Terrorist Asset-Freezing etc. Bill [Lords]

Elfyn Llwyd Excerpts

Monday 15th November 2010 Commons Chamber

[Keith Vaz (Leicester East) (Lab)]

It is a pleasure to follow the hon. Member for West Suffolk (Matthew Hancock), who is obviously knowledgeable about the internal workings of these issues. He is also right that we need to look at the big picture more than at the immediacy of some of the things we are doing. One problem in the past was that we did not think carefully enough about counter-terrorism legislation until some great event occurred. Then there was a great hoo-hah—quite rightly—and Members in all parts of the House became concerned and wanted to pass legislation. He is right that the Bill is not being introduced with that immediacy, which means that we have an opportunity to look carefully at what is being proposed.

I have always welcomed the unity of the Front Benches on terrorism issues, although in my 23 years in this House I have found that, with one or two exceptions, whenever the word “terrorism” appears in any order or other legislation, there tends to be cross-party support. The exception was when the previous Government rather hastily marched some of us through the Division Lobby in support of 90 days’ detention. On reflection, we realised that that was not the right thing to do.

[Mr Elfyn Llwyd (Dwyfor Meirionnydd) (PC)]

The right hon. Gentleman will recall the unanimity of view on the Dangerous Dogs Act, but it was not very good law.

[Keith Vaz]

I think that was 1874, which was before even I entered the House, but I understand what the hon. Gentleman is saying.

[Mr Llwyd]

No, I meant the Dangerous Dogs Act 19—

[Mr Deputy Speaker (Mr Nigel Evans)]

Order. Shall I vacate my seat while you two have a chat? Please can we have no sedentary interventions?

[Keith Vaz]

I give way to the leader of the Welsh nationalists.

[Mr Llwyd]

I was referring to the latest Dangerous Dogs Act, which was passed in 1991. The right hon. Gentleman will recall that there was unanimity across the House on that legislation, but it was thoroughly bad law.

[Keith Vaz]

The point that the leader of the Welsh nationalists makes is absolutely right. Even though there is unanimity of purpose, it is important that we look carefully at the legislation and scrutinise it, for the reasons that all those who have spoken so far have set out. My right hon. Friend the Member for Delyn (Mr Hanson) is no longer in his place, and I am not sure where he has disappeared to. However, notwithstanding the support from the Opposition Front Bench, I am sure that when he gets to Committee and takes off his jacket—as the Minister will do too, in these dramatic confrontations that occur in the Committee corridor—they will be able to discuss the finer detail of the Bill.

We have not had a substantive debate about counter-terrorism on the Floor of the House of Commons since the new Government were formed. It is certainly the intention of the Select Committee on Home Affairs to look at counter-terrorism when Lord Macdonald has finished his review and when Charles Farr, who is conducting the review in the Home Office, completes his consideration of the Home Office issues. I see in the Chamber the hon. Member for Cambridge (Dr Huppert), in whose constituency I spent most of the morning. He and the House will know that those issues have to be discussed in great detail. We need to look at control orders, and see whether the legislation passed so far has been adequate to deal with, first, the terrorist threat and, secondly, the civil liberties implications, of which the hon. Member for West Suffolk rightly made mention. That is why what the leader of the Welsh nationalists said is so important. We hope that the Home Affairs Committee can look carefully at those issues, and therefore give a considered view to Parliament when Parliament chooses to discuss the matter.

The figures in the Minister’s written statement, which was helpfully released this morning, I think, applied to the amount in accounts that have been frozen—£290,000— and to the number of people who have had orders revoked. I do not know whether it is just me, but I was surprised at the small figure, given that the City of London and this country in general must have trillions of pounds in bank accounts. Bearing in mind the fact that international terrorism is a global crime—taking into account the concern that we have about our tough legislation on people seeking to come into this country and depositing money here to be used to finance terrorism—I thought that the figure given was, frankly, a bit on the low side. When the Minister—or perhaps his junior Minister—winds up, perhaps he will say whether he agrees, because £290,000 does not sound like an enormous amount to be funding international terrorist activities.

Similarly, on the 205 accounts, it is not clear whether we are talking about 205 people with 205 different accounts, or a smaller number of people with 205 accounts between them. Although we do not want to know who they are—it would be inappropriate, as we know, to discuss individual cases on the Floor of the House—it would certainly help the House to have as much information as possible. Are we talking about fewer people with many accounts, or are we talking about 205 people?

The second issue to do with the figures concerns the number of people who have had their orders revoked. I have not had the pleasure of reading the Joint Committee on Human Rights’ report into the issue, but I hope to do so as soon as possible. I do not know whether the report looked at the revocation of orders, but I am concerned about those who have had their assets seized, because somebody had reasonable suspicion that they were involved in, or were funding, some kind of terrorist activity, but who have had their cases reviewed and, as a result, had the orders revoked. What happens to those people? Do they get compensation if they had to pay their bills and continued to have living expenses, despite having their accounts suddenly frozen? Do we explain why their accounts were frozen? I am not sure, so I would be most grateful if the Minister told the House what procedure is adopted once an order has been revoked.

I welcome the fact that orders have been revoked: it shows that the system works. If no orders had been revoked, I would have been extremely worried, because people can have reasonable suspicions, but when they look at a particular case, they may come to another view. I welcome the new appeal process in the Bill—there should always be an appeal process in such circumstances—which will presumably mean that more people might challenge the system. It would be helpful to know what kind of information they would have during that process.

Those may seem to be points of detail, but they are terrifically important to anyone who is caught innocently in the system. Indeed, I would also be keen to know whether there had been any complaints by individuals about the way the system operates currently. If there have been legitimate complaints, do the Government propose to ensure that the legislation covers those complaints in some way or another? People might be pretty delighted that their accounts were suddenly frozen, but then suddenly released. However, I would imagine that if any of us in the Chamber did not have access to our bank accounts, for whatever reason, we would be pretty upset. Therefore, it is important to know whether any complaints under the current system have been addressed.

My final point concerns the Macdonald-Farr review. I know that it is not a matter for this Minister, but he will no doubt talk to the lead Minister on counter-terrorism—that is, the Home Secretary—or other Ministers. It is important that we have a timetable for concluding the review that the Government have set up. I recently wrote to the Home Secretary asking for that timetable. It is important that we know precisely at which point the internal review being conducted by Charles Farr is drawn up and when the views of Lord Macdonald come into any consideration. Do they prevail over what has happened? Those are not issues for this Minister; they are issues for the Home Office. However, in the overarching discussions that are no doubt taking place in Government, they are issues to be considered by all.

The leader of Plaid Cymru reminded us—certainly me—that Parliament legislates in haste and repents at leisure. The hon. Member for West Suffolk said that the Bill was not being rushed through, which we welcome, but a timetable in which the legislation has to return to us in seven days is quite fast. I am not sure how many sittings the Minister intends for scrutiny. It is sometimes considered that those who speak on Second Reading wish to sit in Committee, so I would like to make it clear to any Whips who might be present that I have no desire to sit in the Public Bill Committee. If we are to scrutinise the legislation carefully, however, and if it is going to be with us for some time, we should take into account the concerns of the Plaid Cymru leader and ensure that we scrutinise this Bill very carefully indeed.

--- Later in debate ---

[Mr Elfyn Llwyd (Dwyfor Meirionnydd) (PC)]

I believe that we need a system of asset freezing. It would be idiotic for anyone to argue that that is not necessary in this day and age, given the link between organised crime and terrorism. It occurs not just in Northern Ireland but, I am sure, throughout the United Kingdom. I take it as read that every Member in the Chamber believes in the principle of asset freezing. The next issue that arises is how we arrive at that position and ensure that it is compatible with people’s civil rights. That is important. I am not a bleeding-heart leftie as such, but I do believe that we have basic human rights and that we need to observe them. Indeed, we are obliged to do so by international law, and by domestic law too now.

I referred in my discussion with the right hon. Member for Leicester East (Keith Vaz) to the apparent unanimity between the two Front-Bench teams, and I mentioned the Dangerous Dogs Act 1991. It was introduced following some terrible incidents involving Staffordshire bull terriers maiming people and, in one instance, killing a child. The rush to legislate was understandable, but the measures were not properly scrutinised and, to this day, the Act is unworkable.

Another such Act has passed through the House during my tenure and that of the right hon. Gentleman, namely the gun control legislation following the Dunblane massacre. Everybody was appalled by that massacre, but we rushed to legislate without adequately scrutinising the measures we were putting in place, and I am afraid that the resulting Act did nothing to control the use of illegal firearms. My point is that scrutiny is vital, and that unanimity of purpose between both the Front-Bench teams, and, indeed, all Members, does not matter, because at the end of the day every one of us has a duty to ensure that our constituents live in a safe environment and that we can deal with the terrorism that might threaten them.

There is clearly a terrorist threat; only a fool would deny that. Having said that however, let us examine the Bill. The Financial Secretary to the Treasury referred in his opening speech to United Nations Security Council resolution 1373. It includes a requirement that UN member states must prevent the financing of acts of terrorism, including by the freezing of funds and economic resources

“of persons who commit, or attempt to commit, terrorist acts or participate in or facilitate the commission of terrorist acts”,

and that they must prohibit

“their nationals or any persons and entities within their territories from making any funds, financial assets or economic resources”

available to such persons. I submit that there is a world of difference between that requirement and what is being proposed in the Bill.

Initially, the Bill stated that its powers could be used if there was a suspicion that a person might be involved in some form of terrorism. That has now been strengthened somewhat: there must now be a reasonable belief that they are involved. That is quite different from what the UN is calling for, however, and in my view it does not strike the appropriate balance between protecting national security and preserving civil liberties. It is vital that we do that, and this is precisely why so many pieces of anti-terrorism legislation have been struck down by the courts. That has happened not because there is all-out war between the courts and Parliament, but quite simply because we have not been getting that essential balance right.

I believe that if we subject the Bill to proper scrutiny, we can work towards ensuring that we get the balance right. I do not want us to have to argue the same points again in a few months, after the Supreme Court has knocked some of the Bill’s measures on the head a second or a third time because of a perceived lack of respect for human rights.

As the hon. Member for Cambridge (Dr Huppert) mentioned, this Bill gives powers to the Executive, not the judiciary, and those powers are potentially harsh and punitive. As has been said, it is a form of punishment for someone to have all their assets frozen—one might argue that it is almost as bad as dealing with the Independent Parliamentary Standards Authority, but perhaps we should not go there, folks. There is a right of appeal, which is welcome, but these measures deal with persons about whom it has not been established that they have ever been involved in terrorism, but when there is just a reasonable belief that they could be, or might at some stage have been, involved in some act of terrorism.

I have concerns about the Bill, therefore, and I know that Justice and Liberty also have grave concerns. Let me repeat that I want a proper framework set up. I am not arguing an empty case—I am not saying that I oppose just for the sake of opposing. I want the legislation to be workable and to be seen to be acceptable, and for it to be tested by the courts and to be found acceptable to them. If we ensure that that is the case, we will have done our duty as parliamentarians in that we will have introduced good law.

Allowing the Executive to designate individuals as suspected terrorists is unacceptable. As the deputy president of the Supreme Court has said, these people are

“effectively prisoners of the state.”

Those are strong words from a Supreme Court judge, and I do not think he would have said them unless he felt strongly about the issue.

The Bill goes much further than is required by UN Security Council resolution 1373, a resolution that the UN’s own special rapporteur on terrorism, counter-terrorism and human rights has said

“cannot be seen as a proper response to a specific threat to international peace and security”.

I also believe the Bill fails to address the UK’s asset-freezing obligations under UN Security Council resolution 1267, recently criticised by the General Court of the European Union as “particularly draconian”.

[Sajid Javid (Bromsgrove) (Con)]

The hon. Gentleman is making some fine points, but does he accept that global co-operation is required to combat global terrorism and the financing it utilises, and that that is the intent behind the UN’s actions on this, following the terrible events of 11 September 2001? Does he also agree that for that reason global organisations, such as the committee the UN has set up, must issue orders internationally to all countries to freeze assets? The UK is absolutely key in implementing such orders given the role we play in international finance, and bringing courts into this would make any orders terribly difficult to implement.

--- Later in debate ---

[Mr Llwyd]

I do not disagree with that. We are a member of the UN, and we need to co-operate, and I do not disagree with the need for a framework. All that is understandable, but what I am saying is that we want a fair framework, and one that will stand the test of time and not be struck down because of some perceived illegality. That is all I am saying. I am probably ad idem with the hon. Gentleman on the whole issue. I appreciate that this is a global problem. That is why it is, quite rightly, being tackled by the UN, but my point is that we need to be careful about how we introduce any measures.

Lord Phillips, president of the Supreme Court, has said that the basic rights to which I am referring are a “vital part” of the fight against terrorism. He said:

“The so called ‘war against terrorism’ is not so much a military as an ideological battle. Respect for human rights is a key weapon in that ideological battle. Since the Second World War we in Britain have welcomed to the United Kingdom millions of immigrants from all corners of the globe…The Human Rights Act is not merely their safeguard. It is a vital part of the foundation of our fight against terrorism.”

As I have said in respect of resolution 1373, we are going further than required, and by imposing the freezing of assets we could be in breach of article 1 of the first protocol to the European convention on human rights. We must also consider the right to respect for family and private life under article 8, and the right of access to a court under article 6. People who will be subject to these freezing orders will not necessarily know the case against them, which is a clear breach of article 6.

The deputy president of the Supreme Court, Lord Hope, described the effect of designation by the Treasury in the following terms:

“It is no exaggeration to say…that designated persons are effectively prisoners of the state…their freedom of movement is severely restricted without access to funds or other economic resources, and the effect on both them and their families can be devastating.”

So there it is. The hon. Member for Cambridge described the powers as “draconian”, and they are certainly strong and punitive by nature.

In the Ahmed case, the Supreme Court held that the United Nations Act 1946 did not give the Treasury the power to make such a broad order and the asset-freezing regime was immediately voided. Rather unusually, the Supreme Court refused to grant a stay of execution of its judgment. In the Ahmed case, Lord Brown noted:

“The draconian nature of the regime imposed under these asset-freezing orders can hardly be over-stated. Construe and apply them how one will—and to my mind they should have been construed and applied altogether more benevolently than they appear to have been—they are scarcely less restrictive of the day to day life of those designated (and in some cases their families) than are control orders. In certain respects, indeed, they could be thought even more paralysing.”

I have made the point that there should be better safeguards. I appreciate that the appeals procedure and the change from reasonable suspicion to reasonable belief are steps forward, but the argument that the imposition of these coercive orders is best undertaken by Ministers rather than the courts seems to misunderstand the separation of powers and the role that the courts already undertake. In particular, it ignores several decades of practical experience in the courts, which have been making ex parte asset-freezing orders in a wide range of civil and criminal proceedings for the past 35 years or more and so are quite used to the procedures.

As regards national security, it seems highly implausible that the judges who sit in the specially constituted division of the High Court that hears financial restriction cases under part 6 of the Counter-Terrorism Act 2008 are somehow less capable than their colleagues in the commercial division of hearing an emergency application for a freezing order. Freezing orders are just one of many orders that the courts are much better placed than the Executive to make. I agree with a point that the hon. Member for Cambridge made in an intervention that if the measure were operated in conjunction with an arrest warrant, people might be a bit less concerned about what the Bill might mean in due course.

I hope that amendments might be proposed requiring that designation-making powers should be in the hands of the courts and not simply the Executive and requiring the designation regime be brought into the criminal justice system when designations are made against an individual, rather than a group. Applying those coercive powers on the basis of suspicion of or belief in people’s involvement in terrorism will inevitably lead to people who have never been prosecuted having orders imposed on them. The right hon. Member for Leicester East has pointed out that those who have had orders lifted are still in a precarious and highly embarrassing position because they have at some stage been suspected of terrorism, which is hardly going to place them in good standing with anybody.

I should like there to be a requirement on the courts, when making a designation, to grant a licence to enable an individual and their family to have access to such funds as are reasonably necessary for their subsistence and travel and fees for legal representation if that need arises. That would ensure that a licence was made when the matter kicked off. I should also like the Bill to reflect and uphold the basic principles of a fair trial by ensuring that any person who is subject to the regime knows in full the case against him or her and is able to present a full defence. That would involve removing the powers for special rules of court that allow for secret evidence, hearings that the interested person is barred from and the use of special advocates.

The report of the Joint Committee on Human Rights has been mentioned. The Committee would like to table useful amendments on the standard of proof. Its report states:

“We recommend that the Bill be amended to require a summary of reasons to be given in the written notice of designation, subject only to legitimate public interest concerns about non-disclosure. A mandatory statement of reasons in the written notice of designation would help to ensure that the new right of appeal is an effective remedy.”

The report also deals with the right to a fair hearing, recommending that

“the relevant provision of the Counter-Terrorism Act 2008 be amended so as to require rules of court to secure that the court’s otherwise absolute duty of non-disclosure in asset-freeze proceedings…is expressly qualified by the duty to ensure sufficient disclosure to protect the right to a fair hearing.”

There are one or two other useful suggestions, but this is Second Reading so I shall not go into great detail.

I should like to finish with two quotations. First,

“we will not defeat terrorism by reneging on this law”—

the law being the Human rights Act 1998. The quote continues:

“Upholding human rights may sometimes be terribly inconvenient in the fight against terrorists, but it is the price of democracy. We must have confidence that our democratic values can prevail. The terrorists want us to distort and bend our democratic values as we take them on—if we do that we play into their hands.”

Those were the words of Mr McNulty, an old sparring partner of mine, who was the Minister for Security, Counter-Terrorism, Crime and Policing from 2006 to 2008. He has come to the view that we have to reconsider the balance in deciding how to proceed.

Finally, I sincerely hope that the Bill will be drastically improved in Committee, because I do not want to see another example of what is becoming a regular occurrence—the Supreme Court having to do our duty for us. We are the legislators, so let us get it right. If we do not, we must heed the words of Edmund Burke:

“Bad laws are the worst sort of tyranny.”