Terrorist Asset-Freezing etc. Bill [HL]

Baroness Hamwee Excerpts

Monday 25th October 2010 Lords Chamber

[Lord Sassoon]

My Lords, the Government’s intention behind this amendment is to clarify that the words “involved in” in the legal tests for interim and final designations do not mean something additional to the activities and conduct referred to in the definition of “terrorist activity”. In Committee, my noble friend Lady Hamwee indicated her concern that use of the term “involved in” could capture people whose conduct did not fall strictly within Clause 2(2) but who were simply associates of people whose conduct did fall within that clause or who were merely innocent bystanders. This was not the Government’s intention, nor do we think that it is the effect. However, by tabling this amendment to make it clear that “involvement in terrorist activity” means no more than the activities and conduct described in Clause 2(2), I hope to ensure that there can be no doubt or further confusion. I thank my noble friend for her intervention in Committee and hope that she and other noble Lords will be minded to support our amendment. I beg to move.

[Baroness Hamwee]

My Lords, I am extremely grateful to the Minister for this amendment. The Bill creates a number of offences, so I felt that it was important to be crystal clear about the provisions. In my view, the amendment achieves that. I thank my noble friend.

Amendment 2 agreed.

--- Later in debate ---

[Lord Pannick]

My Lords, this amendment addresses the purpose of the interim designation. Noble Lords will be well aware that the Treasury has a power to make an interim designation for a period of up to 30 days if it reasonably suspects that the criteria for making a designation are satisfied. After the 30-day period, reasonable belief is required. I entirely accept that it is appropriate for the Treasury to have this power of interim designation on the basis of reasonable suspicion, but surely it is appropriate for the Treasury to have and to exercise such a power only in those cases where it has not had a proper opportunity to consider and to decide whether the stricter criterion of reasonable belief is satisfied. Amendment 10 would limit the interim designation power to those cases where the Treasury considers that it is necessary to act as a matter of urgency before proper consideration can be given to whether it has reasonable belief in the involvement in terrorism. I cannot see that it would be appropriate for the Treasury to exercise that power of interim designation in any other circumstances. I suggest to noble Lords that it would be highly desirable that the purpose of this interim designation power be specified in the Bill.

My Amendment 13 is grouped with Amendment 10. However, government Amendment 14 meets the concern which I expressed in Committee and explains Amendment 13, which deals with the need for improved safeguards against repeated interim designations of the same person. I thank the Minister for tabling Amendment 14. I beg to move.

[Baroness Hamwee]

I have tabled Amendment 12 in this group. First, with regard to Amendment 10, I hope we will not hear from the Minister that it is not necessary to put the provision into the Bill because it is the practice—a point I may make later in a different context.

I might have said that my Amendment 12 was substantially the same as the amendments tabled by the noble Lord and the Minister. The point is the same—that the same or similar evidence should not be used to make more than one interim order. I could make the Government’s arguments against proposed new paragraph (b) in my Amendment 12, but I would like to hear them do so.

As regards the second limb of my amendment, it seemed to me that a time limit would be easier to deal with and could be more clearly analysed than relying on whether evidence is the same or substantially so. A time limit, although six months may not be the correct one, would make the matter absolutely clear—no one could argue with it or argue its nuances.

[Lord Lester of Herne Hill]

I agree with the noble Lord, Lord Pannick, and with my noble friend. I am speaking partly as a member of the Joint Committee on Human Rights, whose report was published on Friday last. We took the most unusual step of publishing our preliminary report before we had seen the Government’s response. I am therefore sure that once the committee, which meets tomorrow, has had a chance to look at this debate, it will be too late to influence what happens in this House, but I hope it may be looked at in the other place.

I shall not waste the time of the House by citing what is in our report as it can be read by anyone who is interested. However, one point at the end of it bears on all these amendments. At paragraph 1.47, we ask the Government to explain why the opportunity is not being taken in the Bill to provide a comprehensive and accessible legal regime for terrorist asset freezing, and therefore to provide Parliament with the opportunity to scrutinise those powers for human rights compatibility, the lack of which so troubled the Supreme Court. That is a general and important point, and it may have to be pursued if not here then in the other place.

--- Later in debate ---

Moved by

[Baroness Hamwee]

19: Clause 17, page 8, line 14, at end insert—
“(4A) An application for a licence for the purposes set out in subsection (4B) shall be dealt with by the Treasury as a matter of urgency.”

[Baroness Hamwee]

I shall speak also to Amendments 20, 20A and 22. They all concern the licensing regime and I am keen to ensure that there is sufficient in the legislation, as distinct from current practice, to put a direct obligation on the Treasury to deal with licences in the way that we have come to understand it does, and that the obligations are direct and thus do not require what might be described as a slightly more complicated Human Rights Act route.

Amendment 20 would require of the Treasury, if requested by a designated person or another person—I have put that in as an olive branch to the Treasury—that,

“a licence shall, if requested, be granted to enable the designated person or any other affected person to have access to funds or economic resources sufficient for the reasonable living costs”,

both of the person concerned and of any dependants. Subsistence costs are not much to ask for, and they can be conditional. Clause 17(3)(a) provides that any licence can have conditions attached. Amendment 19 would require that an application,

“shall be dealt with by the Treasury as a matter of urgency”,

for the reasons that have already been touched on, and clearly this must be urgent. It almost goes without saying that if all of a person’s assets are frozen, enough should be released to allow for reasonable living expenses.

I understand that the Government say that the Human Rights Act in effect obliges the Treasury to issue licences so that convention rights are not infringed. No doubt the Minister will take this opportunity to spell out exactly what convention rights are in issue and give the Government’s view on the route taken through them to achieve the result I want.

Amendment 20A deals with the costs of legal representation or legal advice. We debated this in Committee and I hope that my amendment has taken the helpful points made in particular by the noble Lord, Lord Pannick, in order to address the possible use of such a provision to evade proper asset freezing controls—or, to put it more colloquially, giving money to dodgy lawyers who might then give it back to the person who is being controlled. So I have referred to “regulation” in the amendment. I am aware that the practice of the Treasury, which is not the same as what is stated in the Bill—although I may again be told about human rights provisions—is generally to license the granting of legal aid without anticipating what might happen to the legal aid budget. I am not convinced that that is sufficiently wide.

Amendment 22 deals with the variation of a licence. I have tabled it in order to seek assurances that the court can vary an order. Clause 27 states that a decision can be set aside. It would again be helpful if the provision were spelt out, although I suspect that I will again be told that there is Human Rights Act protection. Perhaps the Government can tell the House why it cannot be spelt out that an order can be varied rather than simply be set aside. If a decision were set aside, it would allow the designated person to go through the hoops again. However quickly the matter is dealt with, some time will be taken. However much the Treasury takes into account what the court says—it will clearly be under pressure to do so—it is all rather less direct and less clear. I beg to move.

[Lord Pannick]

My Lords, I support the amendments, in particular Amendment 20A. The Treasury has no interest whatever in controlling expenditure on legal advice and legal representation; its only interest is to ensure that the assets are not used for terrorist purposes. It is important that the uninhibited right to seek legal advice and to obtain legal representation is stated clearly in the Bill and that it is not left to Treasury concession.

--- Later in debate ---

[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.

Amendment 19 withdrawn.

--- Later in debate ---

Moved by

[Baroness Hamwee]

20B: Clause 22, page 11, line 13, at end insert—
“(3) A person must comply with a request under this Chapter even if doing so might constitute evidence that the person has committed an offence.
(4) But in criminal proceedings in which a person is charged with an offence—
(a) no evidence relating to any answer given, or anything else done, in response to the request may be adduced by or on behalf of the prosecution, and(b) no question relating to those matters may be asked by or on behalf of the prosecution,unless evidence relating to those matters is adduced, or a question relating to those matters is asked, in the proceedings by or on behalf of the person.
(5) Subsection (4) does not apply to—
(a) an offence under section 112 of the Social Security Administration Act 1992 (false representation for obtaining benefit etc);(b) an offence under section 5 of the Perjury Act 1911 (false statutory declarations and other false statements without oath); or(c) an offence under section 44(2) of the Criminal Law (Consolidation) (Scotland) Act 1995 (false statements and declarations).”

[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.

Amendment 20B withdrawn.