Nationality and Borders Bill

Debate between Baroness Hamwee and Lord Pannick

Lords Hansard - Part 1 & Report stage
Monday 28th February 2022 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, from these Benches, I told the noble and learned Lord that we will be supporting him. He said that that was the right answer.

[Lord Pannick (CB)]

My Lords, I signed this amendment for all the reasons that were given by the noble and learned Lord and because it is of vital importance, especially at this time, that the legislature makes it clear that it intends and requires that the Government comply with their international obligations.

Immigration and Social Security Co-ordination (EU Withdrawal) Bill

Debate between Baroness Hamwee and Lord Pannick

Report stage & Report stage (Hansard): House of Lords & Report: 1st sitting & Report: 1st sitting: House of Lords
Wednesday 30th September 2020 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, I moved Amendments 4 and 5 in Committee; they are amendments to what the Public Law Project called the “breathtakingly wide” powers proposed to be given to the Secretary of State. It is ironic that when elsewhere negotiations are going on—or maybe not going on—regarding the sovereignty of the UK Parliament, we are being faced with exercising our sovereignty in order to pass it back to the Executive.

Amendment 4 would substitute in Clause 4, which is about regulation-making powers, the word “necessary” for “appropriate”. Amendment 5 would take out the ability for the Secretary of State to make regulations “in connection with” anything in Part 1. Taken together, these terms give the Executive huge latitude. I am glad that the names of the noble Lords, Lord Rosser, Lord Pannick and Lord Alton, have been added to my amendments. The clause would read, “such provision as the Secretary of State considers necessary in consequence of any provision” of Part 1.

The amendments follow the report of the Delegated Powers and Regulatory Reform Committee, a member of which, the noble Baroness, Lady Meacher, made a very balanced speech at the last stage of the Bill. She acknowledged, as I do, that consequential amendments through means of secondary legislation are generally needed—although, as she said, when they can be they are to be put in the Bill, with regulations then used for tidying up. But as the breadth and number of amendments in Committee showed—that is, amendments to the Bill —a huge number of topics can fairly be said to be connected with Part 1. Those topics were all approved by the clerks to the House as being within scope of the Bill.

The noble Lord, Lord Blencathra, chair of the DPRR Committee, said that he spoke in sorrow, rather than being vicious, about its reported criticisms or concerns about the clause. I think we are entitled to expect more of the Government—and this is not vicious, but many degrees up from sorrowful—than the defence that:

“There are clear constraints on the use of the power in Clause 4. It can be used only to make regulations that amend primary or secondary legislation ‘in consequence of, or in connection with’ Part 1”.


That is exactly what we object to. I had forgotten to comment on the offensive—and I say that deliberately—power to amend primary legislation through regulations. The Government’s reply to the committee’s report included the Minister again asking your Lordships to consider the illustrative draft of the regulations which, shortly before the last stage, had been circulated, and to

“take comfort that this power is specifically to deliver the end of free movement”.—[Official Report, 7/9/20; col. 641.]

That is also relied on in the long letter from the Home Office, which I received at lunchtime today—and I dare say that the timing was similar for other noble Lords. I have to confess that I have not been able to get my head around quite all of it.

The draft regulations referred to are, frankly, fiendishly complicated, and are causing a lot of anxiety both as to the extent they are understood—especially as to any omissions—and to the extent they are not understood. But whatever they are like, we have nothing that we can look to as an assurance that there will not be more regulations. The “lawyers”, I am told, are engaged in an exhaustive process of analysing this draft. It may bore others as much as it does me to say it, but whatever the intentions of this Government and this Minister today, that would not matter one jot tomorrow in terms of curbing the power in Clause 4. I beg to move.

[Lord Pannick (CB) [V]]

My Lords, I agree, as I usually do, with the noble Baroness, Lady Hamwee. She mentioned the report of the Delegated Powers and Regulatory Reform Committee. There was also a report on this subject by your Lordships’ Constitution Committee, of which I am a member. We issued a report on 2 September, our 11th report of the session. At paragraph 22, we said:

“We agree with the conclusions of the Delegated Powers and Regulatory Reform Committee about the powers in clause 4. A Henry VIII clause that is subject to such a permissive test as ‘appropriateness’, and which may be used to do anything ‘in connection with’ in relation to so broad and important an issue as free movement, is constitutionally unacceptable. Such vague and subjective language undermine fundamental elements of the rule of law.”


That is the view of your Lordships’ Constitution Committee, in a unanimous report from Members from around the House. I am very disappointed that the Government have been so far unwilling to engage with that advice—and certainly to accept it.

The Delegated Powers and Regulatory Reform Committee noted, in paragraphs 18 to 19 of its excellent report, the exceptional breadth of Clause 4(1). What it does is empower the Secretary of State not merely to make regulations “in consequence of” this legislation but “in connection with” this legislation. As the committee explained, that would confer on Ministers the power to make whatever regulations they think appropriate, provided they have some connection with the legislation, “however tenuous”. Given the exceptional breadth of the delegated powers in Clause 4, I also support Amendment 9 in the name of the noble Lord, Lord Rosser, which would impose a sunset clause on these powers.

I have one further point. This Bill is far from unique in seeking to confer excessively broad powers on Ministers. The Constitution Committee has repeatedly drawn attention to the need for effective limits on delegated legislation, to ensure ministerial accountability to Parliament. I am pleased that Members of the House of Commons, in the last few days, have begun to recognise the dangers of such legislation, not least because, when regulations are brought forward, they are unamendable. Your Lordships’ Constitution Committee has regularly made this point in reports over the last few years. The unacceptable breadth of provisions such as Clause 4 in the Bill is, I regret to say, typical of a Government who, too often, see Parliament as an inconvenience rather than the constitutional authority to which the Government are accountable.

Non-Contentious Probate (Fees) Order 2018

Debate between Baroness Hamwee and Lord Pannick

Tuesday 18th December 2018 Lords Chamber

[Lord Pannick (CB)]

My Lords, there are two aspects to this debate. There is the suggestion that these regulations are unconstitutional, which the noble Lord, Lord Marks, has argued, and there is the argument as to whether this is fair, the point made by the noble Baroness, Lady Browning, and the noble Lord, Lord Beecham.

When the noble Lord, Lord Marks, tells the House that something is of constitutional importance, I normally get excited and follow him eagerly into the Division Lobby—but I cannot do so today. These regulations are not ultra vires but plainly valid and within the scope of what the House approved in Section 180 of the Anti-social Behaviour, Crime and Policing Act 2014. The point of that provision was to confer power on the Lord Chancellor to charge fees which are higher than the cost of the services being provided.

Section 180(1) states the Lord Chancellor may,

“prescribe a fee of an amount which is intended to exceed the cost of anything in respect of which the fee is charged”.


It could not be clearer. The noble Lord, Lord Marks, then says that one part of the courts system cannot be used, even under that provision, to act as a cross-subsidy for another part of the courts system. My answer is look at Section 180(3), which says that the Lord Chancellor, when he sets these charges, must have regard to,

“the financial position of the courts and tribunals for which the Lord Chancellor is responsible”—


in the plural. It is general, not specific. And if there is any doubt about that, look at Section 180(6), which adds what the purpose of the fees must be. The fees,

“must be used to finance an efficient and effective system of courts and tribunals”.


The whole purpose of these provisions as I understand them is to confer a power on the Lord Chancellor to charge a fee higher than the cost of a service, in order precisely to provide funds that will enable the courts and tribunals system in general to be financed. There is no question of a lack of validity in these regulations.

It is then said that this is unfair; the noble Baroness made a powerful speech. But let us be realistic. Lawyers—and non-lawyers as well—have been complaining with increasing power and force in recent years that the legal system is in desperate need of additional resources. We need more money for legal aid, for improvements to the courts estate—which is in a disgraceful condition—and for improved judicial salaries to ensure that the high quality of our judiciary is retained. That money has to come from somewhere—and the choice is very simple.

Of course you could raise general taxation, but the same people about whom the noble Baroness, Lady Browning, is rightly concerned would equally complain if their taxes were raised. The money is needed; the legal system—the courts and tribunals which the Lord Chancellor has to protect—are in a desperate position. The money is desperately needed. I am no more enthusiastic about these regulations than other noble Lords, but it seems to me that, given the problems we face, these regulations do impose a charge which is reasonable in its content and is a reasonable means of raising some of the revenue required to fund the courts and tribunals system of this country.

[Baroness Hamwee]

The noble Lord has construed parts of Section 180; I think he has got it in front of him because he has been reading from it. My question about Section 180(3)(b) was addressed to the Minister, but the House respects the noble Lord and I wonder whether he has views about the Lord Chancellor having to have regard to the competitiveness of the legal services market in this situation.

[Lord Pannick]

I am grateful to the noble Baroness for her observation. My answer to the noble Baroness is that, yes, the Lord Chancellor is obliged to have regard to,

“the competitiveness of the legal services market”,


but I understand that to apply only in a context where there is a competitive market. Of course, in many contexts there is. But, like the noble Baroness, I do not understand there to be a competitive market for probate, and in my judgment that provision does not require the Lord Chancellor to have regard to a factor which is simply not relevant to the topic we are discussing.

Investigatory Powers Bill

Debate between Baroness Hamwee and Lord Pannick

3rd reading (Hansard): House of Lords
Monday 31st October 2016 Lords Chamber

[Lord Pannick (CB)]

My Lords, when the Bill came to this House, legal professional privilege—that is, the right of members of the public to seek and obtain confidential legal advice—was not adequately protected. The Minister and the Bill team have listened to the concerns expressed by the Bar Council, the Law Society and noble Lords on all sides of the House. The Minister has held a number of meetings; he has looked anxiously at these issues with the Bill team and has responded on Report and again today. I am very grateful to him.

[Baroness Hamwee (LD)]

My Lords, I moved amendments at the last stage. Having listened today to the plaudits given to Members of your Lordships’ House and the other place for the constructive way the Bill has been taken forward from when it was first a glimmer in the Government’s eye, I want to add plaudits for the efforts made outside the Palace of Westminster. The noble Lord, Lord Pannick, referred to the Bar Council—even if not quite everything it wanted has been agreed to—and to the Law Society, whose work on behalf not of lawyers but their clients has been invaluable in this process. It has been heartening to take part in this process, given the outcome, and to see how seriously and carefully the Government and members of the Bill team, for whom I know this has proved something of an intellectual challenge, have dealt with it. We are grateful to the Government.

Investigatory Powers Bill

Debate between Baroness Hamwee and Lord Pannick

Wednesday 13th July 2016 Lords Chamber

[Lord Pannick]

I take the noble and learned Lord’s point that “theoretical” is perhaps the wrong word to use and that “speculative” may be more appropriate. I wonder whether he could answer the question I posed earlier. Given that these powers have been available since 2000, can he tell the Committee whether the authorities have ever used them or whether we are talking in abstract terms about something that may have been required in the past? If it has not been used in the past 16 years, it is speculative.

[Baroness Hamwee]

My Lords, before the Minister responds to that, it seems that he would be in a better position to answer the question than the noble Lord, Lord Pannick, because I cannot see how he could give an example without someone having breached client confidentiality along the way.

Counter-Terrorism and Security Bill

Debate between Baroness Hamwee and Lord Pannick

Wednesday 28th January 2015 Lords Chamber

[Lord Pannick]

I am very grateful to the noble Lord. That is extremely helpful. Of course I have no intention of pressing the amendment. I look forward to hearing what he says next week on Report. I ask him to reflect not only on the recommendation of the Joint Committee that the remit of the independent reviewer should be expanded but also, as the Minister mentioned, the other part of the Joint Committee recommendation—paragraph 7.8 of their report—that the Government should make available to the independent reviewer resources necessary to perform his task effectively. In particular, David Anderson has explained that it would help considerably if he were assisted by a security-cleared junior counsel. That seems a very good idea to me. I do not think that the provision of such assistance would need statutory authority, but I hope that the Minister can reflect on that. Other noble Lords may wish to intervene in relation to this debate.

[Baroness Hamwee]

My Lords, I am glad to hear what the Minister has said. Reference has been made to the Work Programme. My amendment extended beyond the remit to the question of the frequency of reporting, which is a point that the current independent reviewer raised. Less frequent reporting on some matters will free up time to focus on others, responding of course to the current situation. There is also the question of specific statutory powers for access to classified information and to gather information. He has said that he has not had a problem but that he feels that it would be appropriate for the matter to be dealt with in statute. I wanted to ask that those points be among those that the Government are considering and, like others, I look forward to seeing the amendment on Report.

Counter-Terrorism and Security Bill

Debate between Baroness Hamwee and Lord Pannick

Tuesday 20th January 2015 Lords Chamber

[Baroness Hamwee]

My noble friend Lord Carlile has already referred to the fact that the independent reviewer can, does and did look at far more than is spelled out in statute. My inclination would be to spell that out, but to spell out that the independent reviewer’s powers extend to all terrorism legislation. I have half a clause drafted to that effect for later in Committee stage. That does not mean to say, as these amendments suggest, that that should necessarily be annual. It may need to be done more than annually. Some legislation—I think it is the asset-freezing legislation—requires quarterly reports. As time goes on, subject to the eventual decision about a sunset clause, it may be not so necessary to report as frequently. Perhaps more importantly, I would prefer that a report was not subject to commissioning by the Home Secretary. A future Home Secretary might decide not to commission a report, and we can all see where that might go.

This is an important issue. I am glad that it has been raised, and it has been covered quite substantially already this afternoon. I am not convinced that this is quite the way to go about it. We need to look at the comments made by David Anderson on the scope of the role and the balance between its constituent parts, and not pick bits off in individual parts of the Bill.

[Lord Pannick]

My Lords, I agree with the noble Baroness, Lady Hamwee: these amendments raise a very important subject. For my part, I agree with paragraph 7.8 of the report from the Joint Committee on Human Rights that it is absolutely essential that the independent reviewer’s remit is extended to cover all terrorism legislation. I would be quite content to leave it to the independent reviewer to decide when it is appropriate to publish reports. It seems entirely unnecessary and inappropriate to require reports to be published annually.

Crime and Courts Bill [HL]

Debate between Baroness Hamwee and Lord Pannick

Monday 2nd July 2012 Lords Chamber

[Lord Thomas of Gresford]

My Lords, I support my noble friend in the amendment that is also in my name. She referred to people using television for their own purposes. There has been an example of that recently in Norway, where your Lordships will recall that a defendant has made every use that he possibly could to carry his message to the public. Your Lordships may think that that is an example of the sort of thing that we wish to avoid.

The noble Baroness, Lady Kennedy of The Shaws, was somewhat caught today by the two back-to-back Statements and was due to preside over the important recognition of the anniversary of the 7/7 massacres. Consequently, she is not able to be here to promote her Amendment 147AA. She has no problem in relation to the higher courts and neither do I—there is no reason why the Court of Appeal or the Supreme Court should fear exposure to the cameras—but she is concerned, and I share her concern to a considerable degree, that the sentencing remarks can possibly lead to problems, as my noble friend Lady Hamwee has just pointed out.

I have no doubt that sentencing remarks would be used only in high-profile cases with salacious details or where celebrities were involved. It would not be long before there was pressure, when sentencing remarks were made, for the camera to show the face of the defendant as he received his sentence or, even worse, the faces of the victim or their families at that critical moment about which I spoke at Second Reading. I am very concerned about that. We must avoid the business of the court being made entertainment for people. Criminal court is a very serious matter and the parameters must be considerably restrained. I support the amendment in my name and that of the noble Baroness, Lady Kennedy.

[Lord Pannick]

My Lords, I welcome Clause 22. Broadcasting will enhance the public understanding of our justice system, which in general works efficiently and fairly. It is important that members of the public are able to see that this is so through modern means of communication. As is often said, justice should be seen to be done.

There is also, of course, the possibility that allowing the cameras in may illuminate areas of court proceedings that are in need of reform. I entirely agree with what has already been said about the fundamental undesirability of cameras showing the evidence or, as the noble Lord, Lord Thomas of Gresford, said, the reactions of witnesses or victims at any stage of the court proceedings. I am sure that the Minister’s intention is to have regulations that would prohibit any of that, and I look forward to hearing what he says about why that matter should not be addressed in primary legislation.

I am a bit concerned by the final words of Amendment 147ZC, moved by the noble Lord, Lord Beecham, which say that filming would not be permitted if it would cause “undue prejudice” to any person involved in the proceedings. I can well understand that a defendant in a notorious case, in which there was a very strong argument for broadcasting the sentencing remarks, may say that to single him out for broadcasting would indeed involve prejudice. It would be most undesirable if people were able to present such an argument.

I am very concerned about Amendment 147A in the names of the noble Lord, Lord Thomas of Gresford, and the noble Baroness, Lady Hamwee. As I understand their amendment, it would prohibit the broadcasting of any part of the argument in, for example, the divisional court or the Court of Appeal, despite the fact that the issues raised may be of considerable public importance. If that is the noble Lords’ intention, that seems highly undesirable.

[Baroness Hamwee]

Perhaps I could make it clear: in this amendment we aimed to set out what we understand the Government’s current intentions to be.

[Lord Pannick]

I am grateful to the noble Baroness. I would hope that the Government would allow, at the discretion of the judge, the broadcasting of the arguments in the divisional court and in the Court of Appeal—cases, of course, where there are no witnesses. There is no evidence; these are matters of law. Some of them—one could easily give examples—are matters of fundamental public importance. If, as is the case, the whole of the proceedings in our Supreme Court can be broadcast, including the arguments that are being addressed, it would seem highly desirable that the broadcasters should be allowed, at the discretion of the judge, to broadcast the arguments in the lower courts.

The noble Baroness, Lady Hamwee, expressed a number of concerns about broadcasting. I am sure the noble Baroness is right that the danger is that broadcasters may be looking at the most sensational cases, and will broadcast snippets of the proceedings and may sensationalise matters. However, that is already the case in relation to print journalism and I see no reason at all why Parliament should be more concerned to regulate the content of what is communicated to the public through broadcasting than through print journalism.

I also have to say, as someone who has appeared in a number of cases in the European Court of Human Rights and the Supreme Court that have been broadcast, that her fears that counsel will play to the gallery are unfounded. I am not aware of any evidence that, once the case gets started and the submissions are being made, those who are presenting the arguments do other than focus on persuading the court. Indeed, were they to do otherwise and present themselves as actors with a view to impressing a wider audience, they would undoubtedly soon suffer the unemployment that is endemic in the acting profession. They are also regulated by the Bar Council.

The noble Lord, Lord Thomas of Gresford, expressed understandable concern that there should be no risk in this country of any broadcast of the equivalent of the recent conduct of the Norwegian defendant. I suggest to noble Lords that a discretion for the trial judge would prevent that. In any event, witnesses, victims and defendants could not be broadcast.

We should welcome Clause 22. Many of the concerns that have been expressed, I submit, are unfounded, and I hope the Government will allow broadcasting at the discretion of the trial judge—certainly of sentencing remarks and judgments in the Court of Appeal but also, I would hope, of judgments in the lower courts such as the Divisional Court and the High Court generally, and arguments in the courts below the Supreme Court.

Terrorism Prevention and Investigation Measures Bill

Debate between Baroness Hamwee and Lord Pannick

Tuesday 1st November 2011 Lords Chamber

[Baroness Hamwee]

My Lords, the noble Lord, Lord Hunt, says that relocation has been very useful in disrupting terrorism activity. The problem I have is that I do not know and I do not know whether he knows. He may well believe that that is the case, but I am not sure that any of us really knows. That has been a difficulty throughout the debate on the Bill.

I have a couple of points on the drafting of Amendment 61. It seems to me that it slightly muddles accountability. Is it not for the Home Secretary to take the decision on the resources and to take responsibility for what resources are applied, rather than it being an arrangement with the terrorism co-ordinator who, I take it, is the co-ordinator within the Metropolitan Police? I am slightly concerned that the amendment dilutes the responsibility of the Secretary of State. The terrorism co-ordinator of course has a role in this. We have all heard senior police officers say that they will do what they can within the resources provided to them, and they are very cautious about saying that they have enough resources.

My second point is to ask whether it is possible to identify precisely the right resources and deploy them. That could well be something of a moving feast; the resources required will vary from time to time. I of course understand the concerns that lie behind the noble Lord’s amendment, but I am not sure whether it is a practical way of satisfying us all and, indeed, the public.

[Lord Pannick]

My Lords, I am assuming that the Government are satisfied that the available resources are sufficient to maintain security in this country. If that is not the case, it would be very troubling indeed.

Terrorism Prevention and Investigation Measures Bill

Debate between Baroness Hamwee and Lord Pannick

Wednesday 19th October 2011 Lords Chamber

[Lord Pannick]

We will hear from the Minister in relation to that in a moment. I am satisfied that a sensible and fair way of dealing with what is a very difficult issue, because of the primacy of national security and the particularly intrusive nature of a relocation power, is for the Government to satisfy themselves, as I assume they have done, that relocation powers are not needed. However, given the importance of this power, they recognise that it is sensible to have reserve powers available which, God forbid they are ever needed, can be brought into force. I support the Government on this.

[Baroness Hamwee]

My Lords, I, too, support the Government and I am very much with the noble Lord, Lord Pannick. If my noble friend Lord Carlile succeeds in getting answers to his questions about evidence, I shall consider that there is a huge amount of favouritism going on. That is exactly the sort of thing that we have all asked for on many occasions, but inevitably we are not satisfied because we know that advice to the Government is advice to the Government, and we cannot read their heart as we are being asked to do.

I do not quite understand the distinction between politics and security. For all the reasons we have talked about and will continue to talk about, it is a much more nuanced and complicated—there is probably a geometric term for it that I do not know—picture than a simple polarisation as regards the impact of particular measures. Of course surveillance is going to be costly, but another balance that one must come to is where one puts one’s efforts and spends one’s money.

Identity Documents Bill

Debate between Baroness Hamwee and Lord Pannick

Tuesday 21st December 2010 Lords Chamber

[Lord Pannick]

I have, of course, enormous respect for the knowledge and judgment of the noble Lord, Lord Campbell of Alloway, but on this occasion, with respect, I do not agree with his opinion. It is part of the law of this country that the Minister, like all other Ministers, has a positive duty under the Human Rights Act to confirm to this House and the other place that the legislation that the Government are bringing forward is consistent with the European Convention on Human Rights. That is the law of this country. I respectfully ask the noble Baroness to tell this House, consistent with her duty under the law of this land, why she is confident—if she is—that this proposal is consistent with our international obligations.

[Baroness Hamwee]

On all previous occasions when we discussed this matter, I was honest with the House that I had some difficulty with it, but is what was the substantive issue then in fact the issue for today? I have been waiting to hear some comment on the Commons reason for disagreeing with this House’s amendment. The noble Lord, Lord Howarth of Newport, addressed the issue of financial privilege and suggested that we should not accept it. However—and this is an entirely personal view—I think that this may well be an issue that goes to heart of the relationship between the two Houses. I have grave doubts as to whether we should tackle that convention on the back of this Bill. This is an important, stand-alone issue, but it is not one that we should seek to overturn in this manner.

Terrorist Asset-Freezing etc. Bill [HL]

Debate between Baroness Hamwee and Lord Pannick

Monday 1st November 2010 Lords Chamber

[Lord Pannick]

My Lords, to achieve its purpose this Bill needs to confer powers in relation both to persons and to assets within the jurisdiction. I understood the Minister to assure the House on Report that the Bill, as currently drafted, covers both categories of case. I do not understand that to involve extra-territorial effect, although the descriptive term may be less significant than the substance. My concern is where we find in the Bill a clear statement to the effect that a person may be the subject of a designation order because he has assets in this country even though he otherwise has no connection with this country. I hope the Government will give further thought to that matter as the Bill proceeds through the other place.

[Baroness Hamwee]

My Lords, I cannot bring the same academic knowledge to this debate as the noble and learned Lord and the noble Lord, Lord Pannick, but I start with the question of what this Bill aims to achieve and what it is directed at. As I understand it, it deals with assets that are in the UK. For me, other questions flow from that. I agree with the noble Lord, Lord Pannick, that if there is a query over the scope of the Bill, it should be clarified. One would hope not to have an argument such as this repeated either in the other place or, indeed, in court. However, having been involved with this Bill and its predecessor, I do not have the anxieties that have been expressed this afternoon.

Terrorist Asset-Freezing etc. Bill [HL]

Debate between Baroness Hamwee and Lord Pannick

Monday 25th October 2010 Lords Chamber

[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 to noble Lords that it would be highly desirable that the purpose of this interim designation power be specified in the Bill.

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.

--- Later in debate ---

[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.

Amendment 20 would require of the Treasury, if requested by a designated person or another person—I have put that in as an olive branch to the Treasury—that,

“a licence shall, if requested, be granted to enable the designated person or any other affected person to have access to funds or economic resources sufficient for the reasonable living costs”,

both of the person concerned and of any dependants. Subsistence costs are not much to ask for, and they can be conditional. Clause 17(3)(a) provides that any licence can have conditions attached. Amendment 19 would require that an application,

“shall be dealt with by the Treasury as a matter of urgency”,

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.

Terrorist Asset-Freezing etc. Bill [HL]

Debate between Baroness Hamwee and Lord Pannick

Wednesday 6th October 2010 Lords Chamber

[Baroness Hamwee]

My Lords, at last we come to some single amendments. Amendment 45 would provide that the prohibitions that we have just been discussing are not contravened by the provision or funding of the provision of legal representation, advice or other legal services for the benefit of the designated person.

I understand that the practice—again, there is a distinction between practice and legislation—is that a general licence is granted by the Treasury for legal aid. One must put in brackets that we know what is happening to the provision of legal aid more widely; it has been becoming less and less available. With this amendment, I am not trying to find a loophole for the prohibitions to be avoided—perhaps evaded would be the right word. It has been put to me in discussion with Ministers and the Bill team—I have left it rather late, but I should thank them for the time that they have spent discussing the Bill with me before today—that money might go to a dodgy lawyer who would pass it on to a designated person. Obviously, that would be an offence.

It goes against every fibre of both my being and my legal training to see anything that might deny access to legal advice and representation—in other words, access to justice. I wait to hear whether there are loopholes in the amendment, but I think that the principle is important. I beg to move.

[Lord Pannick]

My Lords, I am very sympathetic to the amendment for two reasons. First, it seems to me right and proper to allow a person to use as much of their financial resources as they see fit to pay for legal advice and assistance. To impose restrictions on them in that respect is simply to interfere with the administration of justice. Secondly, I cannot see that the Treasury has any interest whatever in preventing a person using their own funds to pay for legal advice and assistance. The Treasury’s only legitimate interest is in preventing the use of the funds for the purposes of terrorism. If the money is being paid to someone who is regulated by the Law Society or the Bar Council—I appreciate that the amendment may need some tinkering to cover those points—I cannot see that the Treasury can have any legitimate concern as to the improper use of the money for purposes associated with terrorism. If the Minister takes a different view and there is evidence to suggest that persons who are regulated by the Law Society or the Bar Council are or may be acting improperly in this respect, please will he tell the House and explain what steps the Government are taking to draw such concerns to the attention of the proper regulatory authorities?

[Lord Wallace of Tankerness]

My Lords, this is an important amendment, and one that is somewhat foreshadowed by the comments of the most reverend Primate the Archbishop of York when we debated an earlier set of amendments. The effect of the amendment would be that any payments the purpose of which was to pay legal expenses of a designated person would not require a licence. As a result, the Treasury would have no oversight of such payments.

It is important to emphasise that that would include payments not just directly to solicitors and law firms but to designated persons themselves if the purpose were to pay legal expenses. This could include payments made by one designated person to another if the first designated person had access to free funds.

I understand the legitimate concerns that have prompted the amendment. I emphasise without equivocation that a designated person must be in a position at the earliest possible opportunity to challenge a designation or any other related decision made by the Treasury under the Bill, but I believe that the existing licensing scheme meets this requirement. Licences already provide a controlled mechanism whereby designated persons can be provided with funds to pay for legal representation with adequate conditions in place to control the risk of funds being diverted to support terrorism. A designated person or any other affected party may also request a licence at any time.

Moreover, the Treasury has issued a general licence that applies to all designated persons to enable eligible legal aid payments to be made. I give the assurance that that will be replicated once the Bill is enacted. That general licence ensures that a designated person will have immediate access to legal representation where they qualify for legal aid. Any other party may request a licence at any time to pay for a designated person's legal expenses. I emphasise that the general presumption is that where a licence is requested to pay for legal costs, it will be granted.

The Government believe that this is the proper and effective way to deal with the provision of funds in relation to legal services provided both by the state, under the legal aid system, and by other persons. It does not and is not intended to impede a designated person's ability to access justice, which we think is very important, but it also ensures that the Treasury can maintain oversight of a designated person's expenditure. I hope that, against that background and with that reassurance, the noble Baroness will be willing to withdraw her amendment.

Terrorist Asset-Freezing etc. Bill [HL]

Debate between Baroness Hamwee and Lord Pannick

Tuesday 27th July 2010 Lords Chamber

[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”.