Parliamentary Voting System and Constituencies Bill

Debate between Lord Bach and Lord Lloyd of Berwick

Monday 13th December 2010 Lords Chamber

[Lord Lloyd of Berwick]

My Lords, I can be very brief, mainly because I have not so far taken any part in the issue which has been urged for so long and so very effectively by the noble Lord, Lord Ramsbotham. However, I have listened to the debate this afternoon, and it seems to me that by supporting the amendment we will be taking at least a step in complying with the judgment of the European Court of Human Rights which has been outstanding for so long. It may not be the best solution—I do not know whether it is or not—but, on the principle of half a loaf being better than no bread, I lend my support to the amendment.

[Lord Bach]

My Lords, for many years the law in this country has decreed that if you lose your liberty, you lose your right to vote. However, as we have heard, the European Court of Human Rights has ruled that this blanket ban on prisoners voting must be ended. My noble friend Lord Anderson is right: a large number of people in the United Kingdom do not agree with that ruling, which makes the issue a difficult one for politicians of all shapes and sizes. Nevertheless, when Labour were in government—I am delighted to see the noble Lord, Lord Henley, in his place as he and I used to agree on this subject just a few months ago—we accepted that we had a legal obligation to comply with the European court ruling, and that compliance would ultimately mean giving some prisoners the vote. Mindful of the need to take account of public opinion—that is a real issue here—in responding to the European court judgment, we undertook a consultation process aimed at identifying an acceptable solution to a difficult problem.

I praise the Liberal Democrats who were always keen, when in opposition, that the Labour Government should act more speedily on this issue than was the case. However, I recall that throughout our discussion on this issue—we debated it for some time in the previous Parliament—the Conservative Party urged us to stay as we were and not to get on with it. Indeed, the right honourable and learned gentleman who is now the Attorney-General said, when in opposition, that it would be “ludicrous” if prisoners got the vote. When I used to sit where the noble Lord, Lord McNally, does today, I was always relieved to have the support of the noble Lord, Lord Henley, when he was on the opposition Front Bench, and that of the noble Lord, Lord Tebbit, among others, against the proposal that prisoners should have the vote. Therefore, let us not have any criticism of us, as I am afraid the Lord Chancellor has been prone to do in the past week or so, saying that we should have legislated on this some time ago. I do not believe that the Conservative Party manifesto stated that prisoners should vote in the previous general election, but I am, of course, conscious that the other half or third, or whatever it is, of the coalition will respond today, and no doubt he will speak, as always, on behalf of the Government.

However, more seriously, it must be acknowledged on all sides of the House that there is a strong sense among the public—I think this is what the noble Lord, Lord Grocott, was getting at—that a decision may be being forced on the country against the will of the people. Indeed, reading what the Prime Minister has said about this issue, one feels that he thinks that, too. Clearly, this issue has some potential to undermine yet again public faith and participation in the political process. For that reason the Government have to respond to the European Court ruling in a way that is mindful of the views of the public and reassures them that their representatives are not simply rubber-stamping decisions made elsewhere. I hope that all noble Lords agree that it must be done in a way that is sensitive to British values and respects the position of this sovereign Parliament.

To be fair, the European Court itself recognises that fact, which is why it agreed to give the Government a degree of flexibility in how they respond to the ruling that a blanket ban on prisoners’ voting is unlawful. I believe that the concept is called a “margin of appreciation”, which has also been known to apply in other fields, but is particularly important here. In short, therefore, we would argue that the Government are not compelled by the margin of appreciation to give all prisoners the vote, but are required to enfranchise some. It is clearly up to the Government to decide who they believe should have the right to vote and to put that decision to Parliament.

It is rumoured on the grapevine that there will be an announcement before Christmas; I think that that grapevine is called the Lord Chancellor. In reply to the debate last week on the sentencing Green Paper, I think he made an announcement that there would be a parliamentary Statement around this subject before the Christmas Recess, and we look forward to hearing what it has to say.

The amendment of my noble friend proposes to give the vote to all prisoners sentenced for up to four years in jail. That seems to be going too far. While it may be possible to persuade people to accept a change, whereby prisoners convicted of comparatively low-level crimes are allowed to vote, we do not believe that the law-abiding public would easily accept a solution that ends up with people guilty of really serious offences—including violence, sexual assault or crimes against children—having a say in who represents them while they are in custody. That could be the consequence of the amendment, which would set the threshold to as high as four years.

We find deeply unattractive the idea that that a judge should have a say as to whether an individual whom he is sentencing should have the vote. The first reason why it is unattractive is because, frankly, I do not think that there is any judge in existence who would want that power. Secondly, the idea’s unattractiveness is demonstrated, for example, by the prospect of a prisoner not being allowed to vote because a judge has used his discretion in a particular way, and whether that prisoner should have a right of appeal about that aspect of the sentence.

--- Later in debate ---

[Lord Bach]

I have to say that the possibility of that kind of appeal clogging up an already busy system is not one that we would support, particularly at this stage.

We cannot support the amendment, although we are grateful to my noble friend for raising this subject—as, I am sure, the Committee is—because the issue has exercised this House a great deal over the past few years. We very much look forward to the Government coming up with their proposals in the next few weeks.

[Lord Lloyd of Berwick]

The noble Lord says that he cannot support four years as being just too long from the point of view of public opinion. What period would he support?

Terrorist Asset-Freezing etc. Bill [HL]

Debate between Lord Bach and Lord Lloyd of Berwick

Monday 25th October 2010 Lords Chamber

[Lord Lloyd of Berwick]

My Lords, I intend to address the amendments that relate to the final order, and I therefore wish to degroup the amendments that relate to the intermediate order.

It seems that the Bill has attracted little public attention, except from our own Constitution Committee, which was very critical of the Bill, and from bodies such as Liberty and Justice, which are even more critical. Liberty and Justice state in their briefing paper that they have four major concerns. The purpose of my amendments is to meet at least some of those concerns.

The purpose of the Bill is to give effect to Security Council Resolution 1373, following the decision of the Supreme Court in the case of Ahmed, which quashed the orders made by the Treasury. The Bill was first drafted by the previous Administration, but that does not matter, because the starting point of its drafting should surely have been the decision of the Supreme Court in the Ahmed case and the light that it throws on the meaning and effect of Resolution 1373.

Reading the Bill in July, my immediate impression was that Ahmed had been very largely ignored. The Bill simply puts on a statutory basis, as was required, the provisions of the Terrorism Order 2006, but ignores the very serious criticisms that the Supreme Court made of the order. To make that good in Committee, I referred to a paragraph in the judgment of the president of the Supreme Court, the noble and learned Lord, Lord Phillips. Afterwards, I wrote to the noble Lord, Lord Sassoon, to explain the difficulties that I had with the Bill, and he was courteous enough to reply. I make no apology for repeating the words of the noble and learned Lord, Lord Phillips, because they are central to what is wrong with the Bill. Having referred to paragraph 1(c) of the critical resolution, he continued:

“Paragraph 1(c) requires the freezing of the assets of those who commit the acts that the Resolution has required should be criminalised and their agents. Thus what the resolution requires is the freezing of the assets of criminals. The natural way of giving effect to this requirement would be by freezing the assets of those convicted of or charged with the offences in question. This would permit the freezing of assets pending trial on criminal charge, but would make the long term freezing of assets dependent upon conviction of the relevant criminal offence to the criminal standard of proof”.

I emphasise those words and the sentence that follows:

“The Resolution nowhere requires, expressly or by implication, the freezing of the assets of those who are merely suspected of the criminal offences in question”.

I turn now to what the noble Lord, Lord Sassoon, said in the debate in Committee on 6 October. He said:

“The Government do not support moving to a higher legal threshold than reasonable belief, for example by imposing asset freezing only on those who have been convicted of a terrorist offence. Such a move would undermine the preventive nature of the regime”.

I will come back to that. The noble Lord said that such a move would also,

“be incompatible with international best practice and the aims of the United Nations Security Council resolution”.—[Official Report, 6/10/10; col. 122.]

With great respect, that is simply not correct. To make the commission of a terrorist offence the threshold of a freezing order could not be incompatible with the aims of the resolution, since, as I have just read out, that is what paragraph 1(c) specifically requires. States are required to freeze without delay the assets of persons who commit or attempt to commit terrorist acts—nothing less, nothing more. There is no mention anywhere in the resolution of those suspected of committing terrorist acts.

If it is then said that in the passage that I have read the noble and learned Lord, Lord Phillips, was, as it were, on a frolic of his own, then what about the noble and learned Lord, Lord Mance, at page 451 of the judgment? At paragraph 225, he said:

“The relevant wording of Security Council Resolution 1373 … is directed at the prevention and suppression and the criminalisation and prosecution of actual terrorist acts; at the freezing of funds or other financial assets or economic resources of persons ‘who commit”—

again, the same words—

“or attempt to commit, terrorist acts or participate in or facilitate the commission of terrorist acts’”.

A little later, he went on to say that the wording of paragraph 1(c),

“does not suggest that the Security Council had in mind ‘reasonable suspicion’ as a sufficient basis for an indefinite freeze”—

what we here call a final order. I would add that nor is there any suggestion that the Security Council had in mind “reasonable belief”, as opposed to “reasonable suspicion”.

At paragraph 197 of the judgment, the noble and learned Lord said that reasonable suspicion,

“goes well beyond the strict requirements of Resolution 1373”.

The noble and learned Lord, Lord Brown, said exactly the same at page 196. I need not refer to his language because it replicates that of the noble and learned Lords, Lord Mance and Lord Phillips.

The only justice to have expressed a contrary view was the noble and learned Lord, Lord Rodger, at paragraph 170, but none of the other six judges agreed with him. Therefore, in my submission there is no doubt at all about what the Supreme Court decided. That is put very well in the rather lengthy head note, of which I should perhaps refer to a very small part. It said that the appeals would be allowed because Resolution 1373 was not phrased in terms of reasonable suspicion, so by introducing such a test the terrorism order went beyond what was necessary or expedient to comply with the relevant requirements of the resolution and that accordingly the terrorism order was ultra vires the powers conferred. Therefore, again, there is no doubt about what the court decided. However, when this Bill was being drafted, those responsible for the drafting must have read the speech of the noble and learned Lord, Lord Rodger, but overlooked the speeches of the three noble and learned Lords to whom I have referred and what, on any view, was the actual decision of the court. I hope that, when he comes to reply to this amendment, the noble Lord, Lord Sassoon, will accept that my amendments are not in any way incompatible with Resolution 1373—indeed, quite the opposite. They give meaning and effect to the resolution in precisely the way that the Supreme Court indicated.

As a result of the Second Reading debate, and in particular the speech of my noble friend Lord Pannick, the Government now accept that “reasonable suspicion” is not good enough and instead they have substituted “reasonable belief”. The noble Lord, Lord Rodger, said that it is very difficult to say how much difference there actually is in practice between those two. I think he describes suspicion as being “only a little less stringent than belief”, or words to that effect. Whatever the precise difference between those two, surely it is clear that exactly the same argument, which has led the Government to accept that suspicion is not good enough, must also apply to what they have now substituted; namely, belief.

It is true that belief will catch fewer innocent people than suspicion, which I assume to be the reason for the change, but I doubt whether it will make much difference. The point remains the same: that belief, like suspicion, casts the net too wide; it is far wider than the resolution requires, so that more innocent people will inevitably be caught. That is why it is so important to keep to the words of the resolution and not to change the essential nature and target of the resolution. I put it to your Lordships that that means the final order must be confined to those who have been arrested and charged with a terrorist offence and that is what will be achieved by my amendments, if they are accepted. I beg to move.

[Lord Bach]

My Lords, to my surprise, I shall be speaking early in these proceedings but I enter the fray at a rather late stage of the Bill because my noble and learned friend Lord Davidson of Glen Cova cannot be here today. However, on this Bill I am not to be allowed gently to put my toe in the water. The House is dealing with important amendments tabled by the noble and learned Lord, Lord Lloyd of Berwick, to whom I want to pay tribute. He has a deserved reputation for knowledge and expertise, particularly in this area, going back many years. I have also had the experience of debating with the noble and learned Lord on a number of occasions when sitting on the other side of the Chamber. Although he is always a model of courtesy, good manners and, of course, persuasion, I have no doubt that those who have succeeded me will find his arguments as difficult to deal with as I did. However, I say with the greatest respect, that does not always mean he is right.

Today, we on this side believe that the noble and learned Lord is wrong in limiting final determinations only to those cases where a person has been charged with a criminal offence under Clause 2(2). Why do we think that? In essence, we think that such a step would be impractical and would not work in the real world. Reading through the Committee stage debates, I was impressed by the arguments employed by the noble and learned Lord, Lord Wallace of Tankerness, in dealing with this issue. It seems to us that his arguments are powerful. On 6 October, he said:

“Unlike control orders, asset freezing is not only used against people in the United Kingdom who cannot be prosecuted or deported. In fact, only around 10 per cent of asset-freezing cases involve people who are in the UK or hold funds here and are not being prosecuted for terrorist offences”.

The noble and learned Lord went on to say:

“The noble and learned Lord, Lord Lloyd of Berwick, indicated that he thought that those who were subject to designation should also be prosecuted. I asked how many people who have been subject to asset freezes have been prosecuted”.—[Official Report, 6/10/10; col. 150.]

He was advised that 21 individuals in the UK had been convicted for terrorism offences, and that six people within the UK have not been prosecuted. He went on to say that he had asked his officials how many persons outside the UK had been subject to designation for asset freezing, and that the answer was 36, of which 22 were entities and 14 were individuals. He said that it would just not be possible to prosecute them. That is, in essence, what the noble and learned Lord said at the Committee stage of these proceedings.

The trouble is that if one had to charge before making a final designation order, many of those whose assets one would want to make an order against might not be in the jurisdiction, might not be likely to be in this jurisdiction, or might have skipped the jurisdiction as fast as they possibly could. Why should they escape the making of a valuable order if it would assist in the fight against terrorism? That is why we think that in the real world, where a considerable number of the people who one would want to make an asset order against are abroad and not within the jurisdiction, there should be power to make such an order, because if there were not, there would be a serious lacuna in the law.

[Lord Lloyd of Berwick]

My Lords, before the noble Lord sits down, I hope that he will deal with that point a little more fully as it is quite important. Is he arguing that Clause 1 has extraterritorial effect? If so, that is not stated in the Bill. Indeed, the Bill specifically provides that the offences provision in Chapter 2 is to have extraterritorial effect, but there is nothing in the Bill to suggest that we can serve persons abroad. It applies only to our own nationals and to people within this country in the ordinary way.

[Lord Bach]

I have to admit that I do not know the answer to the noble and learned Lord’s question. However, I am concerned about the position of a UK citizen who goes abroad and who therefore cannot be interviewed and perhaps afterwards charged with an offence, and who because of that fact cannot have an order made against his assets. As I understand it, having read the letter from the noble Lord, Lord Sassoon, in response to the Joint Committee on Human Rights, that actually happens in real life.

[Lord Lloyd of Berwick]

I will not take up the noble Lord’s time further, but I shall obviously need to deal with that matter with the Minister who no doubt has given consideration to this important point.