Terrorist Asset-Freezing etc. Bill [HL]
Debate between Baroness Hamwee and Lord Sassoon(14 years, 1 month ago)
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Lord Sassoon
My Lords, the Government’s intention behind this amendment is to clarify that the words “involved in” in the legal tests for interim and final designations do not mean something additional to the activities and conduct referred to in the definition of “terrorist activity”. In Committee, my noble friend Lady Hamwee indicated her concern that use of the term “involved in” could capture people whose conduct did not fall strictly within Clause 2(2) but who were simply associates of people whose conduct did fall within that clause or who were merely innocent bystanders. This was not the Government’s intention, nor do we think that it is the effect. However, by tabling this amendment to make it clear that “involvement in terrorist activity” means no more than the activities and conduct described in Clause 2(2), I hope to ensure that there can be no doubt or further confusion. I thank my noble friend for her intervention in Committee and hope that she and other noble Lords will be minded to support our amendment. I beg to move.
Baroness Hamwee
My Lords, I am extremely grateful to the Minister for this amendment. The Bill creates a number of offences, so I felt that it was important to be crystal clear about the provisions. In my view, the amendment achieves that. I thank my noble friend.
Terrorist Asset-Freezing etc. Bill [HL]
Debate between Baroness Hamwee and Lord Sassoon(14 years, 1 month ago)
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Lord Sassoon
One has to go back to the definition of terrorist activity in Clause 2(2). I cannot do more than draw the Committee's attention back to the definition there, which mentions,
“the commission, preparation or instigation of acts of terrorism … conduct that facilitates the commission, preparation or instigation of such acts, or that is intended to do so … conduct that gives support or assistance to persons who are known or believed by the person concerned to be involved in conduct falling within”,
the previous two paragraphs of the subsection.
It is necessarily drawn wide, but the linkages that are made are clear from the definition. All cases also have to be linked to what is necessary for public protection. I ask my noble friend to withdraw the amendment.
Baroness Hamwee
My Lords, I will not leave the Minister in suspense. In view of the point made by the noble Lord, Lord Pannick, I am minded to bring the term “involvement” back on Report in the hope that the Minister will have had an opportunity to consider the culpability issue and will perhaps be able to give us some more assurances on it.
When I moved this amendment, I acknowledged paragraph (b), and I hope I said, because it was what I wrote down, that I was reassured by it. I take that point very seriously and was by no means ignoring it. The boundaries of culpability, as the noble Lord, Lord Elystan-Morgan, described them, are very important. I will come back to this, but not in as extensive a fashion, and I know there are some problems with some of these amendments. I beg leave to withdraw the amendment.
Baroness Hamwee
I shall speak also to Amendment 13 and hope that discussion of the two amendments will take two or three minutes rather than 23. Noble Lords are accustomed to hearing debates about changing the term “may” to “must” in legislation. My amendments would change the term “must” to “may”. They are about notifying designation and about publicity. Clearly, the Treasury must tell the banks, which it does by way of the consolidated list, but I am concerned here, as I am in other parts of the Bill, with the stigma that is allied to designation, and the effect on the family.
The conditions in Clause 3(3) that allow the Treasury not to publicise the designation are very specific. I should like to give the Treasury some discretion, although I accept that it may not use it, to pause and take account of the wider concerns that I have expressed. The clause is important: the offence is dealt with later, but there is a serious point here and I shall be interested to hear what the Minister says about the Treasury's approach.
It was very helpful to hear him explain what lies under the tip of the iceberg, as he described it, when it comes across his desk; but I am sure that he will accept that legislation needs to give assurances both about the tip and about what is concealed under the surface of the sea, and that what the Treasury does as a matter of practice, when it is good, needs to be enshrined in legislation so that it cannot be varied without Parliament being aware. He will not have had the experience that other noble Lords have had of saying: “Yes, Minister, you’re fine, but what about your successors?”. I beg to move.
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—
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.
Baroness Hamwee
My Lords, I had not thought of the point about danger to the designated person and his family. Actually, I can see that that could be a serious concern.
I am still not persuaded that Amendments 12 and 13 would inhibit the Treasury acting as the Minister described. I am sure that this is not his intention, but his response seems almost to amount to a fear that the Treasury cannot be trusted to make a sensible decision. However, although I am not persuaded, I will not pursue the matter further so I beg leave to withdraw Amendment 12.
Baroness Hamwee
In speaking briefly to Amendments 24 and 28, I perhaps come from a different stance from that for the previous group of amendments.
In both Clause 4, “Duration of designation”, and Clause 5, “Variation or revocation of designation”, as currently drafted, the Treasury must,
“take such steps as they consider appropriate”,
to bring such matters to the attention of the persons who have already been informed of the designation. Amendments 24 and 28 would change “they consider appropriate” to “are necessary”. First, I simply want to understand why it is necessary for the Treasury to have the slight subjectivity—the discretion, if you like—that is allowed in the clauses as drafted. Secondly, I want to ask whether “appropriate” implies a degree of reasonableness. Could the Treasury take a completely off-the-wall view, or must it act reasonably in Clauses 4 and 5?
Lord Sassoon
Let me try to address my noble friend’s concerns about Clauses 4 and 5. As she said, Amendments 24 and 28 would remove the Treasury’s discretion to determine subjectively the steps that it considers appropriate and replace it with an obligation to take steps that are objectively necessary. Let me try to explain why the Government believe that the amendments are unnecessary.
In practice, the Treasury will consider what steps are objectively necessary. In determining the appropriate steps to be taken, the Treasury will be conscious that the determination should be objectively justifiable, as a decision not to take a step that would be objectively construed as being necessary would be subject to legal challenge on the basis of being unreasonable. The Treasury will in practice decide on a case-by-case basis the best way to notify persons that a designation has expired, been varied or been revoked, with full consideration being given to the particular circumstances of the case of the designated person and of any other relevant factors. In practice, designated persons will always—unless they cannot be traced because, for example, they have gone overseas—be notified in writing that their designation has expired or been revoked or varied. Details of the change will be notified to other persons in the same way as the original designation.
The Treasury’s duty to notify is underpinned by the requirement in Clause 37(3), which states:
“Where the Treasury do not have an address for the person, they must make arrangements for the notice to be given to the person at the first available opportunity”.
I absolutely agree that it is important that persons informed of a designation are also informed of its expiry, revocation or variation and that such information should be provided in the most appropriate way. However because of the way that, as I have described, that will happen in practice, I do not believe that Amendments 24 and 28 are required. I hope that noble Lords will agree that it is not necessary to amend the Bill in this respect.
On that basis, I hope that my noble friend will consider withdrawing Amendment 24.
Baroness Hamwee
My Lords, I will do more than consider it. I beg leave to withdraw Amendment 24.
Baroness Hamwee
My Lords, I shall speak also to Amendments 36, 37, 39, 40 and 43. Clause 6 creates an offence, so we must be very confident that that offence is on a proper basis. My amendments would change the words,
“or has reasonable cause to suspect”,
in the context of a person knowing or suspecting that certain information is to be treated as confidential, to “reasonably suspects”. The same point comes up in a number of places in the Bill. The two terms are obviously extremely close but “reasonable cause to suspect” is about the reason for the suspicion, whereas “reasonably suspects”—my alternative phrase—is about the suspicion itself. One needs to ask whether the suspicion is reasonable in the round, as distinct from merely whether it is reasonable to believe in whatever caused the suspicion. Indeed, with regard to the term in the Bill, “reasonable cause to suspect”, I might add the question: does the person have to have the suspicion or can he be guilty of an offence—I stress that this is why this issue is important—if he believes something that would lead a reasonable person to suspect although the person himself does not form the suspicion? If someone says “angels and pinpoints” I shall understand, but I think that there is an issue there.
Amendment 36, quite differently, would take out the reference to “any other enactment” in Clause 6(4)(c), where disclosure is permitted if it is necessary to give effect to a requirement under this part or under any other enactment. I have tabled this amendment in order to ask the Government to justify those words and to explain why it cannot be left to the “other enactment” to deal with the situation. I beg to move.
Lord Sassoon
I shall take Amendments 34 and 36 in turn. Amendment 34 would limit the effectiveness of the provisions concerned with protecting the confidentiality of information provided by the Treasury to certain persons in connection with a designation. It would mean that only those who know, as opposed to those who have reasonable cause to suspect, that information they possess is to be treated as confidential may commit an offence by disclosing it. This would weaken the protections afforded to confidential information and thus potentially adversely affect the designated person’s rights.
It is right that those who have reasonable cause to suspect that information they possess is to be treated as confidential should be subject to criminal sanctions if they disclose such information. If a person had reasonable cause so to suspect but claimed not to have any suspicion and went on to disclose the information, it could be said that the person ought to have held a suspicion, in which case such disclosure should be prohibited. The current drafting of the clause provides the greatest degree of protection to the confidentiality of the information that the Treasury has provided. This is a complex series of interlinkages but I hope that on the basis of that construction my noble friend will withdraw her amendment.
Amendment 36 would limit lawful disclosure to circumstances where disclosure was necessary to give effect to a requirement imposed under or by virtue of Part 1 of the Bill only and not any other enactment. The amendment would have the effect of prohibiting disclosures which are required to give effect to any requirements imposed by any other Acts of Parliament. This would, for example, prevent disclosures concerning money-laundering or terrorist financing being made to the Serious Organised Crime Agency under either the Proceeds of Crime Act 2002 or the Terrorism Act 2000 with the consequence that the person concerned would be in breach of the statutory requirements contained in another Act. Preventing such disclosures would of course have a serious impact on the UK’s operational effectiveness in fighting crime, and delaying such disclosures while authority to disclose was sought from the Treasury would have an adverse operational impact. Therefore, as with the other amendment, I hope that my noble friend will not press Amendment 36.
Baroness Hamwee
My Lords, I am grateful for that. I had to think very carefully about how to express the bulk of my amendments, and indeed I had to take care to read my notes accurately. Similarly, I think that I need to read the Minister’s reply carefully to ensure that I understand it. For the moment, I beg leave to withdraw the amendment.
Terrorist Asset-Freezing etc. Bill [HL]
Debate between Baroness Hamwee and Lord Sassoon(14 years, 1 month ago)
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Baroness Hamwee
This is another amendment for which I am obliged to Liberty and Justice. Clause 21(1) provides that,
“Nothing done under this Chapter is to be treated as a breach of any restriction imposed by statute or otherwise”.
My amendment would take that out because it seems to be a very broad power giving the Treasury considerable leeway to set on one side other statutory and common law provisions. There are exceptions in Clause 21(2) but only in relation to the Data Protection and the Regulation of Investigatory Powers Acts. I have two points. First, why do the Government consider that this exemption is necessary, particularly in such broad terms? Secondly, as a minimum it should not include a failure to act in accordance with the Human Rights Act. My noble and learned friend, who may also reply to this amendment, is a great fan of that legislation. He may be able to confirm that it is not possible to carve it out in this way or, indeed, in any way. However, I see that my other noble friend will reply to this amendment. I beg to move.
The Commercial Secretary to the Treasury (Lord Sassoon)
My Lords, as my noble friend has made clear, the suggestion behind the amendment is that subsection (1) of Clause 21 gives the Treasury a wide power to disseminate information. It is the intention of the amendment to limit that power. In fact, this provision applies to anyone giving information to the Treasury as well as to any information supplied by the Treasury. Therefore, the purpose of the provision is primarily to protect persons when they disclose information to the Treasury. For example, it protects a bank that has provided information about a customer to the Treasury in accordance with the requirement under the Bill from being subject to an action taken by the customer on the basis of a breach of confidence. I also note, as my noble friend does, that no disclosure under the Bill can be made in a way that contravenes the Data Protection Act. This is set out in Clause 21(2).
On the second point that my noble friend raises, the general wording of Clause 21(1) is not, as a matter of constitutional principle, capable of overriding any provision in the Human Rights Act. I trust that these points will be sufficient to reassure my noble friend that this clause is necessary and that the protections in place under Clause 21(2) meet the intention of her amendment. I hope that she will be able to withdraw it.
Baroness Hamwee
Indeed, my Lords, I am grateful and I beg leave to withdraw the amendment.
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.
Baroness Hamwee
My Lords, I am grateful to the Minister. With regard to Amendment 75, I think he said that I was seeking information about the number of licences. In my mind, I was going rather wider than that. I do not think that this is just a matter of number, but I am not sure whether I heard him correctly. He might want to come back on the content of licences as well as the number. That is what I was looking for.
The second amendment was consequential. I am not sure that it quite falls away given that we have progressed with regard to the court’s role by including appeals as well as judicial review. It would be quite perverse if the reviewer did not cover appeals and judicial reviews, so I do not think that I need to press that further.
The Minister asked whether I had in mind the appointment of the same person by the two departments for the different types of review. That was not what I was thinking of; rather it was the crossover of responsibilities between the Treasury and the Home Office as they are both involved in the same subject matter. However, he has given me the assurances I sought. I beg leave to withdraw the amendment.
Baroness Hamwee
I will be quick. Clause 28 provides for offences by company officers and uses a term that I have not seen before in legislation—that they “connive” with or in something. Connivance is a term one associates with PC Plod rather than with statute, and I wonder whether this is the first time it has been used in legislation. I understand what it means, and perhaps this is a rather frivolous amendment. If so, I apologise. However, it struck an odd note.
More seriously, Amendment 81 would change the trigger for the offence in subsection (1)(b) from “neglect” on the part of a company officer to “recklessness”, implying that the person knows the likely consequences of his action. A word or two in defence of “neglect” is what I am seeking, or, of course, agreement to the amendment. I beg to move.
Lord Sassoon
I am happy to confirm for my noble friend that the language in respect of both issues is in fact standard language in other legislation. On the question of “connivance”, the term is standard—it is used in Section 14 of the Bribery Act 2010, for example—so the Government believe that the clause should remain as drafted. If the Committee would like more explanation, I am happy to give it, but I can give an assurance that it is standard language.
Similarly, on Amendment 81, I should make the important point that again the language as it stands in the Bill is standard and follows the drafting in other pieces of legislation. Noble Lords may be familiar with Section 37 of the Health and Safety at Work etc. Act 1974 and Section 186 of the Licensing Act 2003. Again, while I would be happy to go through the reasoning behind the substantive clause as it stands, I hope my noble friend will be content with the reassurance that these are standard provisions, and that she will withdraw her amendment.