Terrorist Asset-Freezing etc. Bill [HL]

Baroness Falkner of Margravine Excerpts

Tuesday 27th July 2010 Lords Chamber

[Baroness Falkner of Margravine]

My Lords, I welcome the noble Lord, Lord Davies of Stamford, and the noble Baroness, Lady Hughes of Stretford, to the House. Their speeches were very fine indeed and we look forward to hearing from them as we progress through the Bill.

I am not in any way expert in the minutiae of financial services. My area of interest in the Bill arises from my membership of the Constitution Committee and from my engagement with previous security and counterterrorism legislation in this House and beyond. Let me therefore flag up straight away that indeed we need vigorous measures to deny terrorists the finance that they need to carry out their aims. I therefore look forward to working constructively with the Minister on measures which, however, might impinge on the civil liberties of UK citizens, as well as further complicate rather than simplify the range of counterterrorism measures on the statute book.

Before I detail my concerns, I shall say a word or two about the genesis of the Bill. We are told that its measures lie in our obligations under United Nations Security Council Resolution 1373. That was a response within 17 days of the al-Qaeda attacks of 11 September 2001 to the use of international terrorism as a threat to international peace and security, as the noble Baroness, Lady Hughes, reminded us. The resolution was legally binding and imposed on member states a requirement to put in place the necessary architecture to respond to the resolution within 90 days. Given the political climate of the time and, indeed, the wide-ranging ambit of the resolution, it was not unsurprising that UK legislation was drafted in haste. That, and further iterations of it, have now been struck down, and we find ourselves in a position whereby we have to have something on the statute book by December, as the Minister urged.

Nevertheless, the timing of the Second Reading is strange. As many other noble Lords have commented, an urgent review of counterterrorism and security powers is currently being undertaken by the Home Office. I welcome the Minister’s reiteration of the Home Secretary’s assurance that the recommendations of the review will be taken on board, but I for one would have preferred a Bill after the review had taken place to incorporate its recommendations.

In its report, the Constitution Committee takes up the issue of the scope of the Bill, which is only partial, in that its coverage of terrorist asset freezing is intertwined with the provisions of UNSCR 1267. We made the point that having separate statutory regimes for terrorist asset freezing makes the law unnecessarily complex and has not been the subject of adequate parliamentary scrutiny. We may find ourselves in a few months with at least four different pieces of legislation to cover this area and, while I heard my noble friend’s opening remarks, I am not sure that I can see why Resolutions 1373 and 1267 could not have been consolidated.

Let me turn to the reasonable suspicion test in Clause 2. As several other noble Lords have commented, both previous substantive Acts—the Anti-terrorism, Crime and Security Act 2001 and the Counter-Terrorism Act 2008—used the test of reasonable belief. The Treasury argues that this is there to comply with UNSCR 1373. I should declare to the House that I was the officer at the Commonwealth Secretariat in 2001 who was responsible for the Commonwealth ministerial Committee on Terrorism. This group was charged with the Commonwealth-wide implementation of UNSCR 1373. It was not taken by the several Commonwealth countries represented on that committee, all of which have to conform to similar judicial practice to the UK, that Resolution 1373 imposed a threshold as low as reasonable suspicion. Indeed, I do not recall that the UK delegation, which I think was led by the Secretary of State for Foreign and Commonwealth Affairs, wished that to be the case in any form whatever.

I accept that there is a requirement for a preventive regime in Resolution 1373. It is clearly evident in clause 1(a) of the resolution, which requires all states to:

“Prevent and suppress the financing of terrorist acts”.

So I accept that the Bill should have a preventive element in it. The reasonable suspicion test, however, is not the sole means by which we could be compliant with the preventive aspects of Resolution 1373. The Treasury, in its response to consultation published earlier this month, argues that there is a further reason for this test—to meet the UK's national security needs. At paragraph 3.7 on page 9 we are told:

“The Government believes that, to be consistent with UNSCR 1373 … and to meet the UK’s national security needs, the asset freezing regime should be preventative in nature … The Government believes that the ability to act on reasonable suspicion is an appropriate standard”.

I argue that the overall national security threat is best dealt with by the National Security Council and the Home Office, while the Treasury should take a more narrow and technical purview and deal solely with terrorist assets rather than with catch-all phrases under the rubric of national security.

When it comes to EU legislation, we have a long history of gold-plating directives to make them vehicles for a lot of other things that we would like. I caution against doing so with counterterrorism legislation. The Treasury argues that the scale and severity of the threat facing the UK is such that it needs in its toolkit a more robust regime than other countries. I suggest to the Minister that his department might concern itself with the narrow approach to asset freezing that I have suggested and leave the bigger questions to colleagues in the Home Office. It is known for its zeal in bringing forth a deluge of legislation on national security, and I am sure that it will continue to keep a vigilant eye on these matters.

In order that we might be convinced of the scale of the threat, will my noble friend tell us how many people are designated and what is the sum of their assets? Implementation of the UNSCR is an obligation on all UN members, and the Treasury might do well to look abroad for good practice, as we in United Kingdom are not unique. I understand that New Zealand has preventive provisions through an interim order that lasts 30 days and is based on the test of reasonable suspicion, and after 30 days requires the Prime Minister to exercise the test of reasonable belief. That could point to the way in which we might proceed.

I turn to the process issues in the Bill. Clause 22 provides for judicial review. In paragraph 24 of its report, the Constitution Committee states that the court would make a determination not as to whether designation is necessary, but merely whether the Treasury’s decision was reasonable. Clearly, this would be inadequate if a person was unreasonably designated. There are further issues of disclosure and closed evidence that call into question the overall fairness of the role of special advocates. I should declare that I was a member of the Joint Committee on Human Rights when it looked into those matters. I am sure that we will probe all these issues in Committee.

In conclusion, I remind the Minister of the words of his right honourable friend the Secretary of State for the Home Department on 13 July on the Home Office review. She said:

“The review will enable this Government to put right the failures of the last Government and, in so doing, restore the ancient civil liberties that should be synonymous with the name of our country”.—[Official Report, Commons, 13/7/10; col. 798.]

I hope that during the passage of the Bill we will bear in mind those words.