Terrorist Asset-Freezing etc. Bill [HL]

Debate between Baroness Falkner of Margravine and Lord Sentamu

Wednesday 6th October 2010 Lords Chamber

[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.