Islamophobia
Baroness Falkner of Margravine Excerpts(5 years, 10 months ago)
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Baroness Falkner of Margravine (LD)
My Lords, I join others in thanking the noble Lord, Lord Sheikh, for securing this significant debate. I begin by saying that I have the utmost regard for the motives of those behind the report and I do not intend any disrespect in my remarks today. I do not like to be self-referential in public debates but as this topic is so defined by identity, I find that I have to share a little of my experience as context for the remarks I will make.
I am familiar with the problems described by the witnesses in the report. As an ethnic and religious-minority woman, I tick three of the protected characteristics of hate crime, but my experience of discrimination is a very long tale. My family experienced discrimination on their move from India to Pakistan in 1947 and I have experienced discrimination, been denied rights and been routinely verbally abused—all in Muslim-majority countries, at the hands of other Muslims, in Pakistan, where I grew up, and subsequently in other Muslim countries in the Middle East. This happens still today. It was probably because my family were not sons of the soil; because I was educated at an elite convent school, which was deemed suspicious, despite the fact that Pakistan’s only female Prime Minister went to the same school; and because we fought for what in those countries are called liberal values, such as women’s rights and human rights.
The discrimination was palpable and was shown to us for being “insufficiently Muslim”, but that experience was as nothing compared to the discrimination that Ahmadiyyas, Shias and various others still face today at the hands of other Muslims. My point is that there is great diversity within Islam in terms of its different traditions and the composition and practice of its adherents, as well as their ethnicity and geographical backgrounds. It is an error to speak of the Muslim experience in the West as one of a homogenous group, with “them” against “us”, the victims. The identity of Muslims from east Asia is profoundly different from that of south-east Asian Muslims, or from Turkic, central Asian or west African Muslims, leaving aside Europeans and other converts to Islam. So a community of global adherents to a particular religion, particularly one which is so diverse, does not lend itself well to being set up as a group with distinct and superior collective rights in a European context, in opposition to the majority population, which is what I find this report is mainly about.
Baroness Falkner of Margravine
I will give way only very briefly, because my time is limited.
I take it that the noble Baroness has decided not to intervene. I am grateful to her for that. I am always open to have a discussion with her, but time is limited and I have quite a lot to say.
Baroness Warsi
It is just that the noble Baroness made a comment just then which is simply untrue; I want to put that on the record.
Baroness Falkner of Margravine
Since I do not know what comment the noble Baroness is referring to and since I cannot prove or disprove, in belief terms, what is or is not true, I think I will let that one go.
My other broad problem with the analysis is that, while it takes pot shots at other political ideologies, it is almost entirely silent on Islamism and political Islam. So while there is reference to incidents of hate crime and Islamophobia spiking after a terrorist incident, or after sustained negative media coverage of Muslims, the report does not contextualise those rises against the broader backdrop of the portrayal of Islam as being problematic due to Islamism. It seems hardly surprising that there has been a rise in Islamophobia over the last two decades when it is seen against the back- drop of the 9/11 attacks, our knowledge of the Taliban’s ideology during the Afghan conflict, and the sustained and ongoing nearly two decades of Islamist terrorism in the West, including the UK. We can add to this the rise of violent extremism within the UK—yes, right-wing extremism as well—and the identification of Pakistani men as a particular category in sexual grooming in the UK. To this long list let me add the necessary military intervention by the United Kingdom and its allies in the war against Islamic State. This causal relationship in the “normalisation” of Islamophobia that the report claims exists has taken place against a backdrop of the public being exposed to an unprecedented display of medieval savagery, entirely inimical to our values, in Islamic State’s actions in Syria and Iraq. Moreover, the fact that so many western Muslims have chosen to lay down their lives in that cause has come as a surprise to the public.
So context is important, and that is what is missing in the report. One could look at things the other way, as many of us do, and the report picks this up insufficiently: we are intensely loyal to Britain; we believe we absolutely belong here; and we are full and active citizens partaking of the opportunities this country offers. Despite the malign acts of our co-religionists and their impact on public perception, the majority of us get on and live our lives day in, day out without thinking of ourselves as victims of something undefinable. I think the dissonance between the report and what I have described lies in the narrow specialisation of the contributors of the evidence. In academia they are drawn mainly from sociology, criminology and geography, with a particular critical theory bent, while the rather more balanced view of Muslim ideology and its implications, which belongs to the mainstream of the political sciences, has been ignored. Hence the extremely narrow framing of the narrative as religious discrimination rooted in race, rather than anti-Muslim acts sitting in a western, liberal, rights-based, pluralistic national framework.
Missing are the thinkers of contemporary Islam: Ali Allawi, Bassam Tibi, Abdullahi An-Na’im, Reza Aslan, Olivier Roy, Gilles Keppel and even the problematic Tariq Ramadan. The few with dissenting voices who make it into the analysis, such as Rumy Hasan, are sadly dismissed. I should say that I have had the privilege of discussing these issues over many years with almost all of those I have mentioned. Instead we have Tahir Abbas describing the various typologies of Islamophobia so widely that it could encompass most people in this country: alongside hate crime we have failed multiculturalism discourses, ideology where the political right and left are hostile to Muslims, and organisations that are susceptible to Islamophobic groupthink. Intellectuals are included, as these influential right and left-leaning thinkers are in denial, according to him. The media gets it in the neck, as noble Lords would expect, while neoliberalism, which is an economic concept, is thrown in for blame too. Finally, in this net are other religions: so Christians, Jews, Hindus and others are hostile, he claims, to Muslim minorities. Moreover, to him Islamophobia is not just “an individual matter” but,
“part and parcel of a wider social, historical, political and cultural discourse that continues to evolve and grow”.
This, for him, leads to,
“an ecosystem in which anti-Muslim racism festers and manifests itself”.
The problem with indulging in a sweeping critique of all around you is that it trivialises what is undoubtedly a serious and growing problem that should concern us all. By portraying it as a deep-seated, racially motivated, institutionalised attempt to “keep Muslims down”, it risks dividing the very community it seeks to protect.
I have discussed the report with several people who are expert in this area and we share a dismay that the tangible problems relating to discrimination, respect and hatred have been subsumed into a well-intentioned but misguided cry for protection from intangibles such as culture and society. I accept that culture wars can be destructive but I also recognise that contestation is a necessary element of rubbing along together in a diverse society, and that we cannot legislate for human nature or indeed for prejudice where it is nebulous and subtle or “normalised”, as the report claims.
The definition says:
“Islamophobia is rooted in racism and is a type of racism that targets expressions of Muslimness or perceived Muslimness”.
When you define a religion—in other words, a belief system—as an adjective and declare that this is rooted in race, which is biological, you ascribe to belief an immutability which cannot work. People live their lives on a spectrum of belief, at some points in a deeper sense and at others less so. Their visible and cultural identity will depend on where they are on this spectrum and may change over time. By basing Islamophobia on biological characteristics and saying that Muslims are a racially homogenous group, you are speaking to the plight of only a section of the BAME community. Where does that leave white European Muslims—Bosniaks, Kosovars and Albanians—as well as converts to Islam in Europe? One assumes that their protection would come under religious hate crime.
I could have gone on for rather longer but, in conclusion, Islamophobia is a problem for Muslim communities and needs to be monitored and counteracted. In my opinion, much of the response must come from existing criminal and civil law and guidance, rather than from the creation of new criminal definitions and categories. There is a role for government, and I commend the Government’s efforts in this regard, but it must also come from Muslims themselves, who need to actively use the law as they find it, individually and collectively where that is appropriate. What we should not do is live our lives in a narrative of victimhood, which holds us back from achieving our potential as active citizens of this country we all choose to call home.
Baroness Falkner of Margravine
I think I heard the noble Lord say that he experienced discussions with many Muslims across the country who have been discriminated against on the basis of religion. If that is what I heard, that is precisely the point: if they are discriminated against on the basis of religion, that is a hate crime and the law exists to cover it.
Estates of Deceased Persons (Forfeiture Rule and Law of Succession) Bill
Baroness Falkner of Margravine Excerpts(13 years, 4 months ago)
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Baroness Falkner of Margravine
My Lords, after three long months we are still divided on the single unresolved question of this Bill—whether the proposals here will impact negatively on the UK’s ability to pursue its national interest in negotiations in the EU and whether by asking the people of this country to sanction new changes in the EU we will garner greater popular support for those changes here at home. It is undoubtedly true that the Bill constitutes a significant change to the way we do business in Brussels. What is unclear, however, is whether it will strengthen our hand in negotiations in some cases, as our partners will know that the bar they have to cross over our red lines is significantly higher, or whether, because they know of the high bar, they will find other ways to circumvent our hurdles. Both may well happen, depending on the circumstances.
I wish to set out the reasons why we should oppose Amendment 35 while holding those noble Lords who have attached their names to it in great respect. Amendment 35 seeks to let the Bill expire at the end of this Parliament—that is, in 2015. In subsequent Parliaments, if the Government of the day wish, they can revive the Bill through affirmative resolution and it will sunset at the end of that subsequent Parliament, to be revived again in the next one, and so on. First and foremost, the amendment proposes a series of sunrises and sunsets ad infinitum. If the concern of noble Lords in tabling it is to reduce uncertainty about the UK’s negotiating position, I assure them that it would do the very opposite for those periods when the Bill has expired but has not yet been renewed. Moreover, it goes against the grain of building trust between the people and politicians as the question before every single general election will revolve around whether or not we are to revive the Bill. Rather than increasing trust and confidence in the ability of UK Ministers to bat for Britain, it will raise endless questions before elections about the composition of the team, the batting order and, indeed, about the implications of who might win the toss.
I turn to the period between sunset and sunrise—the hours of darkness, as we normally know them. It might take more than three months to revive the Bill. If we take the previous Parliament as an example, I ask noble Lords to imagine that the Act is already in place and this amendment forms part of it. The previous Parliament was dissolved on 12 April 2010, the general election occurred on 6 May and the Queen’s Speech was on 25 May. Subsection (4) of the amendment states that the revival must take the form of a statutory instrument using affirmative resolution with approval in both Houses of Parliament. Last year the Joint Committee on Statutory Instruments first sat after the election on 23 June and would then have considered orders, including, let us imagine, those to renew this Act, laid them on the Order Paper, and approval Motions would have been timetabled in both Houses, would possibly have been defeated, and then possibly resubmitted.
Lest noble Lords lose the drift of my remarks, I am trying to illustrate that between the sunset and sunrise, if the Bill had been in place, a period of potentially three months or more would have passed. If the Summer Recess had come in the way, the period would have been possibly five or six months. The Minister in Brussels who would supposedly have been negotiating on our behalf would effectively have been operating without the security of knowing the legal position back home on the requirements for the agreement.
I know that noble Lords who support the amendment would say that the fallback position during that period would have been the European Union (Amendment) Act 2008. However, what are our European partners meant to do—carry around several UK Acts of Parliament to see which one applies at a particular time of the electoral cycle? At the beginning of every Parliament, parliamentary time would need to be expended in reviving the Bill. It would make our negotiations in Brussels even more cumbersome, because during that period Ministers would be in a state of flux, not knowing whether they were to operate under one system or another.
Finally, I turn to the point made by the noble Lords, Lord Kerr and Lord Richard, and others, that the Bill is intended solely to influence future Parliaments. It is not so designed. While it is true that the coalition agreement does not envisage handing over powers and competences during this Parliament, the coalition agreement is not the law of the land today. It is this Bill when it becomes an Act of Parliament that will enshrine those provisions in law. I urge noble Lords to oppose the amendment.
Parliamentary Voting System and Constituencies Bill
Baroness Falkner of Margravine Excerpts(13 years, 9 months ago)
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Lord Foulkes of Cumnock
I am grateful to my noble friend. I call him that because I got a bit ratty with him the other day, and he is a good friend. He and I meet together—I cannot remember if he bought me a glass of wine or if I bought him one. I was just coming to the punchline and then I was going to sit down. David Brandt was standing there and I could see as I jumped out that he was furious about what was happening. I remembered what they are like in the Caribbean and how they are friendly, so I went straight up and gave him a big bear hug. He had to do the same and all the cameras were taking pictures. So it was that I solved the problems of the Caribbean by getting this warm welcome.
Baroness Falkner of Margravine
My Lords, I really wonder at this hour of the night whether the taxpayers of this country, who are paying for these facilities to be kept open, would wish to be entertained by the anecdotes of the noble Lord, Lord Foulkes. Does the House not believe that we need to get to the business of the House instead of being entertained in this manner because the noble Lord, Lord Foulkes, has been carousing in the bars of this Palace?
Lord Foulkes of Cumnock
We do welcome the noble Baroness, Lady Falkner, to the House, although she is a recent arrival.
Baroness Falkner of Margravine
May I suggest to the noble Lord that I have been here rather longer than him?
Lord Foulkes of Cumnock
Anything else you would like to say while you are at it?
Terrorist Asset-Freezing etc. Bill [HL]
Baroness Falkner of Margravine Excerpts(14 years, 1 month ago)
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Baroness Falkner of Margravine
My Lords, I add my voice to the chorus of those congratulating the Minister on having contemplated our views over the summer and having come up with these clauses. Before going into the substantive points that I want to make, I will touch on the technical point of amendments to amendments and hope that we will be able to revisit it. I went to the Table Office, or duty Clerk’s office, on Monday at 4.20 pm and was told that even on that day I was already too late. I received the letter from the Minister detailing his reasons for these amendments—it was very gratefully received and I cannot thank him enough for it—at 6.30 on Monday evening. For obvious reasons, it had not yet been placed in the Library, so there was absolutely no possibility of scrutinising the amendments with a view to doing anything about them.
On the test of reasonable suspicion, the Minister said in his opening remarks that we should not use the same level of safeguard across all legislation. That somewhat concerned me because, as other noble Lords have said, there is nevertheless a relationship with the control orders regime. My noble friend Lady Hamwee has referred to the Supreme Court’s rulings in the Ahmed case, where the noble and learned Lord, Lord Rodger, said that,
“the harsh reality is that mistakes in designating will inevitably occur and, when they do, the individuals who are wrongly designated will find their funds and assets frozen and their lives disrupted, without … having any realistic prospect of putting matters right”.
I accept that this will now apply only for a period of 30 days, but when your employer and all and sundry around the work that you do are told that your assets have been frozen on the basis of your having been a designated person under terrorism legislation, that has its implications for your future employment. It is not just that your assets are frozen for a period and you hope that you will be non-designated. It affects not only your family and friends but your future employment prospects, so it is perhaps more serious. The noble Lord, Lord Pannick, referred to the 30-day freezing as “inconvenient”. I suggest respectfully to him that it is potentially more than inconvenient.
I wonder whether the noble Lord can tell us why he chose 30 days for these interim orders rather than, perhaps, 45 days as I expect the Treasury’s civil servants or certainly the Home Office’s would have sought. Why did he not choose 14 days, or 31 days or 29? What is the magic cut-off whereby information will become available on the 30th day that was not available on the 29th? The Minister also said that there are other countries with similar systems. I wonder whether he could share with us the other countries that have such a low test, even for an interim order of 30 days in the first instance. It would be helpful to know whether they have similar systems to ours.
Baroness Falkner of Margravine
My Lords, it is the term “the real world” used by my noble friend Lord Carlile that provokes me to speak. He may well agree—academic pursuits and all that set aside—that because of my background, if for no other reason, I have some understanding of this particular real world and the people involved in it. The concern, particularly for me, is that an interim designation that is based on reasonable suspicion followed by such a broad inference of what kind of suspicion might lead to what kind of involvement is very wide indeed. We will catch an awful lot of people for no reason at all. I am talking about communities where large numbers of family members live together. Such communities are tight-knit and a lot of support is given to each other, often simply on the basis of familial, religious or community loyalty. The people in these communities, particularly the women, will, often in good faith, do something that is asked of them without seeing what it might lead to. The idea that they will be cognisant of and understand reasonable suspicion enough as a test and the level of involvement as another test and try not to commit those offences is asking rather a lot on frail grounds. Will the Minister reconsider this and the exhortations of my noble—and extremely knowledgeable—friend Lord Carlile that we need to be extremely careful in this regard?
Lord Sassoon
My Lords, let me attempt to deal with this. I certainly feel that I live in the real world in that I have to make such decisions regularly. One limb of the test that has not been stressed in this discussion but which is absolutely critical to it is that the legal test for freezing assets has the second limb that the Treasury must also conclude that a designation is necessary for public protection. That is the critical safeguard on how the power to freeze assets is used. There can be very fast-moving situations, as described by my noble friend Lord Carlile of Berriew, when the exact nature of each person’s role in a plot is not immediately clear. It would be a significant restriction on the regime’s ability to operate in the preventive way that is necessary for public protection if we were to exclude those who might be involved in the broader commissioning, facilitation and support of terrorist activity.
My noble friend instanced the case of people who may be sitting on money. It is essential that the definition is not restricted in the way that Amendments 4 and 8 propose if it is to be effective. As the plot is disrupted, the exact nature of people’s role will become increasingly clear. It will become clear who is a “bystander”, to use the word of my noble friend Lady Hamwee. I think that the two-stage framework that we will now have in place, combined with the requirement for Treasury Ministers to conclude that the designation is necessary for public protection, deals with the point.
Lord Davies of Oldham
My Lords, I shall speak also to the amendments grouped with Amendment 7, including Amendment 51, which is linked to it. I also note that our new Clause 10 is included; it is there in a most helpful frame from the Opposition towards the Government, and I hope that the response from the Minister will reflect that.
I shall address the question of Amendments 7 and 51 and why the official Opposition have tabled them. We seek to question the Government about the extent to which the Treasury will consider our relevant international and European commitments when making designations. Based on the submissions made on the draft Bill and the issues raised by the Constitution Select Committee, have the Government considered whether the proposed legal framework for designation adequately encompasses our international commitments? In particular, have they considered whether it is appropriate to assess a licence on humanitarian grounds prior to invoking the asset freezing attached to any designation? That it should be an offence in the interim period for a person to provide the necessities of life appears to be directly at odds with the United Kingdom’s international commitments under UNSCR 1452, which relate to exceptions being granted for individuals designated under the asset-freezing regime to meet basic humanitarian needs.
I realise that in the previous amendment we discussed aspects of this issue, but I seek greater clarification from the Government on this matter. Would it not be desirable instead to introduce this step near to the beginning of designation, before its effect is felt, to ensure that the Treasury has in fact considered the appropriateness of the licence in every circumstance? We have great sensitivities about this issue with regard to licences. We all recognise the difficulties while at the same asserting, as my noble friend has been concerned to do in his earlier contributions, how we share with the Government the prime focus of this legislation, which is to protect our community and our people from acts of terrorism. Of course we do not want to infringe the capacity for that at all, but, given our international obligations, we want to look at how much these factors factor into the position when the Treasury looks at a designation order.
Our amendment would provide maximum flexibility because it would not prevent the Treasury from deciding that a licence was not appropriate in individual circumstances or from deciding later that a licence should be granted, varied or revoked. This includes situations where a designated person or a third person affected by designation applies to the Treasury for relief under the licence scheme. These are probing amendments, and I hope that the Minister will respond to them as constructively as he can.
On Amendment 10, the Opposition are concerned to be even more helpful. We cannot see the explicit power in the Bill to grant a licence. The Bill as drafted certainly allows the Treasury to vary or revoke a licence at any time, but there does not seem to be explicit provision for the Treasury to grant a licence. There are phrases about what a licence may contain and what it means once a licence has been granted, but we cannot identify a specific power. The purpose of our amendment, therefore, is a new clause to enable the Treasury to grant a licence. This would give legal effect to a licence so that it and any decisions made in reference to it could not subsequently be challenged in court.
Such is my respect for Treasury lawyers—indeed for the Treasury in all its aspects, from past experience—that I have no doubt that my anxieties in this respect are completely groundless. I hope that the Minister will be able to reassure me. If not, we will seek to press our new clause.
Baroness Falkner of Margravine
My name is on Amendment 48 along with that of my noble friend Lady Hamwee. Before I speak to it, I should say that Amendments 7 and 10 of the noble Lord, Lord Davies of Oldham, seem entirely reasonable, but in the absence of knowing what United Nations Security Council Resolution 1452 refers to, I will restrict my arguments to Amendment 48.
The intention behind our amendment is to clarify Clause 13 in order to improve accountability and increase transparency so that officials, as well as the designated person, are in a position to know how they go about setting the test for reasonable living costs, which is what we refer to in our amendment. Reasonable living costs will inevitably be a matter of subjectivity in a family due to their requirements. In ascertaining what reasonable costs are, our concern is how the Treasury will make that assessment. More importantly, should the assessment made not be one that, from the perspective of the designated person, fulfils their reasonable living costs? As I said, it is all rather subjective. How will they be able to challenge that and get a variance to the original order? How long would it take for that to be achieved? Again, if it were to take a cumbersome length of time, that would be quite an onerous obligation on the designated person.
Lord Sassoon
My Lords, I fully appreciate that the intention of Amendments 12 and 13 is to give the Treasury flexibility when determining whether to publicise a designation. However, the Treasury believes that the automatic publication of designations on its website where the conditions of Clause 3(3) are not met is the most efficient and effective way of achieving the appropriate level of awareness and compliance with the asset freeze. It is the most effective method of informing the financial sector and other parties of their asset-freezing obligations, and thus of limiting the risk of the prohibitions—
Baroness Falkner of Margravine
I apologise to my noble friend for interrupting him in mid-flow, but I wanted to capture his previous sentence. As I understand it, there is nothing to prevent the Treasury from advertising on its website if we substitute the word “must” for “may”. The Treasury may still do so—and, I am sure my noble friend agrees, must do so—but we do not need the word “must” here.
Lord Sassoon
If my noble friend will permit me to go on, I will get to the answer to that challenge and explain why, in the round, the current construct works. We need the most effective method of informing the financial sector and other parties of their asset-freezing obligations to limit the risk of the prohibitions in the Bill being unwittingly breached in relation to funds being diverted for terrorist purposes. I accept that such an aim is not inconsistent with Amendments 12 and 13, but, if I may go on, let me complete what I was saying about our reasoning for believing that the Bill as it stands works well.
We recognise that, yes, publication would interfere with the listed person’s right to respect for their private life, but we believe that greater weight must be given to the public interest in ensuring that a designation is effective and that a designation will be most effective when generally publicised. Indeed, the Supreme Court has acknowledged the public interest in publicising designations generally. In January, the court ruled that the identity of four designated persons could be made public and that anonymity orders were justified only in an extreme case where there was significant risk to the designated persons or their families. There are no reports of any individual being harmed as a result of their asset freeze being publicised. Indeed, general publication is consistent with international best practice and the FATF guidance. The EU publishes on its website details of those persons who have been designated under the respective regimes. If the UK were to cease publicising designations generally in all cases other than when a restricted publication was justified under Clause 3(3), that would give rise to an approach that was inconsistent with those of international partners and international guidance and best practice.
For the reasons that I have set out, I hope that your Lordships will support maintaining the current drafting of the Bill and that my noble friend will withdraw Amendment 12.
Terrorist Asset-Freezing etc. Bill [HL]
Baroness Falkner of Margravine Excerpts(14 years, 1 month ago)
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Lord Pannick
Noble Lords are very familiar with the problems—the unfairness and the practical difficulties—that are caused by special advocate procedures. Clause 23(4) is acceptable only if the person concerned has a right to see at least the essence of the material that is relied on in the case against him, as the Appellate Committee decided in the control order context in the AF case.
The Minister said earlier that fairness depends on its context. I ask him to state clearly on behalf of the Government whether they accept that in this context—the freezing of assets—fairness requires that the individual concerned be personally told the essence of the case against him. I cannot see how it could possibly be fair to freeze a person’s assets on a permanent basis, causing all the disruption and damage to their personal life that the Supreme Court explained in the recent case, without that person being told at least the essence of the case against them and having a fair opportunity to answer it. The Appellate Committee in AF made it very clear that the special advocate procedure is wholly inadequate to ensure fairness in that respect, so I hope that the Minister will confirm to the Committee that the Government accept that the AF principles apply in this context.
Baroness Falkner of Margravine
I speak to this amendment on the basis that I was a member of the Joint Committee on Human Rights in the previous Session. I recall that my noble friend the Minister said in his opening remarks some hours ago that he did not want to draw an analogy in the provisions of the Bill with control orders. However, I respectfully suggest that if he looked at the 16th report in 2010 of the Joint Committee on Human Rights, on counterterrorism policy and human rights, which concerned the annual renewal of control orders legislation, he would find that significant aspects of the problems that will arise from Clause 23(4)—not least those of the AF case, referred to by the noble Lord, Lord Pannick—are covered in the report of the committee, which was excoriating. It is a sadness that the previous Government took no account of it whatever.
I do not want to take up too much time at this point in the evening, but let me briefly summarise for my noble friend the three issues that the report raised about special advocates. Those issues were:
“(1) Lack of access to independent expertise and evidence … (2) Ability to test Government objections to disclosure of closed case”,
and, finally,
“Limits on ability to communicate with controlled person”,
after seeing the closed material. The noble Lord, Lord Pannick, has first-hand experience of this, but let me also just read one paragraph from page 21 of that report, which I think expresses quite succinctly what part of the problem is. The report says:
“The special advocates have no means of gainsaying the Government’s assessment that disclosure would cause harm to the public interest, and Government assessments about what can and cannot be disclosed are effectively unchallengeable and almost always upheld by the court. Courts inevitably ‘accord great weight to views on matters of national security expressed by the agencies who are particularly charged with protecting national security’”.
As well as highlighting the deleterious effect of late disclosure, the report touches on international comparisons and finds that no other country uses special advocates in quite the way as we do by denying the defendant—in this case, the designated person—so many rights to which a defendant would normally be entitled under human rights law.
If the Minister is not prepared, at this hour of the night, to concede that there may be some really problematic issues in retaining subsection (4), perhaps he might consider returning to the issue on Report after further consideration.
The Archbishop of York
My Lords, under the new clause inserted before Clause 22 by Amendment 57, which we have just agreed, designated persons will be able to appeal and will know the case before them, whether their designation is interim or otherwise. Clause 23, “Review of decisions by the court: supplementary”, then details supplementary provisions on the reviewing of such cases. Therefore, I would have thought that, if I was designated under an interim order, under the new clause inserted before Clause 22 I would be able to appeal on the case before me. Otherwise, how would the case be heard? For me, that is the order in which things will happen.
If the new clause inserted by Amendment 57 had not been agreed, I would have agreed with the noble Lord, Lord Pannick, that the provisions would not make sense. However, now that the Government have inserted that new clause by Amendment 57, it seems to me that the rest now follows. I would agree with the position of the noble Baroness if we did not have the new clause, but I think that the new clause will allow appeal at all different stages. Therefore, the courts will be able to decide on those matters. Clause 23 just makes supplementary provisions on reviewing such matters.
Lord Wallace of Tankerness
As I believe I indicated when I started to address this matter, the starting point is that the individual should be given as much information as possible, subject to a legitimate public interest concern. That is our position. We would wish to give as much information as possible, subject to the important question of where there may be legitimate national security reasons for not going beyond a particular area. Clearly, a special advocate can argue that that is insufficient. One of the duties of a special advocate is perhaps to challenge the Treasury about whether more information should be made available. Indeed, as court cases show, the courts look at this matter very seriously. However, in terms of the amendment, we believe it is important that the role of the special advocate is in place; otherwise, the amount of protection available to the person who is the subject of a designation order may be reduced.
Baroness Falkner of Margravine
The forensic intervention of the noble Lord, Lord Pannick, has gone to the heart of the problem. If I understood my noble and learned friend correctly, I think he was saying that we will have a Green Paper. That will be some time next year, but in the mean time my noble friend Lord Macdonald is conducting a review of the counterterrorism and security regimes which will report some time this autumn. Yet, we are asked with these events anticipated to leave the Bill as it is. What will we get? Will we have bad legislation which will be overturned shortly as it will be deemed inappropriate if my noble friend Lord Macdonald finds that that is the case; or will it be overturned as a result of the consultation? As this Bill is such an improvement on the previous regime, would it not be sensible to take this improving zeal forward slightly and stick with our consistent respect on this side of the House for the rule of law in civil liberties?
Lord Wallace of Tankerness
I recognise and appreciate the zeal with which my noble friend makes her point. I reiterate that the disclosure process is designed to ensure that the maximum amount of material that can be disclosed to the individual without damaging the public interest should be disclosed. We heard today of the Law Lords judgment in the case of AF and Others that in certain cases, such as control order hearings, even when public interest concerns arise, the disclosure obligations were considerable. Because of the legitimate concerns that have been expressed, we want to look at this issue. We do not need to reiterate the fact that this legislation has to be on the statute book. I do not think that anyone has advocated that we should extend sunset clauses. It is common ground that we wish this legislation to be on the statute book by 31 December this year. That is not sufficient time to allow this important review to take place, but I can give an assurance that the matter is of such importance that we are looking at it. However, I emphasise that removing this subsection could lead to protection that would otherwise be available through special advocates not being available.
Lord Davidson of Glen Clova
My Lords, I shall speak to Amendments 78 and 79, which stand in my name and that of my noble friend Lord Davies of Oldham. Amendment 78 is self-explanatory. It seeks consolidation of the legislation in relation to terrorist asset-freezing regimes throughout the United Kingdom. I am conscious that time after time it is suggested that all manner of laws should be consolidated, but that is not always possible due to parliamentary time and so on. In this case, I bring to the Minister’s attention—although I am sure he already knows—that in Ahmed the Supreme Court has already suggested that consolidation may be useful in this area. That view was repeated by the Constitution Committee. I immediately accept that consolidation is outside the scope of the Bill and, as the noble and learned Lord, Lord Wallace, has indicated, it might produce delay that could not be countenanced, given the need for the Bill to be in place by the end of the year. Therefore, only this limited amendment is proposed. It provides that the independent reviewer should include recommendations about whether there should be consolidation of the legislation.
Amendment 79 is also self-explanatory. It requires the independent reviewer to publish expenses and allowances. This is our usual requirement of transparency in relation to this innovation of a new reviewer.
Baroness Falkner of Margravine
The report by the Constitution Committee, of which the noble Lord, Lord Pannick, and I are members, recommended that there should be consolidation of the legislation. I think there are two other Acts that relate to terrorist-asset freezing regimes. Will the Minister tell us his views on that consolidation?
Lord Sassoon
My Lords, I shall take these amendments in turn. As my noble friend said, Amendment 75 relates to the quarterly report that the Treasury lays before Parliament on the operation of the asset-freezing regime. The amendment specifies that the number of licences granted, varied and revoked should be included in the report. I assure the Committee that we are committed to ensuring the transparency and accountability of the asset-freezing regime, and that is why we have enshrined the practice of reporting to Parliament in the legislation. The report already provides information on many aspects of the operation of the regime, including the number of licences that have been granted each quarter, and I do not foresee any difficulties in providing the further information requested. Indeed, I am happy to commit to providing such information in the quarterly report under the powers proposed in the Bill. On that basis, I do not believe it is necessary to set out this detail in the legislation and I hope that my noble friend will withdraw the amendment.
Amendment 76 is a consequential amendment that relates to earlier amendments tabled by my noble friend, in particular those relating to Clause 2 that sought to provide the court with powers under Part 1. The amendment simply alters the language of Clause 24(1)(a) so that the quarterly report that the Treasury is required to prepare includes references to the exercise of the powers conferred on the Treasury and the court under Part 1. Having had the discussion on the amendments that seek to give the court various powers under Part 1, I am sure the Committee will agree that further discussion on this point now falls away and is no longer necessary. I therefore hope that my noble friend will not move this amendment.
Amendment 77 requires the Treasury to consult the Home Office about the appointment of an independent person to review the terrorist asset-freezing regime. I am not sure precisely what the intention is behind it and whether it is envisaged that the Treasury might ensure that the same person will be responsible for this review as the other reviews of the UK’s counterterrorism legislation. I can certainly see merit in such an arrangement, but there is also a need to ensure that the reviewer can give sufficient time and attention to this particular role.
The decision of who will review the asset-freezing regime has yet to be made. We will consider the appointment very carefully and in doing so will work closely with the Home Office. We will of course also consult other Whitehall departments where appropriate. We therefore broadly agree with the intention behind the amendment, but I hope that noble Lords will agree that it is not necessary to amend the legislation to reflect what I can assure the Committee will happen in practice.
Amendment 78 would require the independent reviewer to make recommendations in his or her first report on whether domestic asset-freezing legislation should be consolidated. It is a topic which the House discussed at some length at Second Reading. As is recognised by the Committee, we do not have the luxury of doing that within the scope of the present Bill.
The purpose of the independent review under this Bill is to report on the use of the powers included in the Bill. We believe it is important that the independent reviewer is free to examine any aspect of the asset-freezing regime and accordingly free to make any recommendations that he or she chooses. This may include recommendations on the desirability of consolidation of the asset-freezing regimes, but we believe that this is a decision that should be left to the reviewer. I hope therefore again that the Committee will agree that it is not necessary to amend the Bill and that the noble and learned Lord will not press his amendment.
Amendment 79 would require the Treasury to publish the expenses and allowances paid to the independent reviewer of the operation of the asset-freezing regime. We assume that the intention is to provide further transparency in respect of the costs associated with the independent review. We would be happy to publish this information if requested. Again, I hope that the Committee will agree that it is not necessary to amend the Bill to require the disclosure of this information, although, as I say, we will be happy to publish it. I hope therefore that the noble and learned Lord will be happy not to press his amendment.