Terrorist Asset-Freezing etc. Bill [HL]

Lord Sentamu Excerpts

Wednesday 6th October 2010 Lords Chamber

[The Archbishop of York]

My Lords, in the debate on Second Reading on 29 July, I supported the noble Baronesses, Lady Hamwee and Lady Falkner, and the noble Lords, Lord Pannick and Lord Myners, in suggesting that “reasonable suspicion” provided too low a threshold for action that would violate a person’s liberty, privacy and financial interests. I prefer the term “reasonable belief”. The difference between the two is that reasonable suspicion means that something may be so, whereas reasonable belief means that something is so. To me, the distinction is important. However, I congratulate the Government because at least they listened to the debate. The noble Lord, Lord Sassoon, argued in his reply that the test of reasonable suspicion was necessary to allow preventive action to be taken before any terrorist acts were actually committed. He cited the freezing of assets in connection with the transatlantic bomb plot in 2006. However, he indicated that he had listened to the arguments.

Last Friday the Government tabled their amendments, which essentially create a distinction that I think is probably reasonable. The amendments create an interim designation that would expire after 30 days and a final designation that would be made subsequently. New clauses inserted after Clause 5 state that the test for an interim designation would be that of reasonable suspicion, while Amendment 2 amends Clause 2 to provide that the test for a final designation would be that of reasonable belief. This provides a way of allowing preventive freezing through a lower threshold of proof for a limited period.

The noble Lord, Lord Pannick, and the noble Baronesses, Lady Hamwee and Lady Falkner, have tabled an alternative set of amendments that would apply a more rigorous test by substituting the test of reasonable belief in Clause 2—Amendment 3—and by providing that designation should expire after 30 days unless confirmed by the High Court. This would bring judicial review forward to an earlier stage in the proceedings and make it automatic rather than dependent on the lodging of an appeal.

I have only just seen these amendments with the publication of the Marshalled List, but my initial inclination is to think that they do not meet the point about preventive action, which is at the heart of the Bill. Noble Lords will remember that UN Resolution 1373, adopted in 2001, required member states to prevent the financing of terrorist acts, including the freezing of funds, and to prevent their nationals and those within their territories from making funds and resources available: so it was intended to prevent actions. On that particular bit, I am happy with this two-pronged approach: first, an interim designation, and then after 30 days an actual designation. But I am not sure why the final designation is not to be made by the High Court. Why have we not gone that little bit further? I understand the interim designation because we need to stop people, as the United Nations requires us to do. Indeed, we are here today simply because the Supreme Court has ruled that the orders that have been made by Order in Council should not have been made in that way. It said not that they were not right but that they should have been made through an Act of Parliament. I suggest that, in keeping with UN Resolution 1373, and with Resolution 1452 in December 2002, the interim designation that is being attempted here goes a long way to meet my concern last time, but I am not so sure why, after a period of 30 days, the designation will not be made by the High Court.

[Lord Myners]

My Lords, I join others in giving credit to the Minister for the changes that have been made on the issue of reasonable suspicion and reasonable belief. When I was a Minister, I came to recognise that officials’ favoured recommendation on any amendment or discussion in this House and probably in the other place is “resist”. It is much to the credit of the Minister that he listened carefully to the arguments and has brought forward a constructive proposal.

It is clearly the case that you can reasonably suspect something without necessarily believing it, as the Minister’s proposal acknowledges. It is possibly churlish, therefore, to find any fault. However, I have a reservation that the proposed interim test may now be recognised as rather simple and could be used for a fishing trip to flush out further evidence during the period. It will be interesting to hear the Minister’s response as to how we can be assured that the test of reasonable suspicion will be implemented with appropriate respect for our intention in that regard.

I hope that the Minister will also confirm that the acceptance of these amendments today will not limit further discussion on Report. Other Members of the Committee have noted that these amendments, constructive and welcome as they are in most respects, have nevertheless been tabled quite recently. As the noble and learned Lord, Lord Lloyd of Berwick, indicated, they give rise to significant issues, which Parliament should be expected to consider carefully.

I add my support to the observation of the noble Lord, Lord Pannick, about the protocols that will apply in a situation in which an initial freezing might be extended. The noble Lord is right to say that that should be done not simply on the basis of there being new evidence but on the basis of substantial and material new evidence. This is to ensure that the abuse that the Government have in mind—the granting of successive interim orders without ever having to go to the test of reasonable belief—is addressed. The noble Lord’s suggestion in this respect is entirely consistent with the grain of the Minister’s thinking.

As the Minister who took the temporary Bill through this House earlier this year, with the noble Baroness, Lady Noakes, responding on behalf of what was then the Opposition, I agree that the Minister has presented us with a significant improvement on that legislation.

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[Baroness Noakes]

My Lords, the Government’s move away from the judicial review basis to a more natural appeals process for designations in their Amendment 57 is welcome. It shows that the Government have been listening to concerns about civil liberties in this Bill.

However, I have continuing concerns about Clause 22, and for that reason I shall speak in support in particular of Amendment 62 in the name of the noble Baroness, Lady Hamwee. Before I do so, I have a question for the Minister in connection with government Amendment 57, which sets up the new appeal process for designations. Am I correct that there is no provision for any appeal against the decision taken in the High Court or the Court of Session? Does it mean that the appeal process, so far as the designated person is concerned, ends there? I am not sure whether I mind one way or another, but I would be grateful to know what the Government’s position is on that.

I turn to the remaining decisions that will be dealt with under the terms of Clause 22. I accept that designations may appear to be the most important of the decisions the Executive will take in relation to the matters covered by the Bill, but decisions about licences are also vital for people who are designated. The licence regime will allow living expenses for those individuals, or possibly for the expenses they incur in order to carry on their business or trade. I spent most of the last 10 years on the Benches opposite arguing, in various circumstances, why people should not have to rely on judicial review when they get enmeshed in one Act or another. I argued strongly that judicial review is an unsatisfactory process for the citizen. That is because while the courts may well be expanding a little at the moment, typically they have involved themselves in or interfered with decisions of the Executive only where they are perverse in one way or another—perhaps because no normal decision-maker could have made the decision, the decision-maker took account of irrelevant facts or failed to take account of facts that were clearly relevant. Any civil servant worth his salt knows how to protect his Ministers from a judicial review challenge. Such a challenge is much more about form than substance, so I have never seen judicial review as something that gives the citizen much protection. If the person affected by a designation cannot convince the court that the decision was perverse in one way or another, there will no remedy at all.

The noble Baroness, Lady Hamwee, has alluded to the question of whether the court can vary the terms of a licence. If they fail to establish a perverse decision at judicial review, there will be no remedy, and if they could establish that a decision was perverse, which would probably be unlikely, there is then a question of whether any remedy is available at that stage or whether the matter has to go back to the Treasury for a further determination.

I hope that the Minister will reflect further on the Government’s position in Clause 22 and look again at whether the safeguards for those who are designated are adequate in those circumstances that go beyond the actual designation. It is good that we have moved to designations and it would be good if we could move a little further.

[The Archbishop of York]

My Lords, earlier I supported interim versus final designation, as the Government have proposed in their amendments. At the previous stage I also raised this question: when someone’s assets have been seized, how are they expected to bring forward appeals when they may not have any access to money to hire lawyers? We have been told that the final designation should be made by the Treasury and not by the High Court, which I would have preferred. There is wider resistance to this proposal, and I find the amendment persuasive. It provides that a designation,

“shall expire after 30 days unless confirmed by the High Court”.

That would help the person whose assets have actually been seized because they need to know what is going to be done. The appeal process comes much later, in the new clause to be inserted before Clause 22. Although it is helpful, again I do not think that it will cure the problem that I raised earlier in this Committee.

I feel that the Government have got to respond to this. What happens after 30 days? Does it continue? The person’s assets have gone and they perhaps cannot have access to lawyers, but it has been said that they could appeal under the new clause introduced before Clause 22 by government Amendment 57. However, that is a little too late because after 30 days, if it did lapse, only the court should say, “Yes, we are going to continue to make it as a final designation”.

In the absence of all of that, I would be very worried about our judicial processes. Although I believe the interim order is quite reasonable, as is changing to reasonable belief, but why should it be confirmed after 30 days unless a High Court confirms it? If not, the appeal, to me, comes too late in the process.

--- Later in debate ---

My final point is that if nothing is done to restrict those flows and the accumulation of assets, it will undoubtedly encourage the development of an industry of piracy and hijacking—not merely in the Gulf of Aden but in other parts of the world, because it would seem to be an attractive business with little risk that can be conducted entirely within the law of the land.

[The Archbishop of York]

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

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

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

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

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

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

[Lord Sassoon]

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