Scotland Bill

Lord Sassoon Excerpts

Tuesday 28th February 2012 Lords Chamber

[Lord Browne of Ladyton]

I am not saying that this is devo-max; I am saying that this is the Bill. The Bill is a very significant piece of legislation and a remarkable advance in the potential devolution in Scotland. However, as the noble Lord has pointed out, it is misunderstood and has not been properly explained. Broadly, it is not supported or championed in the observations of those who have brought it to this Parliament. More specifically, it has not been championed by the Prime Minister, who has suggested in fact that it is just a small step and that greater steps can be taken in future.

The people who drafted the Bill and are responsible for it may not have intended to do this, but they have given us the answer to the challenge for the future post the referendum on the issue of separation. They may not know that they have given us the answer but they have. Now they need to build the other part of the mechanism that allows this Parliament—the sovereign Parliament—to play its proper role in deciding what the criteria are in advance of specific proposals of the sort of devolution that can take place. In other ways, they should spell out, as Michael Moore did in his evidence to the Select Committee, the criteria that need to be applied and would need to be met before a tax—either a new one or a part of the United Kingdom’s existing taxation—could be devolved.

We need to amend the Bill to provide that mechanism. I believe that it can be provided by regulation, which is why the amendment has been drafted in the way that it has. At the risk of boring noble Lords, particularly the noble Lord, Lord Forsyth, I do not think it is an issue of principle, once we establish the principle, as we will by passing the Bill, that taxation can be devolved in this way to the Scottish Parliament. It is a mechanism to make sure that that is done properly and in a way in which the various parts of this deal take their proper responsibilities. That is the bit that we are missing because this Parliament is entitled to be confident that any devolved taxes will be used for the benefit of the Scottish people and the union. It is for this reason that we believe the Government have a duty to enshrine conditions to this effect in some form of legislation—regulations would be quite sufficient. This would provide a clear regulatory framework that can be approved by this Parliament and then used flexibly in the future in the context of a changing settlement between the United Kingdom Parliament and the Scottish Parliament —between the United Kingdom and the people of Scotland.

I say to the noble Lord, Lord Sassoon, whom I welcome to our Committee’s deliberations—I do not know how much previous experience he has had of Scottish political matters, but over the next few hours he is in for a crash course—that the Scottish Affairs Select Committee raised these issues in its report on the Bill almost a year ago today. I therefore hope that having had the benefit of a year to consider the matter further—and I am sure the noble Lord has been thinking of nothing else—at the very least he will be able to provide this House with some sort of detailed explanation of the mechanism and criteria to be applied on the use of this power. If he cannot do so, it would be helpful if he provided us with at least some hypothetical examples of taxes that could meet such criteria.

[The Commercial Secretary to the Treasury (Lord Sassoon)]

My Lords, one thing on which I think we are all agreed is that we are getting to the heart of the Bill. There is a range of views about how significant the changes are in Clause 28, but we all recognise the importance of what we are discussing.

The Government are quite clear that the Bill delivers substantial new powers to the Scottish Parliament—powers that have been included as a result of careful and detailed consideration. I want to focus on what is in the Bill, not on what hypothetically might be in it. The Government have been clear that any consideration of further powers to be devolved is for after a referendum on independence. Let us therefore concentrate for now on what we have in front of us.

I should also say at the outset that as an intruder from outside Scotland and a Briton from elsewhere, as the noble Lord, Lord Browne of Ladyton, suggested, my observation is that to date devolution in Scotland, of which the Bill is part of a continuing process, has been delivered as a result of lengthy discussion, analysis of evidence and cross-party consensus. That was how the settlement was delivered in 1997 and that is how the measures in the Bill have been developed. I am grateful for the noble Lord’s confirmation at the outset that he believes that the tax-raising powers granted in this clause are appropriate.

[Lord Forsyth of Drumlean]

The tax-creating powers in the Bill, as the noble Lord acknowledged, were not recommended by Calman. A phrase, “specified taxes”, was put in there to deal with the uncertainties over an aggregates tax. No one has been consulted or is aware—as far as I can see, and that is what my amendment relates to—that the Bill provides for the creation of completely new taxes. I do not know where that came from. It is certainly not part of the Calman recommendations and has not been subject to any extensive discussion or consultation. Indeed, my noble friend Lord Lang, the former Secretary of State for Scotland, said that he was not aware of the issue until he looked at the Bill in detail—and he is one of the best-informed people in Scotland on this matter.

[Lord Sassoon]

If my noble friend would bear with me, we will get to this point and to other points he has made. If he wishes to repeat the points he has made previously, he can do so ad nauseam. However, I say to him respectfully that we have got the point loud and clear, and I will come on to it. As the noble Lord, Lord Browne, pointed out, the genesis of this power is in Calman. It is a power that has been debated and approved of by committees in another place in this Parliament, as well as in the Scottish Parliament—but I will come back to that. My noble friend completely mischaracterises the debate so far over this power to create new taxes.

We are discussing a number of amendments to an important clause, and I should therefore make sure that we are clear about the architecture of it before I come back to the heart of the arguments. Clause 28 inserts new Sections 80A and 80B into the Scotland Act. New Section 80A provides an overview of the new taxation provisions. New Section 80B introduces a power to add new devolved taxes to those devolved by Clauses 33 and 35, and makes certain consequential provisions applicable to devolved taxes.

Amendment 51A, tabled by the noble Lord, Lord Sewel, would remove new Section 80B. The amendment of my noble friend Lord Forsyth of Drumlean seeks to remove devolved taxes altogether from the legislative competence of the Scottish Parliament, thereby preventing it from legislating on all tax matters besides local taxes. The amendment tabled by the noble Lord, Lord Browne of Ladyton, and the noble and learned Lord, Lord Davidson of Glen Clova, would provide approval of the criteria and procedures under which new taxes will be considered for devolution by this Parliament before the power could be used.

I propose to outline briefly why the financial aspects of the Bill introduced in new Section 80A, and which I stress my noble friend Lord Forsyth’s amendment seeks to remove, will raise the accountability of the Scottish Parliament and benefit both Scotland and the UK as a result. I very much note what my noble friend Lord Steel of Aikwood said about the importance of accountability. After I have dealt with those issues, I shall address in more detail new Section 80B, the subject of the amendment of the noble Lord, Lord Sewel, and the arrangements that we propose for the approval of new taxes—the subject of the amendment in the name of the noble Lord, Lord Browne, and on which he seeks assurances. That is a critical element of the construct to which other speakers in this debate did not give proper weight.

New Section 80A introduces the finance clauses in the Bill. It grants significant positive new powers to Scotland, and I should outline the measures in the clauses and why they represent such an important and beneficial step for both Scotland and the UK as a whole. The Scotland Act 1998 specifies that tax policy, aside from local taxes, is outside the Scottish Parliament’s legislative competence. The changes made by the Bill that are introduced in new Section 80A will amend the Scotland Act to enable the Scottish Parliament to legislate on certain devolved areas of tax policy. The changes will give the Scottish Parliament a real stake in Scottish economic performance because a significant proportion of the budget for public services in Scotland will come directly from taxes set and raised in Scotland. Some speakers have suggested that it would be appropriate to go much further, but we are taking a significant step here. It will enable the full devolution of stamp duty, land tax and landfill tax and enable the Scottish Parliament to legislate for a Scottish rate of income tax.

[Lord Maxton]

My Lords, I am not very clear about the Scottish rate of income tax. I am a Scot; I live in Scotland—that is where my home is—but I am paid a pension by Parliament which comes from Cardiff. How does that become part of that? It is paid directly into my bank; as far as I know, they do not need to know where I live; so how do I get income tax variation for Scotland alone?

[Lord Sassoon]

If the noble Lord will forgive me, we are coming to income tax under the next clause. I am sure that we will come back to that extensively and properly later. This is the enabling clause that enables the setting of the Scottish rate as well as the focus of the amendment on the power of the Scottish Parliament, with the agreement of this Parliament, and subject to safeguards—to which I shall come—to introduce new taxes.

I hope that the Committee will agree with me and the Government that these changes will enable the Scottish Parliament and the Scottish Government to respond better to the evolving needs of Scottish society and the Scottish economy; and that they will increase the Scottish Parliament’s accountability, as its decisions on public services will be directly related to decisions on Scottish taxes.

I see that the noble Lord, Lord Foulkes of Cumnock, is nodding in agreement; I hope that that will continue right through this section of the Bill. No, he is saying that it will not; no doubt we will come back to football clubs and other matters later, but we agree so far.

Thirdly, these changes will bring decision-making over the issues that affect them closer to the Scottish people, which we believe is appropriate. New Section 80B will create the power for the Scottish Parliament to introduce new taxes, subject to the agreement of both Houses in this Parliament. The noble Lord, Lord Sewel, was quite right to draw attention to the approval process. He seems to want to draw it even more tightly but, on the other hand, he points out—partially in answer to my noble friend Lord Forsyth, who seems to think the approval process to be woefully inadequate—that the clause states that it must have the agreement of both Houses in Parliament, which is not necessarily the case with all taxes as it stands at the moment.

[Lord Forsyth of Drumlean]

On that point, perhaps my noble friend could deal with the argument here. If I may say so, he has put it as if it is not a major constitutional point. As a Member of the House of Commons, I was taught that the main purpose of the House of Commons was to vote means of supply; that is its main function. Therefore, the creation of new taxes is a matter which is dealt with thoroughly by primary legislation through a Finance Bill, which enjoys certain privileges. Those matters do not come to this House because this House has no part to play in matters of taxation, following the efforts of the previous Liberal Administration.

It seems to me to be a hugely novel concept that the House of Lords should be involved in approving the creation of a new tax. Can my noble friend explain why that is included in the Bill?

[Lord Sassoon]

My Lords, again, I will get there in the logical flow of the argument, if my noble friend will permit me. He does not make new points; I have them on board; I will try to address them, but I think we should go through the logical steps of exactly what the construct will be, because this is a critical question. I do not dismiss it.

Why is it so important? The power will enable the whole of an existing tax to be devolved and allows for the creation of a completely new devolved tax. That is clear. It is a power recommended by Calman but which the Government are not in a position to devolve at this time so, to that extent, it is necessary to implement Calman.

[Lord Sewel]

Does the noble Lord accept that there are fundamental differences between using orders and using primary legislation? One of those fundamental differences is that an order cannot be amended. I should have thought that, on the creation of new taxes, it is likely that Parliament might wish to amend such an order when it comes before it.

[Lord Sassoon]

Again, perhaps I may be permitted to go through the complete steps needed to introduce any new tax.

The Government believe that we have a proportionate and appropriate package. We need to take all the measures in the round. In this case, to address the specific question of the role of your Lordships' House—I will not be drawn into taking all the points out of order, but the question of the role of the House of Lords is important—it is because the power addresses the constitutional question of who should be able to set a tax, not the rate of the tax nor the structure. The question of the introduction of the new tax is indeed one in which this House should have a role, which is included in the Bill and the clause.

[Lord Forsyth of Drumlean]

I apologise for interrupting my noble friend again, but this is central. For the sake of argument, let us say that this power is used by the Scottish Parliament to introduce a mansion tax or a wealth tax. Is my noble friend saying that this House could consider and reject it and that that is practical politics? It seems to me that part of the 1911 settlement was that this House did not get involved in those matters. In a sense, I am here arguing for more power for the Scottish Parliament, not less, because I think that this has not been thought through.

[Lord Sassoon]

The answer is yes and yes to my noble friend. The introduction of new taxes is a constitutional change to the United Kingdom and a power which will be introduced. I will go through the steps one by one, because we have not debated them all fully so far this evening. One of the steps is for the order to be approved by both Houses of Parliament; the Government believe that to be appropriate. So that is a yes. There may be questions about whether orders can be amended and other questions, but emphatically it is our intention that the order to implement a new tax has to be approved in both Houses. That is clear. My noble friend may look surprised, but that is the case. I hope that that gives him significant comfort.

[Lord Cormack]

I am most grateful to my noble friend for giving way, but it would be invalid under the Parliament Act for this House to express a view and vote on taxes within the United Kingdom.

[Lord Sassoon]

My Lords, I am not a constitutional lawyer, but those who drafted the Bill, who are quite clear about the centrality of this to the new constitutional settlement embodied here, are clear that it is a proper power to be exercised in the way intended under the Bill.

If noble Lords will forgive me, I would like to go through all the steps. As I said, this is a construct with a number of elements to it and we should look at it in the round. It comes to the heart of the issue that was principally raised in detail by the noble Lord, Lord Sewel.

There is a technical issue relating to the noble Lord’s amendment which we should get out of the way: the amendment would also impact on the provisions which allow for devolution of taxes on disposals to landfill and on transfers of land. The effect would be to prevent the Scottish Government collecting and managing such taxes or entering into agency arrangements with others to collect and manage the taxes for them. This would be critical if the Scottish Government were to be able to exercise their new tax powers effectively. I park that on one side but it is not an unimportant question.

I now turn to the central question of the power to devolve new taxes. I shall go through this in a way that I hope will give noble Lords some assurances that sufficient and proportionate safeguards are in place to ensure that this power is exercised to the benefit of the UK as a whole. I should also like to explain its importance in raising the accountability of the Scottish Parliament. There are those who are clearly concerned that the power goes too far but there are others who believe that the power does not go far enough. In the middle, we have the noble Lord, Lord Browne of Ladyton, who wants more assurance on the criteria.

First, I come back to the central authority that would be needed for new devolved taxes to be added. They would need to be added by Order in Council, which would be subject to the type A procedure set out in Schedule 7 to the Scotland Act. It is clear that this requires that no recommendation can be made to Her Majesty in Council until a draft has been laid before, and approved by, both Houses of Parliament and by the Scottish Parliament. Therefore, there will be thorough scrutiny of any proposals under this power, including the opportunity for Members of this House to debate fully any such proposals.

What did not get so much attention in this debate were the criteria to be adopted when looking at any new tax. This was a point on which the noble Lord, Lord Browne, focused his remarks but other speakers seem not to have taken full account of these criteria. They are laid out clearly in the Command Paper that accompanies the Bill. I believe that they set a clear framework of guidelines as to how the Government will consider the impact of any new tax proposed by the Scottish Parliament and hence decide whether to devolve it. For the avoidance of doubt, perhaps I may read out the criteria. They will include the potential for the new tax to create or incentivise economic distortions and arbitrage within the UK; the potential that the new tax might create for tax avoidance across the UK; the impact of the proposed tax on compliance burdens across the UK; and the compatibility of the new tax with EU legislation and rules, such as those covering state aid, the single market and the Human Rights Act. Therefore, there will be a considerable screening process before the Government decide to propose any new devolved tax.

I stress that the foremost consideration here is the need to ensure that any proposed tax will not impose a disproportionately negative impact on UK macroeconomic policy or impede to any degree the single UK market. Taxes will be judged against their potential to create or incentivise economic distortions or to generate avoidance or an impact on compliance burdens across the UK. It is those criteria that will give the Scottish Parliament the flexibility to adopt the policies that it considers to be best for Scotland, while preventing adverse effects on the rest of the UK.

[Lord Forsyth of Drumlean]

Perhaps I may ask my noble friend to consider the politics of this, as opposed to what the rule book says. I suggest that we look at the difficulty that the Government have at the moment in deciding whether to legislate on a referendum. That is clearly a matter for Westminster and not for the Scottish Parliament but the Government are doing cartwheels trying to find a way to use Section 30 because they do not want to be seen to be dictating to Scotland. If the Scottish Parliament, with this power, decides to create completely new taxes—perhaps putting up the top rate of tax to 60 per cent or removing the exemption for unearned income or whatever—does my noble friend really think that it will be practical politics for this House or even the other place to say that that is not going to happen because under criterion 4C it will influence macroeconomic policy? That is not real politics. A genie is being let out of the bottle here and we should not deceive ourselves about how radical this is as a proposal. I hope that my noble friend will address this for what it is and not for how it is presented.

[Lord Sassoon]

My Lords, my noble friend’s examples concern changing the rates of existing taxes rather than new taxes. However, I think that it will work fine. With the process that has led up to these clauses in the Bill, Calman has looked at potential taxes for devolution. There has already been considerable discussion in Scotland and between Scotland and the UK Government. When it comes to the potential for new taxes to be added, I have explained the criteria which the UK Government have set down. On procedure, we are working closely with the Scottish Government to clarify the process that requests for new taxes will go through before they are brought before both Houses of Parliament. We have an administrative process to be agreed by the Joint Exchequer Committee, which brings together Ministers from both Governments. Therefore, I see a process here—

[Lord Foulkes of Cumnock]

With all these discussions that have taken place, can the Minister tell the Committee whether the Scottish Government have accepted these provisions in the Bill?

[Lord Sassoon]

Of course we await legislative consent, but there have been many detailed discussions; there have been the reports of committees in both Parliaments and the noble Lord knows perfectly well—better than I—where things stand. As to the question of what fits the criteria, I am not going to speculate about what future taxes might come forward, but one has the useful case study about the Scottish land transaction tax which fits the criteria very well. That points out precisely how other measures could come forward in future.

[Lord Forsyth of Drumlean]

The Minister said this is following Calman: it is not following Calman at all. As the noble Lord, Lord Browne, pointed out, Calman recommended a power to deal with specified taxes. Why is the Bill completely open-ended on the subject of new taxes? If there are particular taxes that would fall within the criteria, why not say what they are rather than leave it open-ended? My noble friend criticised me for giving an example of existing taxes; I could think of other examples. Suppose Mr Salmond invents a new tax on oil and gas landed in Scotland, for example. One could think of all kinds of taxes, but to present this as arising from Calman is completely wrong. Calman suggested a limited ability in respect of those taxes which it was not appropriate to do at the moment for various technical reasons. The two I would think of are air passenger duty, which is actually not included in the Bill, and the aggregates tax. This, however, is much, much broader and more far-reaching. Why are we going for such an open-ended position?

[Lord Sassoon]

My Lords, recommendation 3.3 of the Calman report states:

“The Scottish Parliament should be given a power to legislate with the agreement of the UK Parliament to introduce specified new taxes that apply across Scotland”.

In Calman, certain taxes were specified. In this Bill, we are building on that and building in a procedure which is proportionate and would require the agreement of both Parliaments in future to deal with specified taxes—taxes that might be specified in future. I have explained to the Committee what the criteria are. We have an amendment that sought to tease out what they are and I explained them. The critical one relates to the macroeconomic effect. It is entirely right that we take the Calman recommendation and think about how there might be new taxes to be specified in future. It is not some open-ended invitation for the Scottish Parliament to introduce things. There are very clear safeguards, including an appropriate parliamentary procedure in London.

[Lord Browne of Ladyton]

I intervene with some trepidation in this fashion because I made clear in my remarks in this debate that I seek to support this Bill. However, the noble Lord is making it more difficult for me to support this Bill for a few reasons which I will explain, because I want to pose a significant question to him. First, he said in his introductory remarks—which I passed over but I come back to—that these matters were specifically debated and passed by the other place. He should be careful about deploying that argument, given the paucity of debate there was on any of these provisions in the other place because they were timetabled. Quite large chunks of this Bill were never scrutinised at all.

Secondly, he has repeatedly characterised my amendment—which I will not press this evening—as seeking further and better explanation. It is actually not: it is seeking a part of a construct which translates what he has said on criteria and mechanism—which he says is good and is in the White Paper and the Command Paper, and was in the evidence of the Secretary of State—into regulations that this House and this Parliament can debate and decide upon. That is different.

Thirdly, he encourages us to believe that the construct of co-operation between the Scottish and UK Governments that has been put in place is already starting to address some of these issues. The joint Exchequer committee that he refers to has met once, on 27 September, which was after the Second Reading debate in this House. This was an issue that I raised on Second Reading; his noble and learned friend the Advocate General for Scotland sent me a detailed letter about what happened about these co-operative processes, but they are not functioning at all. They are barely functioning and no significant progress is being made in relation to the co-operative work that is necessary. The Minister shakes his head. Perhaps he will address the two issues that I have raised in this intervention. The first was about criteria and process translated into regulation. The second was a question: what is happening between the United Kingdom Government and the Scottish Government about preparing for the devolution of this power?

[Lord Sassoon]

I think that the noble Lord made at least three points. The first concerned the degree of scrutiny in another place. It highlights the very valuable, indeed essential, role that this House customarily plays. It is no different with this Bill. Of course, there was committee scrutiny as well as scrutiny in the formal stages of the Bill.

[Lord Browne of Ladyton]

My Lords—

[Lord Sassoon]

Perhaps I may answer the questions that the noble Lord has already raised.

[Lord Browne of Ladyton]

I refer to scrutiny and point out, again with some diffidence to the noble Lord, that this is a constitutional Bill. Everything that happened in relation to the Bill happened on the Floor of the other place. The Bill went into Committee there. It was timetabled by the Government and many of these provisions were not debated.

[Lord Sassoon]

My Lords, I will not stand here and criticise or question the way that another place goes about its business. We are now giving the Bill—and this clause in particular—appropriate scrutiny, and I will take as long as I need to give appropriate answers to the questions that were raised.

[Lord McFall of Alcluith]

I refer to the contributions made already. Under the Bill, could the Scottish Parliament reduce corporation tax and increase taxes on oil and gas?

[Lord Sassoon]

If the Scottish Government came forward with new tax proposals, they would have to meet the criteria that I laid out, which would include provisions on the macroeconomic effect. Clear criteria are set out and it would not be sensible for the Scottish Government to come forward with tax proposals that did not meet the criteria. The noble Lord, Lord Browne, asked whether the criteria should be enshrined in some way. It strikes an appropriate balance to have them clearly set out in the Command Paper.

[Lord Sewel]

My Lords—

[Lord Sassoon]

I will give way in a moment. Perhaps I may try to answer some other questions first. The criteria are clearly set out and it is appropriate—

[Lord Sewel]

On this point, the noble Lord, Lord Forsyth, mentioned on a number of occasions the real politics of the Bill. Following my noble friend Lord McFall, perhaps I may ask the Minister whether he is aware of the phrase, “It’s Scotland’s oil”, and of how potent that would be in any debate if the Scottish Government brought forward an oil tax.

[Lord Sassoon]

My Lords, I am not sure that it is profitable to speculate about what, at some time in the future, a Scottish Government might come forward with. I have set out that there are clear criteria that the UK Government will use to screen proposals. It is very important that the criteria are clear to the Scottish Government—and they are. Secondly—I will give way in a moment to the noble Lord, Lord McFall—it is also appropriate that they are set out, as they are, in a Command Paper, which will give flexibility as circumstances change. The criteria are fundamental and clear.

[Lord McFall of Alcluith]

Perhaps I may intervene again. I do not have a clue about what the Minister’s answer to my question was. Corporation tax has been a big issue in Northern Ireland and Scotland. It is a contemporary issue in Scotland. I put it to the Minister again: could the Scottish Government come forward with proposals to reduce corporation tax and increase oil and gas taxes? I ask for a simple yes or no answer.

[Lord Sassoon]

The answer is a very simple yes. They could come forward with such a proposal, and the Government would judge it against the criteria. If it met the criteria, it would then go through the procedure of the two Houses of Parliament.

[Lord Foulkes of Cumnock]

I have a summary of the majority and the minority reports of the Scotland Bill Committee of the Scottish Parliament. The Minister will know that the majority report recommended that,

“the Scotland Bill be amended to devolve the full range of financial powers to the Scottish Parliament”.

I spoke with Linda Fabiani MSP just a couple of weeks ago and asked when this report was going to the Scottish Parliament, and she said not until after we have made a decision down here.

We have got deadlock on this. The Scottish Parliament will not consider this report until we have dealt with this, and we know that it is going to recommend something different. Surely, in view of all the criticism that we have had from both sides, and now from the opposition Front Bench, the Government would be well advised at this very minute to take this whole Bill away—we are going to look at it again next month—and reconsider this whole matter, after discussions with the Scottish Executive about how it will be dealt with in Scotland. Otherwise we will be in a stalemate.

[Lord Sassoon]

I thought that my agreement with the noble Lord, Lord Foulkes of Cumnock, would not last terribly long. This is a general point, which he could raise on every clause of this Bill. With all due respect, I really do not know what it has to do with this clause in particular.

[Lord Foulkes of Cumnock]

Why—

--- Later in debate ---

[Lord Sassoon]

I am not going to give way immediately to the noble Lord, Lord Foulkes of Cumnock, because that would be discourteous to the noble Lord, Lord Browne of Ladyton, one of whose questions I have not yet addressed. I have a short memory so I would rather answer the questions that I have had before permitting another intervention. The third question asked by the noble Lord, Lord Browne, was about what progress was being made in the discussions. The joint Exchequer committee agreed that it should meet twice a year, so the fact that it met in September means that a further meeting is anticipated later in the spring.

[Noble Lords]

Oh!

[Lord Sassoon]

I listen to all the guffawing going on, but many noble Lords have been in government here and there and will know that there is much good and important work that can and must be done to make such meetings effective. That is what is going on, and good progress is being made, including on the process for introducing a new tax under this Bill.

[Lord Foulkes of Cumnock]

The question I asked is so important on this issue because the Minister himself said this issue is the central part of the Bill. I thought of this months ago when I asked, in a Question to the noble and learned Lord, Lord Wallace of Tankerness, why we were going ahead with the Bill. It has become obvious that a huge coach and horses has been driven through a central plank of the Bill by the noble Lord, Lord Forsyth, and my noble friend Lord Sewel.

The best information we have is that the Scottish Parliament is going to reject the Bill. It is, you can shake your head as long as you like, Jim—sorry, Lord Wallace. Perhaps the noble and learned Lord can tell us what indications he has that the Scottish Government are going to accept this Bill as it is currently framed, if we agree it.

[Lord Sassoon]

My Lords, forgive me if I stick to the clause as we have it. It is a separate matter, which relates to the whole Bill. I agree on the importance of this clause. Of course there needs to be agreement to the whole Bill in due course but what we are doing today—we are not making a great deal of progress but it is important and we should deal with these important points—is trying to make sure that some of these central clauses are got right. I do not know where the noble Lord, Lord Foulkes, sees a coach and horses, because I have not seen one coming from my noble friend or anywhere else in this Chamber.

I would suggest that not all the speakers in this debate have talked about all the elements of the process by which a new tax would be introduced. I suggest that Members of this Committee might like to reflect on what the total package looks like. I believe that it is proportionate, including the criticality of those criteria which are appropriately laid out in the Command Paper. Incidentally, when it comes to the ultimate agreement to any proposals that come forward for new taxes, I remind the Committee that when the variable Scottish rate of tax was introduced in 1998, it was of course passed by this House, so we have precedent in relation to tax matters and Scotland on that variable rate, and on this House having competence.

[Lord Forsyth of Drumlean]

Will my noble friend allow me one more go, at the risk of tedious repetition? Would my noble friend be happy if he thought that this power to invent new taxes was not circumscribed by the criteria, which, as he says, are set out in a Command Paper, which of course can be altered, and which is not part of the legislation? If there were no criteria there at all, would he be happy? If I suspect that the answer to that question is no, does he not see that the political reality is that those criteria will matter not a jot in circumstances where this power is conferred on the Scottish Parliament? That is the nub of what is exercising people on both sides of the House.

I do not mean this in any patronising way, but my noble friend has had a very distinguished career in the Civil Service and in banking. All of us have got battle scars from Scottish politics and know how it operates. He should take the fact that we all agree on this as a clear signal that these criteria that he is hanging on to will not exist in real politics if he proceeds in the way that he plans.

[Lord Sassoon]

My Lords, while I am not steeped in as many years of Scottish politics, maybe the benefit of being a bit of an outsider and coming at this with fresh eyes means that I am able to observe a little of the history of this. Notwithstanding the attempt to say that tax proposals have not been brought forward in any way that has had discussion and consensus to date, including the ones that are the subject of this Bill, the history gives me confidence that this is a construct that will work. This is based on what we have seen in the devolution of powers to Scotland to date, and in the process that has led up to where we are with this Bill—which is not perfect and so other critical steps must be gone through. I do not see this obstacle that my noble friend is putting up. However, we will have to agree to differ on that.

[Lord Sewel]

I am grateful to the Minister. In citing the creation of the Scottish variable rate for income tax in the Scotland Act 1998, is not the Minister actually supporting my argument that the creation of new taxes and new powers ought to be through primary legislation?

[Lord Sassoon]

No; the point I made was that it went through this House, as would an order as envisaged here. Any number of points can be made. The principal point I addressed was the question of whether this House would be circumvented in some way by the introduction of a proposal for new taxes for Scotland. The answer is: unequivocally not, whether by an order or by primary legislation.

I would like to move on, because I have now laid out the full process here. It is important to register again the question of accountability, and the importance of the new accountability for the Scottish Government that is given here in the proposal that, for the first time, the Scottish Parliament will have the facility—with the approval of this Parliament—to set new taxes. It means that the Scottish Government will be able to find ways to deliver their desired policy outcomes and potentially raise additional revenue. As well as assisting policy-making in Scotland, the ability to propose tax solutions will itself increase the accountability of the Scottish Government and the Scottish Parliament, which is of course the main purpose of the Bill.

The measures in Clause 28 will correct an anomalous situation whereby the Scottish Parliament can implement tax policy changes through only what Calman described as the backdoor of local authority taxation. At the moment, only local taxation is devolved to Scotland. Calman noted that the current situation incentivises the Scottish Parliament to achieve its policy aims through local taxes even though they might be more effectively achieved through devolving taxes which are reserved. Again, it is important that we reflect on that point.

Not only that, but introducing makeshift local taxes in lieu of the power to raise them nationally would mean that the UK Government and this Parliament would have no power to intervene even if there were implications for the wider UK tax system. The powers granted here would at least allow for a discussion of new taxes between Holyrood and Westminster that in many cases could result in better outcomes for both Scotland and the wider United Kingdom.

Although I suspect that we may come back to this matter in more detail in later clauses, I want to address in headline terms the question of my noble friend Lord Lang of Monkton on whether Scotland will be better off or not. I know that there are questions about what the evidence from the past shows and how much credence should be given to that past analysis. But in simple terms, Scotland will be better off under the proposed arrangement if tax receipts grow faster than public spending than they would under the current block grant system and vice versa. It is not possible to say exactly what the impact will be but the key point is that this Bill delivers accountability to the Scottish Parliament and not a guaranteed financial settlement.

[Lord Lang of Monkton]

I believe that the prediction my noble friend just quoted is for the five years from 2010 to 2015. I do not believe that but I accept that that is a Treasury view. However, the powers under this Bill will not come into force until about 2015. If my noble friend believes that the Scottish National Party, the Scottish Executive, are keen to have these tax powers, which we have been debating extensively this evening, simply in order to cut them, I cannot agree with him on that either. The fact is that they have vast ambitions for increased public expenditure. My argument is that they will have to increase taxation not just to increase expenditure but to keep the standard of living and government expenditure in the same place.

[Lord Sassoon]

My Lords, the directional effect that I have set out for the effect of what is proposed in this Bill compared to the current arrangements is clear. The question that people have is, on particular projections of growth and spending, what the effect would be. Of course, it is possible to give only the worked example of growth and spending based on the current spending settlement round and the current projections of the Office for Budget Responsibility. There is no question that you can forecast for one period or any other period. It entirely depends on the assumptions you want to make about the performance of the Scottish economy and the policy decisions made by the Scottish Government about expenditure.

The key point I come back to is that it transfers a significant amount of responsibility and accountability for this balance to the Scottish Parliament, which of course is fully accountable to its electors. That really goes to the absolute heart of what we are talking about and it is why I am grateful to my noble friend for drawing attention to the point.

I think that I should bring this discussion to a conclusion—

[Lord Steel of Aikwood]

Earlier I was justly chastised by the noble Lord, Lord Browne, for calling this a small matter. As the Minister says, it is significant, but does he accept that it is still light years away from what the noble Lords, Lord Kerr and Lord Foulkes, and I were talking about earlier, and which we hope might become a future Bill? It would get rid of all this overriding supervision by the two Houses here and simply say to the Scottish Parliament, “You raise the money that you spend”.

[Lord Sassoon]

My Lords, I come back to where I started, which is that it is the Government’s position that we have a Bill that is appropriate in the current circumstances. There should be a referendum with a clear question about independence. When that is out of the way, there may be other questions to be asked. For the moment, however, the Government believe that what is being proposed in this Bill is appropriate to the circumstances we are in. My noble friend Lord Forsyth of Drumlean suggests that this whole thing has come out of thin air and has no support from anyone. The noble Lord, Lord Browne of Ladyton, explained the genesis of it and I have said a bit more about Calman. The Scottish Affairs Committee has welcomed the provision to devolve new taxes and the accompanying criteria, and they have been welcomed by both the previous and the more recent Scotland Bill Committees of the Scottish Parliament and by the Scottish Government. It is therefore completely wrong to suggest that they have come out of a clear blue sky and have no support—before my noble friend chastises me, I do not think that that is a mischaracterisation of his position.

Finally, Clause 28 will provide powers to the Scottish Government to enable greater fiscal responsibility and increase the accountability of the Scottish Government and the Scottish Parliament. It grants both Governments the flexibility to negotiate the best possible solutions for Scotland and for the whole of the United Kingdom. At the same time, we believe that proportionate and sufficient safeguards exist to ensure that powers to devolve new taxes will not unduly damage the coherence of the UK tax system and the single UK market. I therefore propose that Clause 28 should stand part of the Bill and I urge my noble friend to withdraw his amendment.

Terrorist Asset-Freezing etc. Bill [HL]

Lord Sassoon Excerpts

Wednesday 6th October 2010 Lords Chamber

Moved by

[Lord Sassoon]

1: Clause 2, page 1, line 15, leave out “designate” and insert “make a final designation of”

[The Commercial Secretary to the Treasury (Lord Sassoon)]

My Lords, before moving the government amendment, I will make some brief introductory remarks to the Committee. At Second Reading, I explained to the House that the Government took seriously the civil liberties concerns that had been raised about the terrorist asset-freezing regime, and that they were committed to striking the appropriate balance between protecting national security and civil liberties. I explained that the Treasury would do further work over the summer, informed by the wider Home Office-led review of counterterrorism and security powers in considering civil liberties safeguards on asset freezing, and that if any government amendments were tabled to strengthen civil liberties safeguards, this would be done in Committee.

I am pleased to say that the Treasury has concluded its consideration of civil liberties safeguards on asset freezing, and has now brought forward amendments to strengthen safeguards in two key areas. First, we have tabled an amendment to raise the legal threshold for freezing assets from “reasonable suspicion” to “reasonable belief”, with “reasonable suspicion” only able to be used for interim designations of 30 days. Secondly, we have tabled an amendment stating that challenges to Treasury decisions to impose, vary or renew asset freezes should be heard by the courts under an appeal rather than a judicial review procedure. This ensures that there will be a robust, in-depth review by the courts of the Treasury decisions.

I hope that noble Lords will agree that these amendments address the concerns raised at Second Reading, and that they significantly improve the Bill. I know that noble Lords also are keenly awaiting the outcome of the Home Office-led wider review of counterterrorism and security powers, but I cannot provide the Committee today with a date for publication of that review. However, the Treasury's conclusions on asset freezing and safeguards are not intended to pre-empt the Home Office review, which has a separate piece of work. I assure noble Lords that the Treasury's work on civil liberties safeguards has not been carried out in a vacuum. The Home Office and other government departments have been consulted on, and have agreed to, the conclusions reached by the Treasury.

While the Government have an overall coherent approach to counterterrorism powers, this does not mean that each power should be subject to the same civil liberties safeguards, as the appropriate level of safeguards will vary depending on the nature of the power and how it is used. In particular, the Treasury and the Home Office agree that there are significant differences between asset-freezing and control orders, and that in consequence the approach that we take on asset freezing reflects the circumstances of this tool and does not need to be aligned with the Government’s approach to control orders, which is still under consideration.

I turn in more detail to the government amendments to Clause 2. The clause specifies the circumstances in which the Treasury has the power to designate persons. The Bill contains a provision for the Treasury to make an asset freeze on the basis of reasonable suspicion that that person is or has been involved in terrorism. The Government have tabled amendments to Clause 2, with a series of consequential amendments. These allow the Treasury to make an interim designation using the reasonable suspicion threshold for a period of 30 days. The Treasury can only make a final designation—that is, beyond 30 days—if it has reasonable belief that a person is or has been involved in terrorism. For ease of reference, Amendment 2 is the substantive amendment that raises the legal threshold from reasonable suspicion to reasonable belief. Amendments 29, 30, 31 and 32 permit the Treasury to make an interim designation. The other government amendments in the group are consequential and ensure that other parts of the Bill that referred to designations now refer to initial and final designations.

I will explain why we have tabled these amendments. I note that the noble Lord, Lord Pannick, has tabled an amendment on a similar theme, and I look forward to his remarks as the debate continues. We have retained reasonable suspicion for a 30-day interim period because we recognise that there may be occasions when asset freezes need to be imposed where there is a terrorist threat, but when, for example, investigations are continuing and it may not be possible to meet a higher threshold at the time. This was the case, for example, with the asset freezes against the attempted transatlantic airline bombers in August 2006. In these cases, asset freezes were made soon after arrests, to prevent assets being dispersed to associates of the plotters. The police assessed the freezes to be of significant operational impact.

--- Later in debate ---

[Lord Davidson of Glen Clova]

My Lords, the last Government passed the provisional Bill earlier this year to validate existing asset-freezing orders and to avoid gaps in the terrorist asset-freezing regime. At the same time, we sent a draft Bill for public consultation to ensure that we had a viable long-term framework for terrorist asset freezing. Those were the right decisions to take at the time and I thank the Treasury for its advice on these matters. What it means for us today is that we now have the benefit of public submissions on the draft Bill and the report from our Constitution Committee. Submissions on the draft Bill voiced a concern that the balance was not right between public security and individual civil liberties. Added to that is the report from the Joint Committee on Human Rights, which noted the necessity to keep assessing the appropriateness of terrorist legislation to ensure that the measures imposed remain fair and proportionate. We have taken these views on board.

The interim designation proposal from the Government is inevitably a compromise position to accommodate some of the concerns raised by the Supreme Court in the Ahmed case, in public submissions made on the draft Bill and by the Constitution Committee in the House of Lords. We have been considering the viability of a similar regime ourselves. In considering this solution further, we have a few questions about the Government’s proposed regime.

One issue that might benefit from clarification—this echoes the remarks of the noble Baroness, Lady Falkner—is how the Government came to the 30-day timeframe. I assume that there was nothing very principled about it. Do the relevant agencies consider that they will be able to meet the higher test within such a period? Do they consider that that will put a particular imposition on the limited resources available to them in this particularly difficult area?

As I understand the Minister’s position, the consequence of the new approach is that the order will drop, although it is reasonably suspected that an individual is involved in terrorist activity. I appreciate that there is more than a semantic difference between “reasonable suspicion” and “reasonable belief” but, as the noble and learned Lord, Lord Lloyd of Berwick, said, the difference between the two tests can be quite thin. Because this may be an area that will become contentious in court, it would be helpful if some indication might be given as to how the Minister perceives the difference between the two tests. As the noble and learned Lord, Lord Lloyd of Berwick, also said, it is paramount to suspend terrorists’ funding when one may.

There is a concern about the extent to which a string of interim designations might lead to pressure on sparse resources. Have the Government considered the possibility of a longer timeframe with a definitive cut-off point as a way in which to provide certainty and capacity for the long-term credibility of the asset-freezing regime? There is in New Zealand a possibility of a one-year interim designation based on the lower burden of proof. That cannot be renewed. After that period, the relevant authority, in that case the Prime Minister, must decide whether to grant a final designation or to allow the designation to lapse. That acknowledges the important balance required between civil rights and security. It would be interesting to know whether the Government have any information on how that regime has operated in New Zealand and it would be useful if such information as the Government possess might be made available.

There is interest in the Government’s assessment of costs in introducing this regime into the asset-freezing framework. I appreciate that this might be asking for too much, but are there any indications as to what additional costs might be associated with having an interim and final designation scheme?

Finally, I share the view expressed from all quarters of the Committee, including by the noble Baronesses, Lady Hamwee and Lady Falkner, and the noble Lords, Lord Myners and Lord Lester, that further debate on some of these amendments might be useful. I echo the noble Baroness, Lady Noakes, in expressing disappointment about the absence of a review. Again, it would be helpful to have a timeframe that the Minister is confident in telling the Committee about when that review might come.

I draw attention to the point that the noble Lord, Lord Lester of Herne Hill, identified, with his usual acuity, on the recent decision of the European Court of Justice. Plainly this must raise questions about how that Court views the potential for abuse in the system as it is currently proposed. It would be useful to hear what consideration the Government have given to the decision of the Court. I appreciate that the decision is very recent and would not expect any developed appreciation of the judgment.

[Lord Sassoon]

My Lords, I am grateful for the important contributions that we have had to this discussion and for the focused points. I appreciate the remarks from around the Committee in response to the amendments that we have brought forward. On one or two of the procedural points, I apologise if noble Lords believe that our amendments came forward a bit late in the day but, as your Lordships will appreciate, they are fundamental amendments to the Bill and, with the Recess and the summer holidays, it took some time, both within the Treasury and with my colleagues in Government, to ensure that we got them absolutely right. We took the time necessary to do that, but I apologise if it has been a bit of a scramble in the past couple of days.

On the question that a number of noble Lords have raised about the process of amendments to amendments, my understanding, although I am the newest of new boys here, is that amendments to amendments are possible but the reversal of amendments on Report is not. Whatever the construction is, though, I am sure that we will be bound by whatever the conventions of the House are. However, I take the point that there are potentially a number of bits of tidying up. We will come to the individual items, but there are certainly one or two things that I shall take away and reflect on. I take that procedural point.

On the question of the publication of the Home Office review, I can only repeat what I said in my opening remarks—I have no specific date. However, I note the remarks that have been made today, and I will take them away and relay them to my right honourable friend the Home Secretary.

I turn to some of the specific points that have been raised. A number of noble Lords, starting with the noble and learned Lord, Lord Lloyd of Berwick, have made the suggestion that it should be for a judge to make the order rather than a Treasury Minister, with the courts then reviewing the order if it is appealed. I cannot do more than refer to the powerful case succinctly put by my noble friend Lord Carlile of Berriew, who said what I would probably have said at greater length: we believe, given the nature of this regime and the nature of the process that requires Ministers to take account of operational information, that it is appropriate for Ministers to make the initial order, but making that order has to be done on the considerably strengthened tests that we are now proposing and there has to be a concern that the public would be put at risk if the order were not made.

[Lord Lloyd of Berwick]

Will it be open to the Treasury to make an order in a case where it cannot be revealed to the defendant what the case against him is? In other words, is it accepted that the Treasury will be applying the decision in AF?

[Lord Sassoon]

I do not believe that the rules about what evidence can be brought before the court are in any way changed by what we are proposing from the conventions that apply. It relates in some way to the point that the noble and learned Lord made about the nature of the evidence that should be there before an order is made. The noble and learned Lord, Lord Lloyd of Berwick, quoted one Supreme Court justice; I could quote others but perhaps I should not detain the Committee. I might have referred to that at Second Reading. The noble and learned Lord, Lord Rodger, has in some of his remarks expressed a different view about the nature of the supporting evidence in order to support very much a preventive approach to this regime.

[Lord Davies of Stamford]

Following the point just made by the noble and learned Lord, Lord Lloyd, if the Bill were to place the responsibility on the Treasury not to designate but to seek an ex parte decision by a judge to designate, would that hearing not be held in camera? In those circumstances, would it not be possible to provide, for example, evidence from the security services, such as SIS and GCHQ, without any danger to national security?

[Lord Sassoon]

The issue here, as the Government see it, is to get a workable regime that is able to respond flexibly and appropriately and can be a preventive regime. The balance we have struck between a limited period when the evidence can be used to support a ministerial decision on the basis of reasonable suspicion, followed by the reasonable belief with the appeal to the court, is the right one. There are different ways of doing it which would entail various ways of the court looking at it. I come back to the fundamental point—my noble friend Lord Carlile of Berriew has absolutely gone to the heart of this. While we could debate alternative ways of doing it, in striking the balance it is appropriate to have a ministerial decision, with the person designated able to challenge it through an appeal process in the court.

[Lord Davies of Stamford]

The Minister is answering me by saying that the balance is in favour of the Treasury route because it is a more appropriate route, which is slightly circular. Can I establish what exactly it is that the Government feel is in the route’s favour? What are the decisive criteria in favour of taking the route that they suggest? Is it a matter of time? Is the noble Lord suggesting that it is a matter of time because Ministers could take decisions more quickly than a judge could grant an ex parte injunction or designation? If not time, what other specific considerations does the noble Lord have in mind?

[Lord Sassoon]

Ultimately it is the responsibility of the Executive to make these orders. They have the operational information at their disposal. Yes, the orders can be made very quickly. Fundamentally this is an appropriate action power of the Executive, with checks through the courts. That is the way it has operated to date, with the important exception that we are strengthening both the test that Ministers have to apply and the ability to challenge decisions through the courts. I take to heart the words of the noble Lord, Lord Myners, as a Minister who was involved in implementing the regime. He graciously said that the new construct provides a better approach than the one in the previous legislation. I take that very much to heart from a former Minister who is used to making these difficult judgments, which have to be made.

[Lord Lester of Herne Hill]

My Lords, does the Minister accept that this is a highly controversial matter, that I for one have the misfortune to disagree with my noble friend Lord Carlile, and that the Kadi case, for example, about which we hope to hear more, is very much in favour of full judicial protection and full due process of law? I for one wholly agree with the noble and learned Lord, Lord Lloyd of Berwick, and with the noble Lord, Lord Davies. I see no reason whatever why we cannot trust the High Court, with its very sensitive procedures concerned with protecting national security but also personal liberty, with the primary decision to make an order with draconian consequences. I understand the arguments of administrative convenience which are always deployed by the Executive but I for one am not satisfied. I cannot tell whether the Joint Committee on Human Rights will come to a similar view.

[Lord Sassoon]

My Lords, I shall come to the Kadi case although I should note that it does not directly relate to this particular regime. There is a judgment to be made as to what actions are ones for the Executive and what are not. We believe that this measure—it is the way this regime has worked over the years—should be operated by Ministers with the appropriate protections. The word “draconian” has to be used and understood in a particular way. The measure is intended to be draconian in the sense of making a material impact on the ability of terrorists to finance their activities but is not intended to be draconian in the sense that we also have very significant safeguards in the regime through the licensing which allows proper expenditures to be made. Therefore, I do not recognise the word “draconian” in that sense as we ensure, under individual or general licences, that money can be released for the appropriate uses, whether that is to pay legal bills or family expenses and so on.

The noble Lord, Lord Pannick, made some very helpful remarks. As we are also discussing his amendment, I reiterate his endorsement of the broad shape of the regime that we propose in the government amendments. He made three specific points in relation to what we are proposing in Clause 29 and asked detailed questions about whether it should be the same evidence or substantially the same evidence. As I think he recognises, these are fine points which I will take away and consider. On the noble Lord’s point about appropriate notification, I should have thought that if certain people had been notified at the outset, at stage two it would be appropriate to notify the same people, so I am not sure that that needs to be stiffened up. Indeed, I am not immediately persuaded as to what difference the use of the same evidence or substantially the same would make in practice, but I will have a look at that.

My noble friend Lady Noakes talked about the procedural points that I have addressed in the Home Office review. My noble friend asked whether the review will detail the number of interim and final freezes and how many interim freezes had become final freezes. I have little doubt that that will be covered in the review. I am not sure that the implication should necessarily be drawn that if a number of interim orders are made, but they actually fall away, that in any sense suggests that they were improperly made or that the evidence was not properly based. I can quite see circumstances in which interim orders have to be made but, for a number of reasons, could fall away. I take my noble friend’s point about—

[Baroness Noakes]

I probably did not express myself particularly well when I put the point to my noble friend. I was not talking about the work of the independent reviewer, but of the requirement in Clause 24 on the Treasury to make a report. I hear the Minister trying to say that nothing can necessarily be inferred from the relationship between interim and final designations. I am really seeking to make sure that that information will be made available in the public domain, and the report by the Treasury under Clause 24 seems to be the obvious route, not the work of the independent reviewer.

[Lord Sassoon]

I thank my noble friend and entirely take her point that it would be a matter for the Treasury report. I am grateful to her for clarifying that she agrees with me that one could not take a simple implication from a read-across of the number of interim reports that might—we will see whether they do—fall away.

My noble friend Lady Falkner of Margravine asked why there should be a period of 30 days as opposed to any other number of days. There is, as she put it, no particular magic in designating a period of 30 days. One could mount an argument for 14 days or 45 days. Thirty sits in the middle, and it seems a reasonable period. Quite a number of cases have come across my desk and that period seems to strike a reasonable balance. However, there is no magic about it.

As for the experience of other countries, I shall look to see what other experience there is. However, I can say that New Zealand, specifically, has an interim designation which can be made for 30 days on the basis of suspicion and a final designation which requires reasonable belief. New Zealand was mentioned in a question from the noble and learned Lord, Lord Davidson of Glen Clova. Regrettably, I met New Zealand’s Deputy Prime Minister yesterday—if the meeting was tomorrow, I could ask him the question. However, the review here operates in a different way, and we also have the regular review which Treasury Ministers have to make. Our regime is different from New Zealand’s, and we have a separate safeguard, the regular review, which is also subject to appeal to the court.

The noble and learned Lord made a couple of points about resource pressures and additional costs. I have no reason to believe that there will be significant additional costs or resource pressures. Perhaps linked to that, the noble Lord, Lord Myners, asked about fishing trips. He said that it was a churlish point, but I would not say so. It is important to question whether there will be fishing trips. I have absolutely no reason to believe that the new regime as proposed will lead to fishing trips. A series of serious tests have to be applied and that includes protection of the public. This is linked to the resources point. Resources will not be significantly increased, because nothing in the proposals will allow Ministers to go off on fishing trips.

Perhaps the last point left hanging concerns the Kadi case. The first thing to say is that the case does not impinge directly on the legislation that we are looking at. The latest judgment annuls the EU regulation and the listing under it dating back to 2001 as it applies to Kadi, but there is a suspension of the judgment for two months and 10 days to allow time for an appeal to be made to the Court of Justice. If an appeal is lodged, it is likely to take 18 to 24 months. I expect that the Foreign and Commonwealth Office will press the Commission to appeal the decision; so the case has a long time to run. Of course, if the judgment were upheld, it would set our EU obligations squarely against our UN obligations, which would present a difficulty: but it is not a difficulty that impinges directly on the Bill.

[Lord Lester of Herne Hill]

I am sorry to interrupt my noble friend the Minister, but he is putting his own gloss on the judgment. He says that it puts us at odds with the United Nations regime, but am I not right in saying that the European Court was at pains not to put itself at odds with the regime, but to insist upon safeguards in administering the regime?

[Lord Sassoon]

My Lords, I am reluctant to get too far into the details of the Kadi case. As the noble and learned Lord, Lord Davidson of Glen Clova, said, this is a recent and complex judgment that may be appealed and does not have a direct bearing on the Bill. I hope that we can now pass on, but appreciate that we may need to come back to this in the House in future.

I think that I have picked up most of the material points. The last one is the question of what happened to the printed copy of the Treasury’s human rights memorandum. I will go back and make sure that the memorandum is available. I do not know where it has got to in the paper trail, but I will find out, and I look forward to seeing the conclusion of the Joint Committee on Human Rights on the Bill and discussing this further on Report. That is a further important step as we scrutinise the Bill.

I will ask the noble Lord, Lord Pannick, not to press his amendment but to support the government’s amendment.

Amendment 1 agreed.

Moved by

[Lord Sassoon]

2: Clause 2, page 1, line 16, leave out “have reasonable grounds for suspecting” and insert “reasonably believe”

--- Later in debate ---

[Baroness Falkner of Margravine]

My Lords, it is the term “the real world” used by my noble friend Lord Carlile that provokes me to speak. He may well agree—academic pursuits and all that set aside—that because of my background, if for no other reason, I have some understanding of this particular real world and the people involved in it. The concern, particularly for me, is that an interim designation that is based on reasonable suspicion followed by such a broad inference of what kind of suspicion might lead to what kind of involvement is very wide indeed. We will catch an awful lot of people for no reason at all. I am talking about communities where large numbers of family members live together. Such communities are tight-knit and a lot of support is given to each other, often simply on the basis of familial, religious or community loyalty. The people in these communities, particularly the women, will, often in good faith, do something that is asked of them without seeing what it might lead to. The idea that they will be cognisant of and understand reasonable suspicion enough as a test and the level of involvement as another test and try not to commit those offences is asking rather a lot on frail grounds. Will the Minister reconsider this and the exhortations of my noble—and extremely knowledgeable—friend Lord Carlile that we need to be extremely careful in this regard?

[Lord Sassoon]

My Lords, let me attempt to deal with this. I certainly feel that I live in the real world in that I have to make such decisions regularly. One limb of the test that has not been stressed in this discussion but which is absolutely critical to it is that the legal test for freezing assets has the second limb that the Treasury must also conclude that a designation is necessary for public protection. That is the critical safeguard on how the power to freeze assets is used. There can be very fast-moving situations, as described by my noble friend Lord Carlile of Berriew, when the exact nature of each person’s role in a plot is not immediately clear. It would be a significant restriction on the regime’s ability to operate in the preventive way that is necessary for public protection if we were to exclude those who might be involved in the broader commissioning, facilitation and support of terrorist activity.

My noble friend instanced the case of people who may be sitting on money. It is essential that the definition is not restricted in the way that Amendments 4 and 8 propose if it is to be effective. As the plot is disrupted, the exact nature of people’s role will become increasingly clear. It will become clear who is a “bystander”, to use the word of my noble friend Lady Hamwee. I think that the two-stage framework that we will now have in place, combined with the requirement for Treasury Ministers to conclude that the designation is necessary for public protection, deals with the point.

[Lord Elystan-Morgan]

I am most grateful to the Minister for giving way. I accept of course that there has to be very wide discretion, which is allowed to the authorities in these two provisions, subsections (1) and (2). However, at the end of the day, one has to ask: what is the target area? Reasonable suspicion is perfectly understandable. It is something with which the authorities have to deal day in and day out. The question is: what is the target area? Is it a person who has been criminally involved to some degree or another as a principal in the first or second degree or as an aider, abetter, counsellor or procurer, or is it wider than that and, if so, how much wider? In other words, what is the end product that one is being reasonably suspicious of?

[Lord Sassoon]

I am grateful to the noble Lord, Lord Elystan-Morgan, but I must reiterate that we are trying here to achieve the protection of the public against active, live terrorist attacks. In order to do that, Ministers need to be able to exercise immediate discretion to stop the flow of money—as we know, very small sums of money can create enormous disruption. Ministers must have appropriate powers to disrupt the terrorist threat. That means that it is important that the freezing net is drawn so that those who are involved in supporting or facilitating the activity are caught in it, but, as the evidence becomes clearer, the Treasury must be concerned at all times that the designation is necessary for public protection. Where an individual may have been part of a wider group that is involved in terrorist activity but where it has subsequently become clear that the individual’s involvement was purely incidental and that they themselves were not supporting or facilitating terrorism, it would be difficult to demonstrate that a freeze was necessary for public protection. Freezes cannot be imposed or maintained unless the second limb of the test is met.

I return to the analysis by my noble friend Lord Carlile of Berriew. I believe that protections are in place and that we must not forget that second limb. For those reasons, I hope that, on reflection, my noble friend will be prepared to withdraw her amendment.

[Lord Pannick]

Before the Minister finishes, is he prepared to give the assurance that the concept of being involved must connote some culpability, some knowledge—some recklessness, at least—and that a perfectly innocent person caught up in events would not be covered?

[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.

--- Later in debate ---

[Baroness Noakes]

I have one question in connection with Amendment 51 in the name of the noble Lord, Lord Davies of Oldham, which seeks to insert “grant” into Clause 13. He suggested that the Bill did not contain any power for the Treasury to grant a licence. Could he say whether there is any other way of reading Clause 13, other than as saying that the Treasury may be able to grant a licence?

[Lord Sassoon]

Let us deal with that point. I am advised that Clause 13 gives all the power that is necessary to grant a licence. I am grateful to the noble Lord, Lord Davies of Oldham, for trying to help the Government by making sure that the power is in the Bill. However, I am assured, and my noble friend Lady Noakes confirms this, that Clause 13 grants that power.

I will address Amendments 7 and 10 more generally. There are some important issues here. Although the noble Baroness, Lady Falkner, did not spend long speaking to her amendment, she made an important point. These two amendments would clearly require the Treasury, when deciding whether to designate a person, to consider the UK’s international obligations to prevent terrorism. The Treasury would also be required to consider the humanitarian needs of persons affected by designations, including which licences should be granted immediately after the designated person is notified. The key international obligation is United Nations Security Council Resolution 1373, which requires all UN member states to freeze the assets of terrorists and prevent their nationals and persons within their jurisdictions making funds, resources or financial services available to them. However, it is left to individual member states to decide to whom the measures should be applied. The Government recognise that a decision to designate someone has a significant impact on their human rights. It is for this reason that designations can be imposed only where they are necessary to protect the public from a risk of terrorism.

It may be helpful if I explain the process that the Treasury goes through when designating someone. Decisions as to persons who should be subjected to terrorist asset freezes are informed by law enforcement and intelligence agencies, which prepare statements of case setting out the material that gives rise to a reasonable suspicion or belief that the person is or has been involved in terrorist activity, and why the freeze is necessary for public protection. When submitting their recommendations, law enforcement and intelligence agencies also provide a risk assessment framework to inform immediate licensing decisions by the Treasury, and ensure that designated persons are not deprived of access to funds immediately after designation and before the longer-term licensing needs of the person can be addressed. That is also informed by the risk assessment framework. Treasury officials and lawyers then scrutinise the statements of case and make recommendations to the Minister on how to proceed. Where a designation is envisaged, this will include recommendations on immediate licensing needs, in accordance with basic principles of good governance, to ensure that a designated person’s basic needs can be met.

It is important that the asset freeze is applied in a proportionate manner—managing the risk of funds being used for terrorism while ensuring that the human rights of the designated person are protected and that third parties are not adversely affected by the freeze. For this reason, several general licences have been issued—for example, to authorise legal aid to be made available for designated persons and to enable them to take out insurance. We have also made clear in Clause 12(3) that the payment of social security benefits to spouses is not caught by the prohibitions, even when they are made in respect of the designated person. Designated persons can also contact the asset-freezing unit to seek additional licences and to make additional representations in relation to their designation or licensing arrangements at any time.

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[The Archbishop of York]

My Lords, I do not want to detain the House. I am one of those who has been anxious about designation without involving the judiciary. I am very grateful for Amendment 7 in the names of the noble and learned Lord, Lord Davidson, and the noble Lord, Lord Davies, because, as a probing amendment, it has produced from the Minister a statement on the context in which these decisions are taken. I know that it will be in Hansard, but can a copy of what he has said to us about the Treasury taking these decisions and the responsibilities it takes be put in the Library? People could then look at that and refer to it. I am one of those who now thinks it is right that the Executive should take the decisions and the judges should then look at them. Therefore, I welcome Amendment 57, because the matter has been made clearer by the wonderful probing amendment. Without it, I was still living in a fog.

Perhaps I may end on why this clause should be part of the Bill. On page 10 of his wonderful book, The Rule of Law, the noble and learned Lord, Lord Bingham, quotes Magna Carta. I love his translation, because the old language is pretty difficult. He refers to the terms of chapters 39 and 40, which state:

“No free man shall be seized or imprisoned or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land”.

If the law of the land does it, that part of Magna Carta is right. It continues:

“To no one will we sell, to no one deny or delay right or justice”.

I thought that I heard the Minister tell us what the Treasury does. I am comforted and I should like that description to be placed in the Library.

[Lord Sassoon]

First, I should say that I am grateful to the most reverend Primate. If we have managed to raise a bit of fog through the combination of a probing amendment and a bit of detail from me, and be reminded that we are meeting part of the test in Magna Carta, we will have spent a worthwhile hour or so. He also answered rather eloquently part of the further challenge from the noble Lord, Lord Davies of Stamford, on whether it should be the responsibility of the Executive or the courts to issue the order. I do not know whether the noble Lord is still looking for an answer. He partly answered the question himself, because I was going to start by reminding him that indeed it was the previous Government who operated the regime in this way. It was the Bill passed by this House which became an Act in February—

[Lord Davies of Stamford]

I quite understand that the noble Lord is trying to tease me in this way and he is welcome to do so, but I am not asking for an ad hominem response to this point; I should like a substantive response, please.

[Lord Sassoon]

I will try briefly to help the Committee. There is a judgment to be taken in many areas where the Executive exercise authority that could be handed over to other people; the courts might be one place to which it could be handed over. However, I fundamentally believe that actions and decisions to prevent the commission of acts of terrorism, as the noble Lord points out, often must be taken under very considerable pressure of time and require fine judgments of operational matters which, as I have attempted to describe, involve the intelligence and law enforcement agencies. The combination of the flow of information, the time required and the complexity of decisions is suited to decision-making by the Executive, subject to the important safeguards of the courts. I do not know what more I can do, other than say to the noble Lord that I absolutely agree that some of the speed and operational considerations that he raises are ones that make these decisions a proper function of the Executive.

I will also say that I do not accept the word “catastrophe” if it relates to somebody who is reasonably suspected or believed to be involved in a way that leads to the freezing of their assets, subject to the safeguards. We have put in place licensing provisions, and I explained at some length how those are operated right from the start of the designation. Of course it is a serious matter to freeze somebody's assets, but when we talk about the balance against protecting the public against terrorist acts, we should be careful about using “catastrophe”, given the nature of the threat on the one hand and the protections that I have described on the other.

I will move on swiftly to the question of piracy, kidnapping and hijackers. Of course the Government take all these matters extremely seriously. In so far as they are linked to terrorism, as defined in the way that the noble Lord has set out, they will come within the provision of the Bill; but often piracy, kidnapping and hijacking will be independent of terrorism and so not the proper province of the Bill. However, this absolutely does not mean that the Government do not take this seriously, particularly the question of ransom payments. We do not encourage the payment of ransoms. There is a range of other ways, for example through the money-laundering rules, in which aspects of the transmission of illegal money are dealt with, and the Government continue to keep under review all these matters. I suggest that, although it is important that they are raised, they go beyond not only Clause 2 but the Bill itself. I ask the Committee to agree that Clause 2 should stand part of the Bill—

[Lord Davies of Stamford]

I am grateful to the noble Lord for giving way at the last minute. I take note of the fact that obviously we are all reassured that the Government do not actively encourage the payment of ransoms and that they take the matter very seriously. However, if the problem is so serious—and the noble Lord agrees that it is serious—we should do something about it. The Government, after the election, now have a responsibility to do something. I would be grateful if the noble Lord will give an undertaking to the Committee that he will discuss with his colleagues what might be done, either legislatively or by use of executive power, to inhibit the payment of ransoms, or at least look again to see what could be done more effectively to make these activities less cost-free and risk-free to the terrorists.

[Lord Sassoon]

Of course I am happy to take back to my colleagues the noble Lord's concerns, but I reiterate that they are not ones that have a direct or even indirect bearing on the Bill. However, I will relay them to my colleagues.

Clause 2, as amended, agreed.

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Moved by

[Lord Sassoon]

11: Clause 3, page 2, line 23, leave out “designate” and insert “make a final designation of”

--- Later in debate ---

[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—

[Baroness Falkner of Margravine]

I apologise to my noble friend for interrupting him in mid-flow, but I wanted to capture his previous sentence. As I understand it, there is nothing to prevent the Treasury from advertising on its website if we substitute the word “must” for “may”. The Treasury may still do so—and, I am sure my noble friend agrees, must do so—but we do not need the word “must” here.

[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.

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Moved by

[Lord Sassoon]

15: Clause 4, page 3, line 2, after “A” insert “final”

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Moved by

[Lord Sassoon]

18: Clause 4, page 3, line 4, after “a” insert “final”

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[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.

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Moved by

[Lord Sassoon]

25: Clause 5, page 3, line 17, after “a” insert “final”

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Moved by

[Lord Sassoon]

27: Clause 5, page 3, line 18, after “a” insert “final”

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Moved by

[Lord Sassoon]

29: After Clause 5, insert the following new Clause—
“Treasury’s power to make interim designation
(1) The Treasury may make an interim designation of a person for the purposes of this Part if—
(a) they reasonably suspect—(i) that the person is or has been involved in terrorist activity,(ii) that the person is owned or controlled directly or indirectly by a person within sub-paragraph (i), or(iii) that the person is acting on behalf of or at the direction of a person within sub-paragraph (i), and(b) they consider that it is necessary for purposes connected with protecting members of the public from terrorism that financial restrictions should be applied in relation to the person.(2) Subsections (2) to (4) of section 2 (Treasury’s power to make final designation: definitions) apply for the purposes of this section as they apply for the purposes of that section.
(3) The Treasury may not make more than one interim designation of the same person in relation to the same evidence.”

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Moved by

[Lord Sassoon]

33: Clause 6, page 3, line 24, after “3(4)” insert “or (Notification of interim designation)(4)”

--- Later in debate ---

[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]

Lord Sassoon Excerpts

Wednesday 6th October 2010 Lords Chamber

[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.

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Moved by

[Lord Sassoon]

57: Before Clause 22, insert the following new Clause—
“Appeal to the court in relation to designations
(1) This section applies to any decision of the Treasury—
(a) to make or vary an interim or final designation of a person,(b) to renew a final designation of a person, or(c) not to vary or revoke an interim or final designation of a person.(2) The designated person concerned may appeal against any such decision to the High Court or, in Scotland, the Court of Session.
(3) On such an appeal, the court may make such order as it considers appropriate.
(4) The making of an appeal under this section does not suspend the effect of the decision to which the appeal relates.”

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Moved by

[Lord Sassoon]

58: Clause 22, page 11, line 9, at end insert “other than a decision to which section (Appeal to the court in relation to designations) applies (appeal to the court in relation to designations)”

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Moved by

[Lord Sassoon]

63: Clause 22, page 11, line 17, leave out subsection (5)

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Moved by

[Lord Sassoon]

64: Clause 23, page 11, line 24, after “on” insert “an appeal under section (Appeal to the court in relation to designations), or”

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[Baroness Falkner of Margravine]

The report by the Constitution Committee, of which the noble Lord, Lord Pannick, and I are members, recommended that there should be consolidation of the legislation. I think there are two other Acts that relate to terrorist-asset freezing regimes. Will the Minister tell us his views on that consolidation?

[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.

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[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.

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Moved by

[Lord Sassoon]

82: Clause 36, page 18, line 23, at end insert—
““final designation” means a designation under section 2 (including any renewed such designation);”

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Moved by

[Lord Sassoon]

84: Clause 40, page 20, line 17, after “a” insert “final”

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Moved by

[Lord Sassoon]

89: Clause 47, page 23, line 18, leave out “amendment” and insert “amendments”

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Moved by

[Lord Sassoon]

92: Schedule 1, page 25, line 5, at end insert—
“Rules of the Court of Judicature (Northern Ireland) 1980 (S.R. 1980 No.346)ZA1 The Rules of the Court of Judicature (Northern Ireland) 1980 are amended as follows.
ZB1 In the Arrangement of Orders, in the entry relating to Order 116B, after “2008” insert “and Part 1 of the Terrorist Asset-Freezing etc. Act 2010”.
ZC1 In Order 1, after rule 11(l) insert—
“(la) proceedings on an application under section 22 of the Terrorist Asset-Freezing etc. Act 2010, or on a claim arising from any matter to which such an application relates;”.ZD1 In Order 116B—
(a) in the title of the Order, at the end insert “and Part 1 of the Terrorist Asset-Freezing etc. Act 2010”,(b) in rule 1(2)(a), after “the”, in the first place in which it appears, insert “2008”,(c) after rule 1(2)(a) insert—“(aa) “the 2010 Act” means the Terrorist Asset-Freezing etc. Act 2010;”,(d) in rule 1(2)(b), after “the” insert “2008 Act or section 22 of the 2010”,(e) in rule 1(2)(c) for “has the same meaning as in section 65 of the Act” substitute “means—(i) financial restrictions proceedings within the meaning of section 65 of the 2008 Act; and(ii) proceedings in the High Court on an application under section 22 of the 2010 Act, or on a claim arising from any matter to which such an application relates”,(f) in rule 1(2)(h), for “Act” substitute “2008 Act (including that section as applied by section 23(4) of the 2010 Act)”,(g) in rule 4(3)(a)(ii), after “the”, in the first place in which it appears, insert “2008”,(h) in rule 5(1) after “2008”, insert “, or section 22 of the Terrorist Asset-Freezing etc. Act 2010, as the case may be,”,(i) in rule 36(1), after “the” insert “2008”, and(j) in rule 36(2), after “the” in the second place in which it appears, insert “2008”.”

--- Later in debate ---

Moved by

[Lord Sassoon]

94: In the Title, line 2, leave out “suspected of involvement” and insert “believed or suspected to be, or to have been, involved”

[Lord Sassoon]

My Lords, I shall be brief. We have had a good and important discussion in Committee today. One of the most important things we have done is to change the legal test in the Bill, and Amendment 94 gives effect to or reflects that change in the Title of the Bill. I hope the Committee will think that it is an appropriate and fitting summary and conclusion of the debate we have had today. I beg to move.

Amendment 94 agreed