Immigration Bill

Debate between Lord Wallace of Tankerness and Baroness Hamwee

Tuesday 1st April 2014 Lords Chamber

[Baroness Hamwee]

My Lords, I was not sure whether to speak yet; I was looking for a Bishop. Amendment 14 in this group is in my name and that of my noble friend Lord Avebury. I have been torn over this issue. Of course, the lawyer in me wants to see access to the courts or tribunals but the pragmatist in me says, “Get it right first time”, especially when it is something where arguably the person involved does not start with having rights. I distinguish between human rights interests, family interests and, at the other end of the spectrum, perhaps permission to come and work in a different country. At issue here is a very wide range of types of decision. Also, of course, the pragmatist says, “Find ways to improve the process to get it right”.

I have to assume that the Secretary of State is satisfied on the basis of the current out-of-country process that what is proposed will be “efficient”, “effective” and “fair”—in the words of one of the amendments. I hope that effectiveness always means fairness. I do not know that one can become satisfied that the process is efficient, effective and fair on the issue raised by the possibility of shadow working and the two systems working in parallel. I know that there are different views about that. Frankly, I doubt that it is practicable. At the previous stage, I raised the issue of reviews of procedures and—particularly important to me —independent oversight and reports to Parliament. I welcome government Amendment 12. Could my noble friend confirm, because it does not quite say this, that what is intended is a report on the first year? It says that, “Before the end of” a year the Secretary of State will commission a review.

My Amendment 14 would introduce a two-stage process, the second of which would be the chief inspector reviewing the first year of operation, and the first of which would be an opportunity for Parliament to consider the procedures after the Government have consulted on them. I am grateful to my noble friend for a letter that I received following Committee and which was copied to other noble Lords. I hope that this will be a useful opportunity for him to explain from the Dispatch Box the Government’s proposals for consultation on the proposed rules—a targeted consultation, as I understand it. There might be, if you like, a pre-consultation of noble Lords as to who might be involved in that process. I am sure we would all have ideas as to who could usefully contribute.

Since Committee, I have seen the information given to those who seek an administrative review out of country under the current procedure. I had been concerned about how representations could be made to the reviewer and what representations could be made. I can infer that from the current information but I am sure that there is scope for spelling it out more clearly. That is a matter for the practitioners, really. I was also relieved to see information on something that had popped into my head and bothered me a lot: whether there would be a charge for an administrative review. I see that that is not the case. That reminded me that this is another reason for the Home Office getting it right first time, as it will not be able to get any income from that administrative review. As it were, it funds it—rightly—from its internal resources.

[Lord Wallace of Tankerness]

My Lords, as the noble Baroness, Lady Smith, indicated, we debated this matter at some length in Committee. We will necessarily go over some of that ground again but I appreciate the opportunity to do so and to inform the House why we believe that it is helpful and a positive development that we should move to this system of administrative review.

Obviously, the noble Baroness’s Amendment 11 would remove Clause 15 from the Bill. In doing so, it would retain the current appeals system, which we believe is too complex and does not provide the most appropriate and effective remedy in each case against refusal decisions. I understand the reservations that have been expressed here—we rehearsed a number of the issues in Committee—about decision quality in immigration cases. First, it is again important that those concerns are seen in context. As I said—and as was once said back to me—the great majority of decisions are not refused in error. The majority of applications are successful. The noble Baroness quoted me on that. Of decisions taken in the United Kingdom, only 10% were refused in 2012. Therefore, when the majority are successful, it is not about an absence of appeals. The noble Baroness asked if some of these decisions had been wrong, too. I suspect we will never know because people tend not to appeal against decisions when they have been successful. Some 51% of that 10% that were refused in 2012 succeeded on appeal. Therefore, 5% of the total decisions taken succeeded on appeal. Of that 5% of decisions, 60% succeeded because an error was made. By my calculation, we are down to 3% of all decisions in managed immigration cases being attributable to an error.

We believe that retaining the current system, as would be the consequence of the noble Baroness’s amendment, would not improve decision quality. It would mean that people continued to wait longer and incur more expense for errors to be corrected than under the system established by Clause 15. Under Clause 15, where a claim based on a fundamental right is refused—I think we heard about some of those under the previous amendment—it can be appealed and the fundamental rights are set out in the Bill. It is right that a full-merits appeal should be available for these cases. Where the claim is not based on fundamental rights, we can indeed show that 60% of cases that succeed on appeal do so because of a working error. It is also worth reflecting that the kinds of cases we tend to deal with are those that are a matter not of judgment but of the application of objective rules. If the rules are met, leave is granted. If they are not met, leave is refused. That type of decision is well amenable to administrative review. As the noble Baroness said, the process will be quicker and cheaper than an appeal.

Immigration Bill

Debate between Lord Wallace of Tankerness and Baroness Hamwee

Wednesday 19th March 2014 Lords Chamber

[Lord Wallace of Tankerness]

I am advised that it is not correct that this Bill means that leave does not continue where an application has been made in time. I think there is a double negative in there. My understanding is that Section 3C of the Immigration Act 1971 provides that where someone makes an application for further leave while they have existing leave and that the existing leave expires before the application for further leave is decided, their existing leave is extended on the same terms until that further application is decided and any appeal against its refusal is no longer pending. That is the existing position. Section 3D of the 1971 Act makes the same provision where someone has existing leave which is revoked, extending leave while they can appeal against the revocation. Schedule 9 to this Bill amends Sections 3C and 3D so that they extend leave also while an administrative review can be brought or is pending. I hope that is helpful. No doubt the noble Baronesses will want to consider it. I think that is the accurate position.

Nothing in the Bill prevents people making protection or human rights claims. We are committed to protecting such fundamental rights but equally, as has been explained on numerous occasions in Committee, we also seek to prevent abuse of the system and to create an improved process. Our concern is that the amendment that my noble friend has moved would undermine both these aims.

Extending leave because a protection or human rights claim has been made following an unsuccessful administrative review would create a strong incentive to make such claims. This would undermine the greater efficiency of the appeals framework in this Bill. There would be an advantage in making a protection or human rights claim just before leave extended under Section 3C of the Immigration Act 1971 expired, even after an appeal at the First-tier Tribunal has been decided. This would create a sequential process where the further claim and any appeal are considered after the other claim has been decided rather than at the same time. It would mean that leave is extended on current conditions for a worker, even when that worker has first sought an extension of leave as a worker and then decides he no longer wants to be in the UK to work but rather wishes to claim asylum. We do not believe that that consequential inconsistency is right.

Inserting new Section 3F into the Immigration Act 1971, as proposed by Amendment 87ZA, would create duplication. Existing Section 3D of the 1971 Act already provides that where leave is revoked, the leave will continue while any appeal against revocation is brought.

I wish to make the important point that, as I said at the outset, there is nothing in the Bill that seeks to stop or prevent people making protection or human rights claims. The Home Secretary will consider and decide any human rights claim made to her and will not remove any person while that claim remains undecided, irrespective of whether they have leave. I hope that is a reassurance that there will not be a removal while a claim remains undecided.

Amendment 87ZE queries the necessity of a consequential appeals amendment. We believe that the consequential amendment is necessary. Schedule 9 repeals the provision establishing a monitor for entry clearance cases with a limited right of appeal. This monitor role is now performed by the independent chief inspector under Section 48 of the Immigration, Asylum and Nationality Act 2006. However, the Bill provides that there will no longer be any entry clearance cases with a limited right of appeal, and therefore Amendment 87ZE would retain an otherwise redundant provision.

With regard to Amendment 87ZF, the Bill simplifies the appeals framework and removes “not in accordance with the law” and “different exercise of discretion” as grounds on which appeals can be brought. Amendment 87ZF would reinstate these as reasons for allowing an appeal, although they are not grounds on which an appeal can be brought. Noble Lords will recall from when we debated Clause 11 that the grounds of appeal under that clause are that a decision breaches the UK’s obligations under the refugee convention to those entitled to humanitarian protection, or is unlawful under the Human Rights Act. These are the relevant grounds for challenging refusals of protection or human rights claims, and, in considering them, the tribunal is considering whether the decision was in accordance with the law. That is the important point in the appeal. Similarly, the UK’s obligations to asylum seekers entitled to humanitarian protection or under the Human Rights Act are not discretionary. There is therefore no exercise of discretion for the tribunal to consider in those appeals that come before it.

I hope that in the light of this explanation and these reassurances, my noble friend will feel able to withdraw her amendment.

[Baroness Hamwee]

My Lords, it would be foolish of me to try to continue the debate at this point. I obviously need to read—probably several times—what my noble friend just said and to consider it with those who are far more familiar with the whole raft of immigration legislation than I am. I beg leave to withdraw the amendment.

Immigration Bill

Debate between Lord Wallace of Tankerness and Baroness Hamwee

Wednesday 5th March 2014 Lords Chamber

[Lord Wallace of Tankerness]

I am afraid that I do not have a figure for that further subcategory. If it exists, I will make sure that I inform the noble Baroness and others who have taken part in this debate, and will put a copy in the Library. That certainly could help to inform the debate as I am sure this issue may well arise later in our deliberations. All staff undertaking administrative reviews will receive full training in all routes and categories before they commence their work as part of the review team. I believe that the statement of intent indicated that it is intended to have a separate dedicated team of reviewers in each specialist area. Regular reports on the performance of the administrative review process as a whole will be sent to senior management. We will establish feedback mechanisms to ensure that lessons learnt are fed back to case workers.

I think I indicated in our debate on Monday that, within a year of the administrative review process being established, the Home Secretary will ask the independent chief inspector to include a review of the administrative review process in his inspection plan. Again, it is important to remember that the procedure will be set out in rules that Parliament can scrutinise. As I have said, we have committed to an independent oversight by the chief inspector in the public statement of intent that I have just read out. He has the power to undertake an inspection off his own bat and may do so if there are concerns about the administrative review process. His reports are published and Parliament may hold the Government to account in respect of those reports by means of questions and debates. Having to meet these additional requirements may also, if we were to go down the road proposed by my noble friend Lady Hamwee, delay the commencement of Clause 11. She quite properly said that there might be certain attractions in having two systems running in parallel, although I suspect that that would be a bureaucratic nightmare and would not properly serve the interests of anyone, least of all the applicants.

The delay in commencement is undesirable because it would delay migrants who would benefit from these changes, which would provide faster and cheaper resolution of caseworking errors. This delay could arise because the Home Office needs to identify an independent person who could take on the role envisaged in this amendment. This would also add an administrative layer to the development and operation of the administrative review. It is envisaged that the chief inspector would take on this role, a point that I already have made. We intend to benefit appellants and those who will no longer have a right of appeal under Clause 11. My noble friend Lady Hamwee proposes that it should lapse in five years unless there is parliamentary approval for it to continue in force, which I feel would not be of benefit.

Clause 11 fundamentally reforms appeal rights. It is a reform that is needed to simplify an overcomplex framework and to provide a faster and cheaper remedy for caseworking errors. However, because this reform is fundamental, reversing the change after five years could cause even further upheaval. The changes made to the appeals process and the court system would need to be undone. That could come not only at cost but also at the expense of considerable uncertainty.

My noble friend Lady Hamwee also made reference to the administrative review system that is already operating overseas. Some 90% of these reviews have been completed within the target of 28 days for the quarter ending June 2013. The proposed process for in-country, which we are debating here, mirrors the approach taken overseas. My noble friend also made the point that we are asking people to reverse the decision of their work colleagues and, as she quite properly put it, to overturn the decision of the Secretary of State. She mentioned the figures, including that in entry clearance cases in 2012 for operating overseas the initial decision was overturned in 21% of cases. I sometimes think that in this area you are damned if you do and damned if you do not. The figure of 21% is a sizeable number, which suggests that those who are doing the review are not necessarily intimidated by having to overturn the Secretary of State’s decision. Equally, one might say that 21% is far too high and that the figure should be lower, in which case they may say that they were frightened. The point is that the system that has been operating overseas has had 90% of cases completed within the target of 28 days. It shows that those who are doing the reviews are not scared off or hesitant in overturning decisions when mistakes have been made.

I recognise that there are concerns and I suspect we will return to this and that amendments will be tabled on Report, which will offer us a chance to reflect further on the points that have been made both today and on Monday. However, I believe that what we are putting in place will bring considerable simplification and lead to quicker and cheaper decisions. Therefore, for the reasons I have given on some of the detail but also because of the delays that could take place, the fact that there will be an opportunity for noble Lords to scrutinise the rules that will be put in place and because the chief inspector will be able to conduct his own review, I invite my noble friend to withdraw her amendment.

[Baroness Hamwee]

My Lords, I suppose that if the chief inspector will have added to his workload checking to see if and how anyone is damned, one question he may be asking privately is what extra resources there will be for that. I take the point about the rules, which now have to be in the form of an order, being an opportunity for scrutiny. However, as we all know, one cannot amend an order. I also need to ask, although I do not expect my noble and learned friend—

[Lord Wallace of Tankerness]

If I am wrong I will correct this, but my understanding is that if Parliament does not support the order when it is scrutinised, the Secretary of State is obliged to lay new rules within 40 days. It does not annul the rules but new rules have to be promoted within 40 days.

[Baroness Hamwee]

I am grateful for that. I do not think that it negates the question that I am about to ask, although my noble and learned friend may not be able to answer it at this point. It is about opportunities to feed into the draft rules before they come into final form. It is clear that there are a lot of points that could be constructive and helpful, which do not oppose the policy but come from the experience that so many people have of similar forms of process. What opportunity will there be to feed into the construction of the rules?

Also, how much detail will there be in the rules when they are proposed? The statement of intent, which to my mind raises some questions—I asked one or two of them—is probably more detailed than the rules. Anyway, as my noble and learned friend says, we may well return to this whole issue. Therefore, for today, I beg leave to withdraw the amendment.

Immigration Bill

Debate between Lord Wallace of Tankerness and Baroness Hamwee

Monday 3rd March 2014 Lords Chamber

[Lord Wallace of Tankerness]

I did not seek to dismiss this as a statistical matter. I sought to put it into some kind of context: that over the period we have been talking about the drop was less than 3,000, and other countries saw a drop as well. The important point, which I will repeat, is that this country welcomes the brightest and best and there is no limit on the number of overseas students who can come to study here.

My noble friend asked whether students who receive visas go on to use them. All genuine students who qualify will be issued with a visa for the United Kingdom but of course they may ultimately decide to study elsewhere. I know that it may be of interest to my noble friend how many students may go to the trouble of applying for a UK visa and then choose not to travel, but I regret that that information is not available to the Government. I am afraid we cannot meet all her requests but a substantial number of the things that she was seeking in her amendment are already there.

[Baroness Hamwee]

My Lords, I accept that and I knew that much of what I was seeking was already published. My amendment tried simply to paint the whole story. I accept that some of the painting by numbers cannot be filled in.

A few minutes ago my noble and learned friend said that there is a good story to tell. My short point is: we need to tell it. It seems that we are not telling it and I would like to find a mechanism to get it told. I passed my noble friend Lord Clement-Jones a copy of the Home Office press release that I printed off on Friday. If I were a journalist it would not tempt me to write the good story.

Terrorist Asset-Freezing etc. Bill [HL]

Debate between Lord Wallace of Tankerness and Baroness Hamwee

Monday 25th October 2010 Lords Chamber

[Lord Wallace of Tankerness]

My Lords, as my noble friend is aware, provisions within the Bill allow for a decision not to issue a licence with suitable conditions to be challenged. If I may say, this is a circular argument—how do you get the funding to challenge it?—but it is not without remedy.

I was asked whether there would be any restriction on the volume of funds. If the funds are required specifically for the purposes that the noble Lord, Lord Pannick, indicated, that would not lead to a restriction. This is best dealt with, and would be dealt with, on the basis of an individual licence application. Obviously, there would be a remedy there if the person was not satisfied with the terms of the licence that was issued.

The other amendment to which my noble friend spoke relates to the position under Clause 27 for a person affected by a Treasury decision other than a designation-related decision to apply to the court not only for the decision to be set aside but for it to be varied. The amendment would in particular allow decisions relating to licence conditions—the very issue that I have been discussing with my noble friend Lord Lester—such as limits on the amount of cash a designated person could access per week to be varied by the court. The Government agree that the court should have sufficient powers to require the conditions of a licence to be varied so as to ensure that the designated person has sufficient access to funds and economic resources subject to appropriate conditions, but we also believe that the amendment is unnecessary.

Under Clause 27, the court can set aside any licence-related decision made by the Treasury. For example, if the court considers a designated person should be entitled to access a larger amount of cash per week than he is permitted to withdraw under the cash limit in the licence, the court can set aside the Treasury’s decision to impose that cash limit. While it would not be open to the court expressly to write conditions into the licence or rewrite existing conditions, the Treasury is obliged to take into account the reasons that the court gives for striking down a condition in the licence. In practice, the Treasury has immediately revised licences, taking account of the court’s view on what the licence should contain. Therefore, I hope that my noble friend will not press her amendments on the assurance that these are matters not just of good practice but of obligation, which the Treasury obviously takes very seriously.

[Baroness Hamwee]

My Lords, with that last comment, my noble and learned friend anticipates my saying that I would not wish to see this matter rest on practice but that it is a matter of obligation.

I understood my noble and learned friend to say that a licence to use funds for legal advice or representation is in part to protect the banks. I find that difficult to follow, because I am asking for a licence; I am not asking for the banks to be allowed to release funds simply on the say-so of the designated person or third party that this is the use to which the funds would be put. I make that point quite seriously, although I will not ask my noble and learned friend to come back on it if he does not want to at this point. However, which article or articles does he rely on with regard to subsistence costs? The right to a fair trial leads one very directly to the point of legal advice and representation. It is probably, although I do not want to put words into the Government’s mouth, a combination of other articles that takes us to subsistence.

[Lord Wallace of Tankerness]

My noble friend is right to say that there are other articles. The right to a fair trial is the obvious one, but there is also the right to use one’s resources under Article 1 of Protocol 1. Also used in these contexts sometimes is the right to family life under Article 8, which might well be relevant in circumstances such as these.

[Baroness Hamwee]

I am grateful to my noble and learned friend. Although I remain a little uneasy—that is not his fault—I beg leave to withdraw the amendment.

--- Later in debate ---

[Baroness Hamwee]

This was another matter that I raised in Committee, and I have been grateful for the opportunity to discuss it with my noble and learned friend since then. We agreed that I would table an amendment again to enable the Government to give a slightly longer explanation than they were able to at that date.

The amendment would protect a person who does not wish to incriminate himself. The exception of reasonable excuse would apply in this situation; it would be reasonable for a person to say that he will not comply because of the right not to self-incriminate. But this is a general defence to something that is really very specific, and if the Government can take us through their thinking it would be very helpful. On the question of what is reasonable in particular circumstances, one would have to analyse the circumstances so carefully and to such a degree that the concern about self-incrimination might be trumped. That is why a provision that was—as I described it—more straightforward, although longer, would be appropriate.

[Lord Wallace of Tankerness]

Again, my Lords, I am grateful to my noble friend for raising this point, which we dealt with in Committee and which we have had an opportunity to discuss further. I hope that I can persuade her that the Bill does not really provide the ace of trumps up the sleeve; rather, it recognises—as I think would this House—the importance of the privilege against self-incrimination.

The amendment would replace a qualified requirement to provide information in the absence of reasonable excuse with an absolute obligation, but would provide that such information could not be used in subsequent criminal proceedings. Again, as my noble friend indicated in moving the amendment, the purpose of doing so would be to protect the privilege against self-incrimination.

In Committee, I confirmed to my noble friend that the privilege against self-incrimination was not overridden by the Bill. In particular, I clarified that if a person was concerned that compliance with an information request would infringe that person’s right against self-incrimination, that concern itself would form a reasonable excuse, under what is now Clause 22(1)(a), for refusing to comply with that request.

I appreciate that the amendment is prompted by a concern that “reasonable excuse” operates as a defence, and that it is inappropriate to rely on a general defence in such a fundamental area. I readily appreciate the nature of this concern, but it is misplaced as it is founded on a misunderstanding of how the prohibition in Clause 22(1)(a) will operate. In order for the offence to be committed, the person must have no reasonable excuse for failing to provide the information. If the person decided that providing the information would infringe his or her right against self-incrimination, he or she would have a prima facie reasonable excuse for withholding it and would not have committed the offence.

The onus would not be on the person to raise a defence based on the privilege against self-incrimination. It would instead be on the prosecution to show that the person’s reliance on that privilege was not reasonable in the circumstances. In practice, no prosecution would be brought unless the prosecution considered that there was a reasonable prospect of establishing this, and then it would be incumbent on the prosecution to prove that beyond reasonable doubt. I hope that this further reassurance will permit my noble friend to withdraw the amendment.

[Baroness Hamwee]

My Lords, with reference to where the onus lies, the Minister’s reply is particularly helpful; I am glad to have the assurance that it lies on the prosecution in that situation. I beg leave to withdraw the amendment.

Terrorist Asset-Freezing etc. Bill [HL]

Debate between Lord Wallace of Tankerness and Baroness Hamwee

Wednesday 6th October 2010 Lords Chamber

[Baroness Hamwee]

This is a short amendment to Clause 16, which gives the Treasury powers to request information. Under subsection (3) we are told that the power is exercisable only where the Treasury believes that it is necessary to monitor compliance or detect evasion. My amendment would take out “the Treasury believe that” so that it reads “only where it is necessary for the purpose”, to provide a more objective test and give one the basis to ask for confirmation that the belief—assuming the clause is unamended—that the Treasury must have is reasonable. I beg to move.

[Lord Wallace of Tankerness]

I thank my noble friend for this amendment. As she has indicated, the effect of the amendment would be to make the grounds for a request under this part into an objective test by requiring it to be necessary, rather than—as provided and drafted as present—a subjective test. My noble friend would do that through the removal of the reference to the Treasury believing it to be necessary. I understand the concern that prompts the amendment. The clause makes whether to seek certain information a matter of subjective judgment for the Treasury. However, if this is challenged we believe that, as a consequence, the court will look at the reasonableness of the belief that it was necessary, rather than at whether it was objectively necessary. It is a high test and threshold for there to have to be a belief that the information must be necessary. Ultimately, whether the information is needed or not it is a matter for the Executive. However, as drafted, there is a high threshold to be satisfied, but it is nevertheless considerably preferable to the objective test that would result from my noble friend’s amendment. Therefore, I urge her to withdraw her amendment.

[Baroness Hamwee]

I am grateful. I beg leave to withdraw.

--- Later in debate ---

[Baroness Hamwee]

This amendment is longer but I hope the debate will not take us very long. We have just dealt with Clauses 16 and 17, which allow the Treasury to request—though it really comes down to “require”—information or documents. Clause 18 makes it an offence to fail to comply with such a request. I am grateful, as always, to the organisations Justice and Liberty for the amendment, which makes provision in relation to that requirement where providing information or documents might result in self-incrimination.

The Human Rights Act provides under Article 6 the right to a fair trial and that includes privilege against self-incrimination. The amendment is modelled on provisions in existing legislation and would continue to require the person in question to provide the information, but would also provide that evidence which is self-incriminatory should not be admissible in any criminal proceedings against that person. I beg to move.

[Lord Wallace of Tankerness]

My Lords, as my noble friend has explained, the underlying concern which her amendment seeks to address is that there could be circumstances leading to self-incrimination. The amendment seeks to protect the privilege against self-incrimination. She has also indicated that it is based on provisions in other legislation. I think that the Companies Act may have similar provisions. The amendment appears to be born from a concern that the Bill infringes that right against self-incrimination. I seek to reassure my noble friend and the Committee that the privilege against self-incrimination is not overridden by the Bill. In particular, a concern held by a person that compliance with an information request would infringe that person’s right against self-incrimination would form a reasonable excuse. I draw the Committee’s attention to Clause 18(1), which states:

“A person commits an offence who—

(a) without reasonable excuse refuses or fails … to comply with any request made under this Chapter”.

We believe that the right against self-incrimination would form a reasonable excuse under Clause 18(1) to refuse to comply with such a request. I believe that this provision is sufficient to maintain the important privilege against self-incrimination to which my noble friend referred. I hope she will be reassured that it is sufficient and that she will therefore withdraw the amendment.

[Baroness Hamwee]

My Lords, indeed I am reassured and I beg leave to withdraw the amendment.

--- Later in debate ---

[Lord Wallace of Tankerness]

I recognise and appreciate the zeal with which my noble friend makes her point. I reiterate that the disclosure process is designed to ensure that the maximum amount of material that can be disclosed to the individual without damaging the public interest should be disclosed. We heard today of the Law Lords judgment in the case of AF and Others that in certain cases, such as control order hearings, even when public interest concerns arise, the disclosure obligations were considerable. Because of the legitimate concerns that have been expressed, we want to look at this issue. We do not need to reiterate the fact that this legislation has to be on the statute book. I do not think that anyone has advocated that we should extend sunset clauses. It is common ground that we wish this legislation to be on the statute book by 31 December this year. That is not sufficient time to allow this important review to take place, but I can give an assurance that the matter is of such importance that we are looking at it. However, I emphasise that removing this subsection could lead to protection that would otherwise be available through special advocates not being available.

[Baroness Hamwee]

The noble Lord, Lord Pannick, as my noble friend said, has described the situation very graphically. But his description, my noble friend’s flattery or my amendment will not get us further tonight. I am not surprised that the Government resist dealing with special advocates separately in this regime from how they might be dealt with overall. It occurred to me because of the counterterrorism review to suggest a sunset clause to this Bill so that we would be forced to reconsider it all when we had the outcome, but I thought that that would not endear me to my noble friends, and more importantly it is not entirely the proper way to go about things. However, it was quite tempting. I am not at all surprised at the response. I share the concerns that have been expressed and beg leave to withdraw the amendment.

Terrorist Asset-Freezing etc. Bill [HL]

Debate between Lord Wallace of Tankerness and Baroness Hamwee

Wednesday 6th October 2010 Lords Chamber

[Lord Wallace of Tankerness]

I think that I am right in saying that the noble Lord represented successful appellants in the case to which he referred. Certainly we would take the view that the special advocate system and disclosure procedures are designed to ensure justice for individuals in difficult circumstances when, as the noble Lord recognises, public interest material cannot be disclosed. The special advocate system has been in effect for some time. With regard to the specific case, applying the AF judgment to asset freezing, the noble Lord is right that there is a relation to control orders, but the Government do not consider that there is an automatic read-across to all other proceedings involving the use of closed material for special advocates. It is fair to say that the requirements of fairness, which are vital, will vary according to the context and gravity of the consequences for the individual. It is engrained in both domestic and European Convention of Human Rights jurisprudence that fairness is context and fact specific. In the case before the Grand Chamber against the UK that immediately preceded the AF case, the point that it can vary was made. That is no doubt a matter to which we will return when we deal with the issue of special advocates under a later amendment.

[Baroness Hamwee]

My Lords, my apologies for ignoring the wonderful country of Caledonia, which I love very much. It was a particular gaffe, given the presence on the two Front Benches of eminent Scottish lawyers.

What I am going to say should be construed as constructive criticism, which is appropriate from these Benches. My noble friend referred to the human rights aspects of designations and how they had figured in the Government’s thinking in inserting the appeal procedure. The significance of the licensing regime must not be downplayed; the human rights aspects of the licences are enormously important. The Government have explained why they consider that a judicial review will be adequate to deal with licences, but the Minister has not explained—perhaps he does not think it necessary—why the appeal route is being rejected. I ask him these questions to get them on to the record. Perhaps I will come back to them next time.

Clause 22(2) allows for a person affected by a decision to apply for the decision to be set aside. The phrase,

“the decision should be set aside”,

is in Clause 22(3). I do not know whether “set aside” covers setting aside a decision and imposing an alternative, which might be varying a licence. If so, that might answer the point, but I suspect that it might not cover it; it is certainly not clear. Clause 22(4) says that this is the condition for the court giving whatever order it determines if it decides that a decision should be set aside. I want to be reassured that the court can take a view not to set aside the licence but to vary the terms of the licence. I do not know whether the Minister wants to comment on that at this point.

[Lord Wallace of Tankerness]

I thought that I had indeed indicated that it is our belief that the court has the discretion to give whatever relief it considers appropriate if it is dealing with a licence under judicial review and that that can include amending the terms of a licence.

[Baroness Hamwee]

I heard that; I took it as a general comment. I was particularly concerned about the words in what will apply—above and beyond, presumably, although I do not know—and whether the general position can trump what is in this legislation. Maybe we can discuss this between now and the next stage and, if necessary, come back to it. I beg leave to withdraw the amendment.

--- Later in debate ---

[Baroness Hamwee]

I shall speak also to Amendments 41, 42, 44 and 49. Here, we come to the prohibitions—again, creating offences—and there are a number of terms which I am seeking to understand through these amendments. The first is the term “indirectly”, whereby funds, services, economic resources and so on may not be made available directly or indirectly. I could just have sought to delete the word “indirectly” but I can see that it must mean something, and in the context of this issue I do not want to suggest that we are seeking to weaken the arrangements. Therefore, I have chosen instead to insert the words,

“with the intention of benefitting the designated person”,

but, as the Minister will have guessed, my real concern is to know what might be covered by the term “indirectly”.

The other term that concerns me is “partly”. To take the first point at which it arises—in Clause 9—the definition of “financial benefit”,

“includes the discharge of a … obligation for which the designated person is wholly or partly responsible”.

My concern here is perhaps a little different because the situation might arise in which the spouse of a designated person wants to make a payment on a joint mortgage. It seems to me that that would be prohibited, although it could obviously be licensed.

This is all about the family. I accept that there is a proposed new clause about social service benefits, but I wonder whether it is extensive enough. Joint mortgage was one example. Obviously, joint accounts will be frozen—I say obviously, but maybe I will be corrected. Will a spouse’s separate account be affected? To take a different situation, if the spouse’s employer fears that the spouse’s wages are going to a designated person, how should the Treasury, or anybody else, react? Can we have reassurance that the spouse’s income will not be stopped because the terms of the legislation are such that the employer might fear that he is committing an offence?

Amendment 40 specifically addresses joint assets and requires the Treasury to grant a licence, so I am coming at this from a number of different directions. I look forward to hearing what the Minister has to say and beg to move.

[Lord Wallace of Tankerness]

My Lords, as the amendments in this group enjoy a similar theme, it is perhaps not surprising that the Government’s position on the amendments also is similar. Amendments 38 and 42 relate to Clauses 8(1) and 10(1) respectively. These clauses prohibit the making of funds, financial services and economic resources available directly or indirectly to a designated person where the person providing the funds, financial services or economic resources knows or has reasonable cause to suspect that the ultimate recipient is a designated person and, additionally, in the case of economic resources, knows or has reasonable cause to suspect that the designated person would be likely to exchange them or use them in exchange for funds, goods and services. As for my noble friend’s initial question on the import of the word “indirectly”. Quite simply, it means that the benefit is directed through a third party and not the designated person.

The amendments would mean that a person could be prosecuted for breaching these prohibitions only if it could additionally be proved that that person intended the funds, financial services or economic resources to benefit the designated person. There is a concern that that would add a layer of complexity to the prohibitions and make it much more difficult effectively to enforce them. In these circumstances any prosecution would require proof beyond reasonable doubt that the person harboured the intention that the designated person should benefit from such funds, financial services or economic resources.

The Government do not support these amendments for two reasons. First, the amendments increase the difficulty with which the prohibitions can be enforced. Secondly, the Government do not believe that they achieve what is believed to be their intended effect, which is to provide a further protection to parties who unwittingly make funds, financial services or economic resources available directly or indirectly to a designated person. The prohibitions are already drafted so that persons who do not know or have no reasonable cause to suspect that they are breaching them, are not caught. It is therefore somewhat superfluous to require further that the prohibitions should apply only to those who intend that the funds, financial services or economic resources provided should benefit the designated person.

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[Lord Wallace of Tankerness]

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

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

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

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

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

[Baroness Hamwee]

My Lords, we come up against the issue of policy and legislative provision yet again. The oversight by the Treasury could be provided by requiring reporting to the Treasury. I take the point about regulated providers made by the noble Lord, Lord Pannick, and the point about not permitting payment to the designated person made by the Minister. Subject to those points, I do not see a lot wrong and I see a lot right with my proposition and, again, I do not want to abandon it tonight. However, for the moment, I beg leave to withdraw the amendment.