably suspects that the criteria for making a designation are satisfied. After the 30-day period, reasonable belief is required. I entirely accept that it is appropriate for the Treasury to have this power of interim designation on the basis of reasonable suspicion, but surely it is appropriate for the Treasury to have and to exercise such a power only in those cases where it has not had a proper opportunity to consider and to decide whether the stricter criterion of reasonable belief is satisfied. Amendment 10 would limit the interim designation power to those cases where the Treasury considers that it is necessary to act as a matter of urgency before proper consideration can be given to whether it has reasonable belief in the involvement in terrorism. I cannot see that it would be appropriate for the Treasury to exercise that power of interim designation in any other circumstances. I suggest
25 Oct 2010 : Column 1054
My Amendment 13 is grouped with Amendment 10. However, government Amendment 14 meets the concern which I expressed in Committee and explains Amendment 13, which deals with the need for improved safeguards against repeated interim designations of the same person. I thank the Minister for tabling Amendment 14. I beg to move.
Baroness Hamwee: I have tabled Amendment 12 in this group. First, with regard to Amendment 10, I hope we will not hear from the Minister that it is not necessary to put the provision into the Bill because it is the practice-a point I may make later in a different context.
I might have said that my Amendment 12 was substantially the same as the amendments tabled by the noble Lord and the Minister. The point is the same-that the same or similar evidence should not be used to make more than one interim order. I could make the Government's arguments against proposed new paragraph (b) in my Amendment 12, but I would like to hear them do so.
As regards the second limb of my amendment, it seemed to me that a time limit would be easier to deal with and could be more clearly analysed than relying on whether evidence is the same or substantially so. A time limit, although six months may not be the correct one, would make the matter absolutely clear-no one could argue with it or argue its nuances.
Lord Lester of Herne Hill: I agree with the noble Lord, Lord Pannick, and with my noble friend. I am speaking partly as a member of the Joint Committee on Human Rights, whose report was published on Friday last. We took the most unusual step of publishing our preliminary report before we had seen the Government's response. I am therefore sure that once the committee, which meets tomorrow, has had a chance to look at this debate, it will be too late to influence what happens in this House, but I hope it may be looked at in the other place.
I shall not waste the time of the House by citing what is in our report as it can be read by anyone who is interested. However, one point at the end of it bears on all these amendments. At paragraph 1.47, we ask the Government to explain why the opportunity is not being taken in the Bill to provide a comprehensive and accessible legal regime for terrorist asset freezing, and therefore to provide Parliament with the opportunity to scrutinise those powers for human rights compatibility, the lack of which so troubled the Supreme Court. That is a general and important point, and it may have to be pursued if not here then in the other place.
Lord Davies of Oldham: Amendment 17 stands in my name and that of my noble friend Lord Bach on behalf of the Official Opposition. We table it today in order to debate what the Government propose to do about people whom they have reasonable grounds to suspect of being terrorists but have not gained further evidence to impose a further interim or final designation.
25 Oct 2010 : Column 1055
The Minister will appreciate the fact that he has had support from the Opposition on crucial aspects of this Bill both in Committee and again today. However, he ought not to countenance the view that we have no anxieties about the legislation, or any actions of the Government that may be related to the legislation if and when it comes into effect. We all recognise the seriousness of the debates we have had on this important legislation. On the one hand, we have clearly heard about the rights of the individual and their dependants, who may be subject to an asset-freezing law. We have heard so eloquently expressed today, in Committee and on Second Reading the anxieties that freezing orders can restrict the ability of such people to live their lives in the way that they would choose. That of course is an encroachment on human rights and we are grateful to those noble Lords who, as members of the legal profession, are able to identify exactly which human rights are involved in this. This Chamber has enough currency with regard to those significant debates of principle for all of us to be well aware of the importance of the issues.
On the other hand-this weighs with Her Majesty's Opposition as it does with the Government-we have to weigh up the issue of the rights on the other side as well: the rights of our fellow citizens to enjoy safety and security. Those rights are fundamental too, and they are fundamental to the Government, who have the job-the fundamental task-of protecting their citizens. Failure to do so could affect a large number of people in an appalling way through death, injury and the loss of loved ones.
At times, we have perhaps seen those rights generalised and offered as a backdrop to legislation. I emphasise that-both when we were in government, responsible for the development of the orders, and now that we are in opposition, offering support in principle to the legislation and the basis on which it is established-it is important that the security of our citizens is guaranteed, as far as government can make that possible.
We all know the threats with which we are faced, and we all know that at any time the condition of public opinion could change significantly if some further outrage occurred. That is why, when the Government argue in certain crucial areas for the necessity of executive power, we support their position, because the Executive are alone able to act preventively. Remember that that is a crucial dimension of the Bill, that the Executive are able to act preventively to protect our citizens.
However, the Opposition have our anxieties and, within the context of the Bill, I feel it right that we should give voice to them. I know that the Minister could easily slip into the bolt-hole of suggesting that even the Official Opposition are straying a little from the immediate context of the Bill. I hope that he will not rush to that defence but will address himself to our proper worries. They are these.
Over the past week, we have had proposals about government expenditure. Tucked away within the expenditure budgets were proposals about surveillance. Against the various cuts announced to fundamental areas of our fellow citizens' lives, the coalition Government have decided to ring-fence spending-some £2 billion-for the Home Office to enable the police and security services to track our e-mails and phone calls, to follow our text messages and to survey internet use. This was a surprise decision for us and, I imagine, for many members of the public and for many noble Lords. Am I to understand that we should expect legislation on that point in the near future? Is that the Government's answer to the gap when an interim designation under the Bill may fail on evidential grounds-that those new resources will be made available?
Lord Sassoon: My Lords, I will first address Amendments 12 to 14, which concern making a subsequent interim designation of someone who has already been subject to an interim designation. A common theme of the amendments is the information which can be used to make a further interim designation against the same person. These amendments clarify that the Government can make a further interim designation against the same person only on the basis of significant, not incidental, new information. The Government agree that any new information would need to be significant in order for the Treasury to make another interim designation. Our amendment is tabled to make it clear that a second interim designation cannot be made on exactly the same or substantially the same evidence.
The amendment moved by the noble Lord, Lord Pannick, prevents the Treasury making more than one interim designation of the same person in relation to substantially the same evidence, but not exactly the same evidence. I am grateful to the noble Lord for what I took to be the likelihood of him formally withdrawing his amendment-he is nodding. He also said that he will support the government amendment dealing with that point, and I am grateful for that.
The amendment tabled by my noble friends Lady Hamwee and Lady Falkner of Margravine mirrors the government amendment but, in addition, prohibits the Government making a further interim designation on the same person within a period of six months. I understand that the purpose of this amendment is to ensure that interim designations are not abused effectively to subject someone to a continuous interim designation lasting more than 30 days. In practice, it is extremely unlikely that the Government would be able to make the same person subject to a second interim designation within six months without a final designation being made. This would arise only where we are unable to make a final designation but have become aware of substantial new information showing that a further interim freeze is necessary for public protection. Such a situation would be extremely unusual. Ordinarily, we would expect that significant new information would support a reasonable belief threshold, but it is nevertheless possible. Any second interim designation must, of
25 Oct 2010 : Column 1057
Before speaking to the government amendment, I will discuss the other amendments in this group. Amendment 10 limits the circumstances where interim freezes can be imposed to when the Treasury considers that there is an urgent need to act before proper consideration can be given to whether the reasonable belief threshold for a final designation can be met. We share the view that interim designations should be made only where necessary. Where the Government have sufficient evidence available at the outset to meet the reasonable belief test, the Government will make a final designation, not an interim one. This reflects that the fact that where we can do so, it is clearly in the Government's interest to make a final designation rather an interim designation because, first, a final designation lasts for 12 months compared with 30 days for an interim designation and, secondly, because it is not in the Government's interest to suggest to the designated person and to the outside world that we have only reasonable suspicion of a person's involvement in terrorism where we in fact have reasonable belief. Therefore, interim designations will be made only in cases where the Government at the time of making the decision have sufficient evidence to meet a reasonable suspicion test but not a reasonable belief test.
The amendment proposes that as an additional safeguard interim designations should be made only where there is an urgent need to act before the Government have considered whether there is sufficient evidence to make a final designation. Let me stress that there is already an important safeguard in place. Interim designations and final designations can be made only where necessary for public protection. The question raised by this amendment is what additional purpose is achieved by requiring not only that interim freezes must be necessary for public protection but that there must also be an urgent need to act. If an urgent need to act is the same as being necessary for public protection, there is no need to add it. If, however, an urgent need to act is something additional to "necessary for public protection", what situations does it cover that the phrase necessary for public protection does not?
In our view, the Government must be free to impose interim freezes in cases where we have sufficient evidence to meet the reasonable suspicion test and where we consider that it is necessary for public protection. To accept a situation where the Government consider that an interim freeze was necessary for public protection but were unable to act would negate the purpose of making provision in the legislation for interim freezes and would increase the risk to the public from terrorism. For this reason, the Government cannot support the amendment and I hope that the noble Lord will withdraw it.
The noble and learned Lord, Lord Lloyd of Berwick, has not spoken to Amendment 15, so I propose to move straight to Amendment 17. This amendment seeks to clarify that where an interim designation expires, whether after 30 days or on the making of a final designation, this does not prohibit the continued investigation of that person by the relevant authorities. I am grateful to the noble Lord, Lord Davies of Oldham, for reminding us of the underlying purpose of all this activity against terrorism of which this Bill forms a part. The Government must be enabled to deploy all reasonable legislative and other appropriate powers to prevent terrorism. Therefore, it is good to be reminded of that at this point.
However, asset freezes are separate and completely distinct from investigative operations. While investigations may be relevant to the evidential base for making an interim designation, they are not directly linked. Neither the existence nor the expiry of an interim designation prohibits the relevant authorities from pursuing or continuing investigations they determine to be necessary. For that reason, we do not believe that it is necessary to amend the legislation and therefore hope that the noble Lord will not press his amendment.
Lord Pannick: My Lords, in relation to Amendment 10, the Minister emphasises that an interim designation order may be made only where it is necessary for purposes connected with protecting members of the public. Of course, he is correct. The difficulty with that argument is that the same criterion appears in precisely the same form in Clause 6(1), which is concerned with interim designation orders, and in Clause 2(1), which is concerned with final designation orders. Indeed, the criteria in the Bill for making an interim designation order are exactly the same as the criteria for making a final designation order, save that the final designation order may be made only where there is reasonable belief and the interim designation order may be made where there is reasonable suspicion.
My point is that there needs to be in the Bill something that identifies the circumstances in which it may be appropriate for the Treasury to take this, I hope, exceptional step of making an interim designation order even though it only has reasonable suspicion. The Minister, with great respect, has not answered my point that it can surely only be where there are circumstances of urgency and when the Treasury has not had time to deliberate and decide whether there is reasonable belief that it could be appropriate to make an interim designation order.
I am not going to pursue this matter today, but I ask the Minister and those who assist him to read the report of this debate before the next stage just to see whether he may be persuaded that there is something in what I say. He has himself brought forward, helpfully, a number of amendments to clarify the Bill in order to remove potential ambiguities, and I suggest that this is another. For the moment, I beg leave to withdraw the amendment.
Baroness Hamwee: I shall speak also to Amendments 20, 20A and 22. They all concern the licensing regime and I am keen to ensure that there is sufficient in the legislation, as distinct from current practice, to put a direct obligation on the Treasury to deal with licences in the way that we have come to understand it does, and that the obligations are direct and thus do not require what might be described as a slightly more complicated Human Rights Act route.
both of the person concerned and of any dependants. Subsistence costs are not much to ask for, and they
25 Oct 2010 : Column 1060
for the reasons that have already been touched on, and clearly this must be urgent. It almost goes without saying that if all of a person's assets are frozen, enough should be released to allow for reasonable living expenses.
I understand that the Government say that the Human Rights Act in effect obliges the Treasury to issue licences so that convention rights are not infringed. No doubt the Minister will take this opportunity to spell out exactly what convention rights are in issue and give the Government's view on the route taken through them to achieve the result I want.
Amendment 20A deals with the costs of legal representation or legal advice. We debated this in Committee and I hope that my amendment has taken the helpful points made in particular by the noble Lord, Lord Pannick, in order to address the possible use of such a provision to evade proper asset freezing controls-or, to put it more colloquially, giving money to dodgy lawyers who might then give it back to the person who is being controlled. So I have referred to "regulation" in the amendment. I am aware that the practice of the Treasury, which is not the same as what is stated in the Bill-although I may again be told about human rights provisions-is generally to license the granting of legal aid without anticipating what might happen to the legal aid budget. I am not convinced that that is sufficiently wide.
Amendment 22 deals with the variation of a licence. I have tabled it in order to seek assurances that the court can vary an order. Clause 27 states that a decision can be set aside. It would again be helpful if the provision were spelt out, although I suspect that I will again be told that there is Human Rights Act protection. Perhaps the Government can tell the House why it cannot be spelt out that an order can be varied rather than simply be set aside. If a decision were set aside, it would allow the designated person to go through the hoops again. However quickly the matter is dealt with, some time will be taken. However much the Treasury takes into account what the court says-it will clearly be under pressure to do so-it is all rather less direct and less clear. I beg to move.
Lord Pannick: My Lords, I support the amendments, in particular Amendment 20A. The Treasury has no interest whatever in controlling expenditure on legal advice and legal representation; its only interest is to ensure that the assets are not used for terrorist purposes. It is important that the uninhibited right to seek legal advice and to obtain legal representation is stated clearly in the Bill and that it is not left to Treasury concession.
Lord Wallace of Tankerness: I thank my noble friend Lady Hamwee for dealing with licensing, which was an important part of our deliberations in Committee. Amendments 19, 20 and 20A would write expressly into the Bill a duty on the Treasury, if requested, to issue licences to allow the designated person and his
25 Oct 2010 : Column 1061
As my noble friend made clear, the amendments reflect concern that the Bill does not include a sufficiently clear obligation on the Treasury to issue licences for these purposes and that designated persons and their families are reliant on the good faith or good practice of the Treasury to grant such authorisations. I recognise the concerns that have prompted the amendments. It goes without saying that a designated person must be in a position at the earliest possible opportunity to access funds to meet his or her and their dependants' living costs and to be able to pay for legal advice and representation in relation to their designation.
However, we do not think that to include in the legislation an obligation to issue such licences is necessary, since the obligation already exists by virtue of the Treasury's duty to act in compliance with the Human Rights Act. Under Section 6(1) of that Act it would be unlawful if the Treasury acted in a way which is incompatible with a convention right. So, in response to the point made by my noble friend, it is not a question of acting with good grace but of acting under a requirement-an obligation-on the Treasury. It means that the Treasury must issue any licence that may be required to ensure that the affected person's convention rights are not unlawfully infringed by the imposition of an asset freeze.
In order to secure compliance with this obligation on the Treasury, it routinely issues licences immediately on designation so that designated persons from the outset have access to frozen funds, including all social security benefits to which they are entitled, to meet their day-to-day living expenses. There is no requirement that such licences be requested by the designated person; they are issued automatically as a matter of course. The licences that the Treasury issues are broad and do not restrict the designated person's access to funds necessary to meet only reasonable living costs. The only controls imposed are those necessary to protect against the risk of funds being diverted to terrorism.
In addition, a designated person or any other affected party may request a licence at any time if access to funds or economic resources is required which is not already authorised under the terms of a licence issued immediately upon designation. The Treasury's practice is to treat any request for such licences as a matter of priority and, in particular, to deal urgently with requests where the failure to act quickly would result in hardship to the designated person or their family. It is therefore not necessary to impose an express duty on the Treasury to treat such applications as a matter of urgency as the Treasury already has a legal obligation to act in a way which is compatible with the affected person's convention rights, and it is accordingly the Treasury's established practice to do so.
My noble friend and the noble Lord, Lord Pannick, attested to the importance of legal expenses. Again, the Treasury is obliged by virtue of human rights law to ensure that it does not act in a way that would impede an affected person's access to legal representation.
25 Oct 2010 : Column 1062
There is an overriding obligation on the Treasury to issue licences for legal expenses. Therefore, again, it is not necessary to write such a duty into the Bill. I assure my noble friend and your Lordships' House that the absence of such an express duty would in no way prevent an affected person from challenging the Treasury in circumstances where a Minister decided to impose a particular condition in a licence, delayed issuing the licence or refused to issue it at all. I repeat to my noble friend that this is not simply a matter of Treasury practice, but of the Treasury honouring the legal obligations upon it.
Lord Pannick: If I understood him correctly, the Minister mentioned legal aid for the designated person and allowing third parties to fund legal representation for that person. My concern is when the designated person has assets of his own which he wishes to spend on his legal representation. I should like to have an assurance that the Treasury will allow the designated person to use as much of his own legal resources as he thinks appropriate in his own legal defence provided that the payment, as Amendment 20A states, is to,
Lord Wallace of Tankerness: I said that in addition to a general licence which already exists with regard to the Legal Services Commission paying legal aid funds to solicitors representing designated persons who are eligible for legal aid, the Treasury will ensure that an additional general licence will be issued which authorises a third party to meet the legal expenses of designated persons by paying their lawyers.
The noble Lord, Lord Pannick, raised the issue of whether the person's own assets might then be used. That would be distinctive from a general licence which, by definition, cannot relate to that of an individual. As I indicated earlier, licences issued in respect of individuals are intended to impose controls that are necessary to protect against the risk of the funds being diverted to terrorism. That is the test. Therefore, an application for a licence-it would have to be a licence for an individual with regard to his own individual circumstances and not a general licence to which I have already referred-would have to be looked at by the Treasury against that test to ensure that that there was not a diversion of funds to terrorism.
Lord Pannick: I am sorry to test the Minister's patience, but if I understand him-please correct me if I am wrong-he is saying that there may be circumstances in which the Treasury would restrict the amount of money that the person who is designated-his own money-may be able to use for his own legal representation. If I understand the Minister correctly,
25 Oct 2010 : Column 1063
Lord Wallace of Tankerness: My Lords, in principle, it would be possible to allow people to spend their own funds on legal expenses. It does not detract from the possibility of a licence being issued, but there are practical reasons why it is not possible to allow frozen funds to be used to pay legal expenses. For example, there would be circumstances where banks would be put in a position of having to determine whether a particular transaction was for legal expenses or not. The Treasury allows this matter to be dealt with by way of licence with the appropriate conditions attached. That would be the way to deal with an individual licence on an individual application and a person seeking to use his own funds as opposed to and distinct from the general licence that exists for legal aid, which I have indicated would be issued with regard to the third-party circumstances that we have already discussed.
Lord Lester of Herne Hill: Will my noble and learned friend tell the House what legal remedy there would be if, in spite of good intentions, the reality was that there was an unfair, unnecessary and disproportionate interference with the right of access to court as a result of the way in which the Treasury was exercising its discretion?
Lord Wallace of Tankerness: My Lords, as my noble friend is aware, provisions within the Bill allow for a decision not to issue a licence with suitable conditions to be challenged. If I may say, this is a circular argument-how do you get the funding to challenge it?-but it is not without remedy.
I was asked whether there would be any restriction on the volume of funds. If the funds are required specifically for the purposes that the noble Lord, Lord Pannick, indicated, that would not lead to a restriction. This is best dealt with, and would be dealt with, on the basis of an individual licence application. Obviously, there would be a remedy there if the person was not satisfied with the terms of the licence that was issued.
The other amendment to which my noble friend spoke relates to the position under Clause 27 for a person affected by a Treasury decision other than a designation-related decision to apply to the court not only for the decision to be set aside but for it to be varied. The amendment would in particular allow decisions relating to licence conditions-the very issue that I have been discussing with my noble friend Lord Lester-such as limits on the amount of cash a designated person could access per week to be varied by the court. The Government agree that the court should have sufficient powers to require the conditions of a licence to be varied so as to ensure that the designated person
25 Oct 2010 : Column 1064
Under Clause 27, the court can set aside any licence-related decision made by the Treasury. For example, if the court considers a designated person should be entitled to access a larger amount of cash per week than he is permitted to withdraw under the cash limit in the licence, the court can set aside the Treasury's decision to impose that cash limit. While it would not be open to the court expressly to write conditions into the licence or rewrite existing conditions, the Treasury is obliged to take into account the reasons that the court gives for striking down a condition in the licence. In practice, the Treasury has immediately revised licences, taking account of the court's view on what the licence should contain. Therefore, I hope that my noble friend will not press her amendments on the assurance that these are matters not just of good practice but of obligation, which the Treasury obviously takes very seriously.
I understood my noble and learned friend to say that a licence to use funds for legal advice or representation is in part to protect the banks. I find that difficult to follow, because I am asking for a licence; I am not asking for the banks to be allowed to release funds simply on the say-so of the designated person or third party that this is the use to which the funds would be put. I make that point quite seriously, although I will not ask my noble and learned friend to come back on it if he does not want to at this point. However, which article or articles does he rely on with regard to subsistence costs? The right to a fair trial leads one very directly to the point of legal advice and representation. It is probably, although I do not want to put words into the Government's mouth, a combination of other articles that takes us to subsistence.
Lord Wallace of Tankerness: My noble friend is right to say that there are other articles. The right to a fair trial is the obvious one, but there is also the right to use one's resources under Article 1 of Protocol 1. Also used in these contexts sometimes is the right to family life under Article 8, which might well be relevant in circumstances such as these.
(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 Administration Act 1992 (false representation for obtaining benefit etc);
(b) an offence under section 5 of the Perjury Act 1911 (false statutory declarations and other false statements without oath); or
(c) an offence under section 44(2) of the Criminal Law (Consolidation) (Scotland) Act 1995 (false statements and declarations)."
Baroness Hamwee: This was another matter that I raised in Committee, and I have been grateful for the opportunity to discuss it with my noble and learned friend since then. We agreed that I would table an amendment again to enable the Government to give a slightly longer explanation than they were able to at that date.
The amendment would protect a person who does not wish to incriminate himself. The exception of reasonable excuse would apply in this situation; it would be reasonable for a person to say that he will not comply because of the right not to self-incriminate. But this is a general defence to something that is really very specific, and if the Government can take us through their thinking it would be very helpful. On the question of what is reasonable in particular circumstances, one would have to analyse the circumstances so carefully and to such a degree that the concern about self-incrimination might be trumped. That is why a provision that was-as I described it-more straightforward, although longer, would be appropriate.
Lord Wallace of Tankerness: Again, my Lords, I am grateful to my noble friend for raising this point, which we dealt with in Committee and which we have had an opportunity to discuss further. I hope that I can persuade her that the Bill does not really provide the ace of trumps up the sleeve; rather, it recognises-as I think would this House-the importance of the privilege against self-incrimination.
The amendment would replace a qualified requirement to provide information in the absence of reasonable excuse with an absolute obligation, but would provide that such information could not be used in subsequent criminal proceedings. Again, as my noble friend indicated in moving the amendment, the purpose of doing so would be to protect the privilege against self-incrimination.
In Committee, I confirmed to my noble friend that the privilege against self-incrimination was not overridden by the Bill. In particular, I clarified that if a person was concerned that compliance with an information request would infringe that person's right against self-incrimination, that concern itself would form a reasonable excuse, under what is now Clause 22(1)(a), for refusing to comply with that request.
I appreciate that the amendment is prompted by a concern that "reasonable excuse" operates as a defence, and that it is inappropriate to rely on a general defence in such a fundamental area. I readily appreciate the nature of this concern, but it is misplaced as it is founded on a misunderstanding of how the prohibition in Clause 22(1)(a) will operate. In order for the offence to be committed, the person must have no reasonable excuse for failing to provide the information. If the person decided that providing the information would infringe his or her right against self-incrimination, he or she would have a prima facie reasonable excuse for withholding it and would not have committed the offence.
The onus would not be on the person to raise a defence based on the privilege against self-incrimination. It would instead be on the prosecution to show that the person's reliance on that privilege was not reasonable in the circumstances. In practice, no prosecution would be brought unless the prosecution considered that there was a reasonable prospect of establishing this, and then it would be incumbent on the prosecution to prove that beyond reasonable doubt. I hope that this further reassurance will permit my noble friend to withdraw the amendment.
Baroness Hamwee: My Lords, with reference to where the onus lies, the Minister's reply is particularly helpful; I am glad to have the assurance that it lies on the prosecution in that situation. I beg leave to withdraw the amendment.
Lord Pannick: My Lords, this amendment concerns the award of damages where a person wins their appeal against a designation order. In Committee, the Minister said, at column 193 of the Official Report, that Clause 26(3), which was introduced by a government amendment in Committee, would ensure that a person who won their appeal against a designation order would be able to claim damages from the court. He was responding to an amendment tabled in Committee by the noble and learned Lord, Lord Davidson of Glen Clova.
I expressed concern in Committee that Clause 26(3) does not clearly confer a power on the court to award damages, even though it states that the court may make such order as it sees fit. The basis of my concern is that it is a general principle of law that to establish in court that an administrative act is unlawful because it is unjustified or based on a mistaken view of the relevant legal power does not of itself normally confer a right to damages for the victim, even if they are able
25 Oct 2010 : Column 1067
Since the Government rightly intend to provide for a wider right to claim damages in the present context, given the damaging effect that a mistaken or unjustified designation order will have on a person and their family, my amendment seeks to state the principle clearly in the Bill. The amendment identifies what seems to be the appropriate criterion in this context. The victim should not have a right to damages in every case. The matter should be left to the discretion of the judge, both as to whether damages should be paid and, if so, how much. There may-although I hope not-be cases where the officials impose a designation order without proper care and attention, causing substantial harm to the victim. At the other end of the scale, there may be cases where the victim has, by his own conduct or failure to co-operate with the authorities, brought the designation order on himself. It would be quite wrong for that person to be awarded compensation simply because he succeeds in his appeal. I hope the Minister will confirm today, as he did in Committee, that the Bill is intended to confer a right to claim damages, with the judge in his or her discretion deciding whether it is appropriate to award damages in the individual case. If so, I hope the Minister will accept the amendment to clarify the position in the Bill for the avoidance of doubt and, indeed, for the avoidance of what will otherwise inevitably be expensive litigation from which no one, other than lawyers, will benefit. I beg to move.
Lord Lester of Herne Hill: I spent much time on Bills seeking to persuade the previous Administration that the statute book should state the law as clearly as possible. I remember most recently, on the Equality Bill, that I managed to persuade the previous Government-with the help, as I recall, of my noble and learned friend Lord Wallace of Tankerness-that statutes ought to say what the law is. The summary of the position by the noble Lord, Lord Pannick, is absolutely accurate. There are problems in administrative law over the circumstances in which compensation or damages are payable. The Bill, at present, does not explain those.
Presumably the Minister will remind the House that we are dealing with Article 1 of Protocol 1; we are dealing with circumstances in which property has been taken away from somebody. In an appeal, I suppose it would be said that that was an interference that should give rise to compensation. In other words, the European convention and, I suppose, the Human Rights Act-which require this legislation to be read, if possible, compatibly with the convention rights-would give rise to a right to compensation or damages in appropriate circumstances. However, it is not satisfactory to leave this to a Pepper v Hart statement by the Minister, rather than to have some appropriate language-whether that of the
25 Oct 2010 : Column 1068
Even if the amendment of the noble Lord, Lord Pannick, is not accepted by the Government, I hope that by Third Reading some appropriate language will be inserted so that the Bill will state the law as it is intended to be, rather than relying on Pepper v Hart. In that case I had the good fortune to appear on behalf of the successful party, with the noble and learned Lord, Lord Mackay, dissenting. I sometimes wonder, with respect, whether he was right in his dissent. The case gave rise to the possibility that Hansard will always be used to make good what the statute does not properly state itself. Although I hope I was right and the House was correct in the outcome of Pepper v Hart, it could set a bad example to Ministers if they did not amend Bills to state the law correctly.
Lord Mackay of Clashfern: Noble Lords can hardly expect me to remain silent while that remark is made. I support the amendment moved by the noble Lord, Lord Pannick. So far as I can judge, it seems to be appropriate in its wording. If the Government were willing to accept the principle, they might wish to consider the precise words. There is also the question of whether the same principle should not apply in relation to Clause 27, where a judicial review provision is in question. The remarks of the noble Lord, Lord Pannick, apply as much to judicial review as to any other form of order in administrative law. Therefore, it is worth considering-if the Government decide to accept this amendment or something like it-whether something of the same kind should go into Clause 27 as well. It is obvious that if the Government think this is something that should happen, it is unwise to leave it on Pepper v Hart. However good the noble Lord, Lord Pannick, thinks that decision is, it would be rather better to put it in express provision, which in any event saves a certain amount of litigation.
Lord Bach: Briefly, I can say only to the noble and learned Minister: plus ça change. Here I am, supporting in what I am about to say the suggestion made by the noble Lord, Lord Pannick, in his amendment. I do so in rough terms; I am not in any way inviting him to test the opinion of the House on it today. This is surely a matter that can be dealt with in some more satisfactory way than that. The noble Lord seems to have a point, backed up as he is by the noble Lord, Lord Lester, and the noble and learned Lord, Lord Mackay of Clashfern. I ask the Minister this simple question. Presumably he will argue that,
Lord Wallace of Tankerness: My Lords, in responding to an amendment moved by the noble Lord, Lord Pannick, I feel somewhat guilty as I do not feel able to go so far as my noble friend Lord Sassoon in offering concessions. However, I welcome the noble Lord's
25 Oct 2010 : Column 1069
This amendment relates to the debate that we had in Committee about the avenues available to a person who has suffered loss as a consequence of an asset freeze to obtain compensation. During that debate, the noble Lord, Lord Pannick, the noble and learned Lord, Lord Davidson of Glen Clova, and my noble friend Lady Noakes were particularly keen for the Government to indicate their position on this point, and I shall try to do so.
The amendment of the noble Lord, Lord Pannick, would provide that the court can, in relation to appeals by designated persons against designation-related decisions, award damages if and to the extent that the court thinks it just and appropriate to do so. The noble Lord has tabled the amendment following our discussion on the scope of the orders available to be made by the court under Clause 26(3). In that discussion I drew the Committee's attention to that provision and indicated that,
It is not the Government's intention to overturn that principle. However, it is the case that a designated person appealing a designation-related decision under Clause 26 can in certain circumstances make a damages claim in connection with that appeal. I apologise to your Lordships' House if I did not make that distinction clear.
To clarify the effect of Clause 26(3), the orders that a court may consider appropriate in connection with an appeal of a designation could include, for example, an order to revoke the designation, or the renewal of it, or an order to uphold the designation. It would be open to a designated person to include in these, or subsequent, proceedings claims for damages under the Human Rights Act, as I believe my noble friend Lord Lester indicated, such as breach of the person's right to enjoyment of property under Article 1 of Protocol 1 as a consequence of being invalidly designated, or-as I indicated in relation to the previous amendment- breach of Article 8, the right to respect for private and family life.
There have been relatively few legal challenges to designations, but where such challenges have been made a number of them have either included Human
25 Oct 2010 : Column 1070
My noble friend Lady Noakes raised in Committee concerns about persons other than the designated person suffering loss as a result of a designation. Nothing in this Bill is intended to change the existing grounds-whether as a matter of the law of tort or delict or under the Human Rights Act-on which anyone affected by an asset freeze, whether the designated person, such person's spouse or other family member, or any other third party, can claim damages against the Treasury if they believe that they have suffered loss as a consequence of an unlawful asset freeze.
In relation to loss suffered by both designated persons and persons other than designated persons, I should like to make one further crucial point. The purpose of the asset-freezing regime is to prevent the diversion of funds and economic resources for terrorist activity. It is the Treasury's policy as far as is possible and consistent with that aim to license the use of funds and economic resources. The licensing regime successfully mitigates the impact on designated persons, their families and other third parties of an asset freeze. The general presumption is that a licence will be granted unless there is a risk that the transaction carries a risk of funds being used or diverted for terrorist purposes. Where third parties are affected, the power to grant a licence is exercised so as to ensure that, so far as is possible, no loss is suffered by any third party. For example, where payments to a family member or other third party would be prohibited because the designated person would thereby receive a significant financial benefit-for example, the discharge of a debt owed by the designated person-the Treasury can license such payments. Similarly, payments by a designated person to a third party in respect of, for example, contractual debts owed by the designated person to that third party are capable of being licensed.
I have heard the request that it would be useful to put something in the Bill. My concern is that although that might to some extent allow the individual to look at it and not necessarily contact a lawyer-however, I rather suspect that in many cases a lawyer will be quickly contacted-it might not cover the ingenuity of lawyers. If you put something in the Bill, it might seem to be limiting whereas lawyers might use their ingenuity to come up with other grounds under the Human Rights Act under which a claim could be made in the context of appeal proceedings or other proceedings. I shall certainly reflect on what has been said but I-
Lord Lester of Herne Hill: I am very grateful to the Minister. However, I would still like him to explain the practical disadvantage in accepting the amendment of the noble Lord, Lord Pannick. Would it not be of great advantage to the principle of reasonable legal certainty if this part of the Bill stated the law as it is? If not, what other means can the Government think of to bring home to people what the true legal position is, without having to consult a lawyer?
Lord Wallace of Tankerness: My Lords, my concern is that it would not necessarily provide the degree of certainty which my noble friend seeks. It could leave open all sorts of possibilities as to the grounds on which claims might be sought. However, important points have been made in the debate. I wish to reflect on them without commitment, but I am concerned that the proposed remedy might raise as many questions as it is intended to resolve. Therefore, I hope that the noble Lord will withdraw his amendment.
Lord Pannick: I am grateful to the Minister. I am also very grateful to the noble and learned Lord, Lord Mackay of Clashfern, and to the noble Lords, Lord Lester of Herne Hill and Lord Bach, for their support.
|Next Section||Back to Table of Contents||Lords Hansard Home Page|