Terrorist Asset-Freezing etc. Bill [HL]

Lord Davidson of Glen Clova Excerpts

Wednesday 6th October 2010 Lords Chamber

[Lord Davidson of Glen Clova]

My Lords, the last Government passed the provisional Bill earlier this year to validate existing asset-freezing orders and to avoid gaps in the terrorist asset-freezing regime. At the same time, we sent a draft Bill for public consultation to ensure that we had a viable long-term framework for terrorist asset freezing. Those were the right decisions to take at the time and I thank the Treasury for its advice on these matters. What it means for us today is that we now have the benefit of public submissions on the draft Bill and the report from our Constitution Committee. Submissions on the draft Bill voiced a concern that the balance was not right between public security and individual civil liberties. Added to that is the report from the Joint Committee on Human Rights, which noted the necessity to keep assessing the appropriateness of terrorist legislation to ensure that the measures imposed remain fair and proportionate. We have taken these views on board.

The interim designation proposal from the Government is inevitably a compromise position to accommodate some of the concerns raised by the Supreme Court in the Ahmed case, in public submissions made on the draft Bill and by the Constitution Committee in the House of Lords. We have been considering the viability of a similar regime ourselves. In considering this solution further, we have a few questions about the Government’s proposed regime.

One issue that might benefit from clarification—this echoes the remarks of the noble Baroness, Lady Falkner—is how the Government came to the 30-day timeframe. I assume that there was nothing very principled about it. Do the relevant agencies consider that they will be able to meet the higher test within such a period? Do they consider that that will put a particular imposition on the limited resources available to them in this particularly difficult area?

As I understand the Minister’s position, the consequence of the new approach is that the order will drop, although it is reasonably suspected that an individual is involved in terrorist activity. I appreciate that there is more than a semantic difference between “reasonable suspicion” and “reasonable belief” but, as the noble and learned Lord, Lord Lloyd of Berwick, said, the difference between the two tests can be quite thin. Because this may be an area that will become contentious in court, it would be helpful if some indication might be given as to how the Minister perceives the difference between the two tests. As the noble and learned Lord, Lord Lloyd of Berwick, also said, it is paramount to suspend terrorists’ funding when one may.

There is a concern about the extent to which a string of interim designations might lead to pressure on sparse resources. Have the Government considered the possibility of a longer timeframe with a definitive cut-off point as a way in which to provide certainty and capacity for the long-term credibility of the asset-freezing regime? There is in New Zealand a possibility of a one-year interim designation based on the lower burden of proof. That cannot be renewed. After that period, the relevant authority, in that case the Prime Minister, must decide whether to grant a final designation or to allow the designation to lapse. That acknowledges the important balance required between civil rights and security. It would be interesting to know whether the Government have any information on how that regime has operated in New Zealand and it would be useful if such information as the Government possess might be made available.

There is interest in the Government’s assessment of costs in introducing this regime into the asset-freezing framework. I appreciate that this might be asking for too much, but are there any indications as to what additional costs might be associated with having an interim and final designation scheme?

Finally, I share the view expressed from all quarters of the Committee, including by the noble Baronesses, Lady Hamwee and Lady Falkner, and the noble Lords, Lord Myners and Lord Lester, that further debate on some of these amendments might be useful. I echo the noble Baroness, Lady Noakes, in expressing disappointment about the absence of a review. Again, it would be helpful to have a timeframe that the Minister is confident in telling the Committee about when that review might come.

I draw attention to the point that the noble Lord, Lord Lester of Herne Hill, identified, with his usual acuity, on the recent decision of the European Court of Justice. Plainly this must raise questions about how that Court views the potential for abuse in the system as it is currently proposed. It would be useful to hear what consideration the Government have given to the decision of the Court. I appreciate that the decision is very recent and would not expect any developed appreciation of the judgment.

[Lord Sassoon]

My Lords, I am grateful for the important contributions that we have had to this discussion and for the focused points. I appreciate the remarks from around the Committee in response to the amendments that we have brought forward. On one or two of the procedural points, I apologise if noble Lords believe that our amendments came forward a bit late in the day but, as your Lordships will appreciate, they are fundamental amendments to the Bill and, with the Recess and the summer holidays, it took some time, both within the Treasury and with my colleagues in Government, to ensure that we got them absolutely right. We took the time necessary to do that, but I apologise if it has been a bit of a scramble in the past couple of days.

On the question that a number of noble Lords have raised about the process of amendments to amendments, my understanding, although I am the newest of new boys here, is that amendments to amendments are possible but the reversal of amendments on Report is not. Whatever the construction is, though, I am sure that we will be bound by whatever the conventions of the House are. However, I take the point that there are potentially a number of bits of tidying up. We will come to the individual items, but there are certainly one or two things that I shall take away and reflect on. I take that procedural point.

On the question of the publication of the Home Office review, I can only repeat what I said in my opening remarks—I have no specific date. However, I note the remarks that have been made today, and I will take them away and relay them to my right honourable friend the Home Secretary.

I turn to some of the specific points that have been raised. A number of noble Lords, starting with the noble and learned Lord, Lord Lloyd of Berwick, have made the suggestion that it should be for a judge to make the order rather than a Treasury Minister, with the courts then reviewing the order if it is appealed. I cannot do more than refer to the powerful case succinctly put by my noble friend Lord Carlile of Berriew, who said what I would probably have said at greater length: we believe, given the nature of this regime and the nature of the process that requires Ministers to take account of operational information, that it is appropriate for Ministers to make the initial order, but making that order has to be done on the considerably strengthened tests that we are now proposing and there has to be a concern that the public would be put at risk if the order were not made.

--- Later in debate ---

[Lord Davidson of Glen Clova]

My Lords, as noted earlier, the issue of civil liberties was raised in respect of the terrorist asset-freezing regime in the Bill. Some of the submissions on the draft Bill and in the report of the Constitution Committee suggested that more judicial oversight of decisions be made under the new Act. The contributions in the earlier debate reiterated that point. These amendments are intended to provide a better check and balance on decisions taken by the Executive behind the closed doors of the Treasury. This is to be welcomed.

As with the burden of proof issue discussed in earlier amendments, we support the introduction of more judicial oversight to protect civil liberties. It is correct that the previous Government considered it appropriate for the executive branch of government to make initial decisions in this area and we do not resile from that point. We welcome the Government’s amendment to make this regime more credible by having a judicial check and balance on that power.

I echo the view of the Joint Committee on Human Rights that we should constantly review terrorism legislation to make sure that we have the balance right. The Minister noted the interest on this side in the Home Office’s view on this area and I repeat that it would be helpful to have that to inform future debate.

Perhaps I may raise one or two probing issues in relation to the terrain of appeal. I respectfully agree with the noble Baroness, Lady Hamwee, that this area does not seem wholly clear. What seems to be envisaged is a form of appeal that is, to a degree, sui generis; it is not simply going off to the Court of Appeal or the Inner House. The judicial review also appears to operate in some way that may be parallel. It would be helpful if the Minister could indicate what is envisaged by this nature of appeal.

I would be particularly interested to hear whether it is envisaged that there should be some kind of fact finding. I raise this question because, in endeavouring to find out what was proposed in relation to an amendment that I shall bring forward later in relation to compensation, the answer that I received from Treasury officials was that compensation might be dealt with by the Appeal Court. As the Minister will immediately recognise, that introduces the question of fact finding that might come before any such, putting it neutrally, adjudicator. We are left with a certain lack of clarity as to what the Appeal Court is endeavouring to do and what its remit will be.

The point was well made by the noble Lord, Lord Pannick, that in this area timing will be critical. If the notion of a remedy to the Appeal Court is to have substance, it will be essential on issues such as interim designation to have the potential for speedy trial. Because this area is a relatively late introduction by way of amendment, it would be helpful to have guidance on what the Government envisage.

Perhaps I may make one final point in relation to the amendment tabled by the noble Baroness, Lady Hamwee. It is a gentle point; I hope that I am not to be accused of Caledonian prickliness. It relates not only to this amendment but to a number of amendments.

[Baroness Hamwee]

I have got the point before the noble and learned Lord makes it.

[Lord Davidson of Glen Clova]

Then I will not make it.