Terrorist Asset-Freezing etc. Bill [HL]

Baroness Hamwee Excerpts

Tuesday 27th July 2010 Lords Chamber

[Baroness Hamwee]

My Lords, as has been said, it is entirely obvious that one should seek to freeze the assets of terrorists to prevent them accessing funds for the purposes of terrorism; but that, as both noble Lords who have spoken have indicated, does not describe the Bill in full. I appreciate that it was the previous regime, operated in a rather different way from that of the last year or two, that was mauled by the Supreme Court in Ahmed, but it is worth remembering some of the terms that were used, such as “draconian”, “devastating”, “drastic”, “dire” and—not alliteratively—“oppressive”.

Today and during the passage of the Bill we look for assurance that it is not in danger of being found not to be human rights-compliant, not only because human rights and civil liberties are inherently important, but also because, if there is a successful challenge to the Bill, the banks will be open to claims, we will have expensive mechanisms that do not protect the public, and the people who will win—this point was made several times when we dealt with the interim Bill—will be the lawyers, while those designated and their families will suffer. I say to the noble and learned Lord, Lord Davidson, that “coalesced” or not, those behind the Minister will seek to be not just critical but constructively critical.

My first question, which again has been anticipated, is not “Why this?” but “Why now?”. We asked for pre-legislative scrutiny at the time of the temporary provisions Bill. The consultation that has taken place was welcome, but it is not the same. Although we are still dealing with protection against terrorism, the governmental and legislative contexts are different. The coalition Government have made it clear, as the Minister said, that they will be,

“strong in defence of freedom”,

and will introduce safeguards against the misuse of anti-terrorism legislation. The review that is being conducted by the Home Office is due to report in the autumn. I appreciate that some of these terms have wide meanings—I am not sure how long autumn will go on this year—but I hope that the Government will adapt the timetable for the Bill to take account of that review.

I understand the problem of the sunset clause in the existing legislation, but there must be ways of dealing with this in order to get the right outcome for this Bill co-ordinated with the work that is going on in the Home Office. For too many years there has been rivalry between Whitehall departments, and I hope that this is not a case of unnecessary demarcation. The Minister used the words “co-ordinated” and “aligned”. I would have liked to see a single review of asset freezing, but I hope that they will be as co-ordinated and aligned as possible. The remit of the counterterrorism review does not extend to this measure and I hope that the Government will not see themselves as committed to a Bill in these terms if the outcome of the counterterrorism review produces points that should be reflected and included.

The Joint Committee on Human Rights will not have its first meeting until the autumn, and I am sure that it will have comments to make on the Bill, as did the Constitution Committee in what I thought was a very helpful and balanced report. I, too, should like to see plans for the consolidation, rationalisation and, indeed, perhaps reform of everything that ranges over the statue book on terrorism, terrorist financing and asset-freezing. I do not think that the fragmented regime is entirely helpful.

I query whether the Treasury, as distinct from the Home Office, is the appropriate arm of the Executive to deal with these orders but, more fundamentally, I question orders being imposed by the Executive without any judicial input or evidential review. It would be possible, for example, to provide for the courts to deal with an urgent situation on an ex parte application by the Executive and then to take the matter over on an inter-partes basis. Having judicial input at the start would automatically provide a mechanism for appeal, which is also missing from the regime.

The reasonable grounds for suspicion are set at a very low threshold and we will need to be convinced that it needs to be so low. Proving to the court on a balance of probabilities that someone is, or has been, involved in terrorist activity—or, if we are stuck with “reasonable suspicion”, an objective test to so designate a person—would, again, deal with a number of concerns. In Committee, I think we will also want to understand how far in the past the terrorist involvement will need to have been to put someone in danger of having their assets frozen.

There is no connection between suspected involvement and an ability or intention to use assets for terrorist activity. An individual with limited means would have no scope for such use but nevertheless could, by definition, given the issues around benefits, be designated. Should not the Executive be required to show that the individual has access to sufficient funds so that use for terrorist purposes is a possibility—a risk, in other words—that the funds will be so used?

Reference has been made to judicial review. If there were a right of appeal instead of judicial review, that would not jeopardise the making of orders by the Executive. However, I am concerned that judicial review gives no opportunity to challenge the evidence on which a decision is made—not that the designee can be sure on what basis the Executive is basing its decision, given the closed material/special advocate procedures, which, in my view, are inherently incapable of delivering a fair hearing. Special advisers are not accountable and I am unpersuaded by the references that I have read to the Bar Council standards. It has never issued guidance, nor has it addressed the ethical issues, and indeed special advisers are not professionally accountable to those whom they represent.

Judicial review can test the legality—a matter of vires—but, in dealing with the reasonableness of a decision, it is only Wednesbury reasonableness, to use the shorthand. That is not the same as proportionality, which addresses the outcome as distinct from the boundaries to discretion. Nor am I persuaded that quarterly reporting and consideration by an independent reviewer are sufficient. They come after the event; they are not a replacement for an appeal. However, to be more positive, I welcome the provision now in the Bill that benefit payments to spouses and partners will not be caught. That, though, does not address the fundamental point of whether the regime is compatible with fundamental rights. We have a licensing regime, and one must question whether it is possible for that to be effective against somebody who is determined to outwit it.

Human rights were not the basis of the Ahmed case—only two justices thought that the regime would pass the human rights test if brought in as primary legislation. The others declined to deal with this, having decided against the Government on other grounds. We are all aware of the Al-Jedda case, which has gone to Strasbourg on appeal. If it reversed at the same time as this Bill is concluding its passage through Parliament, I am glad I shall not have to deal with that dilemma.

Restrictions imposed in the past have been severe. At the time of the interim Bill, I was shocked to learn that they extended to funding for legal advice and representation. The paper reporting on responses to the consultation stated that controls will remain on any state benefits being paid directly to the designated person. I wonder how one aligns this with the DWP expecting the person to look for work, but perhaps that is a different issue. However, there is a big impact, and a stigma, on the family as well as on the individual.

I appreciate the Government’s commitment to bring forward amendments in time for us to discuss them in Committee. Asset freezing is close to a control order by another name. Those orders are being reviewed, and so should the asset-freezing regime be as part of a single co-ordinated review. I hope that the Minister and the House understand that the points that I am making—and those that others will make—are suggestions of changes to the Bill and approaches to the issue which would make acceptable the necessary freezing of assets. In my view, the Bill has not quite got there.

[Lord Pannick]

My Lords, the Minister rightly emphasises that the threat from terrorism remains severe, and that asset freezing is an essential tool in combating terrorism. However, it is also vital that the measures enacted to deal with this serious problem comply with constitutional principles. It was the failure by the previous Government in that respect which led to the adverse Supreme Court judgment in February, leading to the temporary Bill and to this Bill. That history imposes an especial obligation on this House to scrutinise with especial care the proposals brought forward by the Government.

The Bill raises matters of constitutional concern, as stated in the report of the Constitution Committee, of which I am a member, and to which the Minister has already referred. The first matter of deep constitutional concern is that the Bill covers only some of the powers to freeze the assets of those suspected of terrorism. The Government have retained the separate al-Qaeda and Taliban asset-freezing regulations and have not brought those powers within the scope of this legislation. That is despite the fact that many people are designated under both types of order—that is the al-Qaeda order and this regime. It is particularly unfortunate that some powers remain under secondary legislation when they cannot be amended on a debate in this House or in the other place. There are also the separate asset-freezing powers under Part 2 of the Anti-terrorism, Crime and Security Act 2001 and under Schedule 7 to the Counter-Terrorism Act 2008. The Minister said in his introductory remarks, perhaps somewhat optimistically, that those other statutory provisions should not be confused with the provisions in the Bill. If I may respectfully say so, the Government's approach invites confusion from anyone other than a Supreme Court Justice when attempting to identify how the provisions fit together.

It is of course vital to freeze the assets of those who assist terrorism, but do we really need all these distinct powers? The answer given by the Minister in his opening remarks was to refer to the tight timetable that is consequent on the sunset clause in the temporary Bill. I am puzzled why it is not possible to address the question of drafting—it is a question of drafting—by Committee, which will be more than eight months after the Supreme Court judgment

The second point is the scope of the powers conferred by the Bill. Noble Lords will not dispute the need to enact powers to impose freezing orders against people who have been found to be involved in terrorism. It is of course right that those powers should also be available even if the state cannot prove such involvement. Noble Lords will therefore accept the need to confer such powers in relation to people whom the Minister believes, on reasonable grounds, to be involved in terrorism. The Bill goes much further than that. The Bill imposes those powers in relation to people merely because there are reasonable grounds for suspecting that they are involved in terrorism.

The noble and learned Lord, Lord Brown of Eaton-under-Heywood, said in his judgment in the Supreme Court at paragraph 199:

“To suspect something to be so is by no means to believe it to be so. It is to believe only that it may be so”.

I have difficulty understanding why it should be appropriate to confer those powers in relation to people whom the authorities do not believe, on reasonable grounds, to be involved in terrorism.

There is no international obligation to go this far, as the Supreme Court emphasised in its judgments. There is an issue of principle here, because to freeze a person's assets is a substantial restriction on their liberty. The noble Baroness, Lady Hamwee, has already referred to the comments in the Supreme Court judgments. The noble and learned Lord, Lord Hope, said that those restrictions,

“strike at the very heart of the individual’s basic right to live his own life as he chooses”.

He added that those who are subject to a freezing order are,

“effectively prisoners of the state”.

He pointed out that those powers have a devastating impact not just on the individual but on their spouse and their children.

The noble and learned Lord, Lord Brown, commented:

“The draconian nature of the regime imposed under these assets-freezing Orders can hardly be over-stated”.

I have now referred twice to the noble and learned Lord, Lord Brown. I should mention that he has a lifetime of experience of administrative law and of security issues, having served as Treasury Junior from 1979 to 1984. He sat as a judge for over 25 years. He was the president of the Security Service tribunal and the intelligence services tribunal, and he was the intelligence services commissioner from 2000 to 2006, so he knows what he is talking about.

The Minister’s response to this point in opening—why should these powers be conferred in relation to people in respect of whom there is no more than a suspicion?—was that it was thought appropriate to allow for intervention at an early stage. That fails to address the concern about the impact on a person in respect of whom it cannot even be said that there are reasonable grounds for believing that they are or have been involved in terrorism. Can the Minister also please explain why this Bill, in this respect, is drafted more widely than the relevant provisions of the Anti-terrorism, Crime and Security Act 2001 and the Counter-Terrorism Act 2008, both of which require reasonable belief and neither of which confers power merely by reference to reasonable suspicion?

My third point is to ask the Minister whether he would accept that these freezing orders can be valid as a matter of law only if the individual concerned is told sufficient of the case against him to enable him to have a fair opportunity to respond to the allegations. That was the test laid down by the Appellate Committee of this House in the AF case in relation to control orders. I suggest to the Minister that the same test must apply in relation to freezing orders. I should declare an interest in that I represented AF in the Appellate Committee in the control order case. We will, no doubt, return to these issues in Committee in the autumn, and I very much look forward to the debates. I hope and expect that this House will be as vigilant as the Supreme Court to ensure that constitutional principles are respected.

I have one other question for the Minister. There have been very few changes in the content of the Bill since the draft Bill was published in March, but there is one change of potentially great significance. The title to the Bill has been amended to add the word “etc.”. I was involved in a case in the Court of Appeal in 2007 when Lord Justice Sedley said in his judgment that the court had,

“spent two days hearing argument on the meaning of ‘is’ and ‘where’”,

so much can turn on tiny words. It would be of assistance to know what the Government mean and intend by “etc.”. Is it the intention that this Bill might be the legislative vehicle for bringing before this House and the other place reforms consequent on the current Home Office review of matters such as control orders and pre-trial detention for 28 days? I would be very grateful if the Minister could explain the Government's thinking on this matter.

[Baroness Hamwee]

My noble friend tells me that a couple of times I referred to “special advisers”; I did, of course, mean “special advocates”.