Terrorist Asset-Freezing etc. Bill [HL]

Lord Davies of Oldham Excerpts

Wednesday 6th October 2010 Lords Chamber

Moved by

[Lord Davies of Oldham]

7: Clause 2, page 2, line 7, at end insert—
“( ) In making a designation under subsection (1), the Treasury shall have regard to the United Kingdom’s international obligations in respect of—
(a) the prevention of terrorism; and(b) the humanitarian needs of the person affected by designation.”

[Lord Davies of Oldham]

My Lords, I shall speak also to the amendments grouped with Amendment 7, including Amendment 51, which is linked to it. I also note that our new Clause 10 is included; it is there in a most helpful frame from the Opposition towards the Government, and I hope that the response from the Minister will reflect that.

I shall address the question of Amendments 7 and 51 and why the official Opposition have tabled them. We seek to question the Government about the extent to which the Treasury will consider our relevant international and European commitments when making designations. Based on the submissions made on the draft Bill and the issues raised by the Constitution Select Committee, have the Government considered whether the proposed legal framework for designation adequately encompasses our international commitments? In particular, have they considered whether it is appropriate to assess a licence on humanitarian grounds prior to invoking the asset freezing attached to any designation? That it should be an offence in the interim period for a person to provide the necessities of life appears to be directly at odds with the United Kingdom’s international commitments under UNSCR 1452, which relate to exceptions being granted for individuals designated under the asset-freezing regime to meet basic humanitarian needs.

I realise that in the previous amendment we discussed aspects of this issue, but I seek greater clarification from the Government on this matter. Would it not be desirable instead to introduce this step near to the beginning of designation, before its effect is felt, to ensure that the Treasury has in fact considered the appropriateness of the licence in every circumstance? We have great sensitivities about this issue with regard to licences. We all recognise the difficulties while at the same asserting, as my noble friend has been concerned to do in his earlier contributions, how we share with the Government the prime focus of this legislation, which is to protect our community and our people from acts of terrorism. Of course we do not want to infringe the capacity for that at all, but, given our international obligations, we want to look at how much these factors factor into the position when the Treasury looks at a designation order.

Our amendment would provide maximum flexibility because it would not prevent the Treasury from deciding that a licence was not appropriate in individual circumstances or from deciding later that a licence should be granted, varied or revoked. This includes situations where a designated person or a third person affected by designation applies to the Treasury for relief under the licence scheme. These are probing amendments, and I hope that the Minister will respond to them as constructively as he can.

On Amendment 10, the Opposition are concerned to be even more helpful. We cannot see the explicit power in the Bill to grant a licence. The Bill as drafted certainly allows the Treasury to vary or revoke a licence at any time, but there does not seem to be explicit provision for the Treasury to grant a licence. There are phrases about what a licence may contain and what it means once a licence has been granted, but we cannot identify a specific power. The purpose of our amendment, therefore, is a new clause to enable the Treasury to grant a licence. This would give legal effect to a licence so that it and any decisions made in reference to it could not subsequently be challenged in court.

Such is my respect for Treasury lawyers—indeed for the Treasury in all its aspects, from past experience—that I have no doubt that my anxieties in this respect are completely groundless. I hope that the Minister will be able to reassure me. If not, we will seek to press our new clause.

[Baroness Falkner of Margravine]

My name is on Amendment 48 along with that of my noble friend Lady Hamwee. Before I speak to it, I should say that Amendments 7 and 10 of the noble Lord, Lord Davies of Oldham, seem entirely reasonable, but in the absence of knowing what United Nations Security Council Resolution 1452 refers to, I will restrict my arguments to Amendment 48.

The intention behind our amendment is to clarify Clause 13 in order to improve accountability and increase transparency so that officials, as well as the designated person, are in a position to know how they go about setting the test for reasonable living costs, which is what we refer to in our amendment. Reasonable living costs will inevitably be a matter of subjectivity in a family due to their requirements. In ascertaining what reasonable costs are, our concern is how the Treasury will make that assessment. More importantly, should the assessment made not be one that, from the perspective of the designated person, fulfils their reasonable living costs? As I said, it is all rather subjective. How will they be able to challenge that and get a variance to the original order? How long would it take for that to be achieved? Again, if it were to take a cumbersome length of time, that would be quite an onerous obligation on the designated person.

--- Later in debate ---

Finally, Amendment 51 inserts a power to grant a licence under Clause 13(4), which gives the Treasury the power to vary or revoke a licence. I assume that this amendment was tabled from a concern that the clause does not give the Treasury the power to grant a licence. However, as I have described already, partly since subsections (1) and (3) grant such a power, we see no particular value in including the amendment in the Bill. On that basis, again, I hope that the noble Lords will withdraw the amendment.

[Lord Davies of Oldham]

With the Minister’s categorical reassurance buttressing the comments of the noble Baroness, Lady Noakes, which I also accept as an important contribution, I am happy to withdraw the latter amendment in due course.

We are all aware how significant this legislation is and how judicial review and challenge can occur. Therefore, it is right that we ensure that we are secure about the legislation that we are passing in this House. We have sought that reassurance through a probing amendment. I have now obtained that reassurance.

On the more general issue, I am very grateful to the Minister. He apologised for the length of his reply. However, he should be congratulated on the length of that reply as he identified exactly the areas of anxiety which the Opposition and the wider public might have about the considerations that obtain when these issues arise. After all, these are executive acts. It is very important that we know the context in which executive acts are carried out. I am grateful to the Minister for the extent of the detail that he gave. I reassure him that it was not a waste as we shall not press the relevant amendments. I beg leave to withdraw the amendment.

Amendment 7 withdrawn.