Terrorist Asset-Freezing etc. Bill [HL]

Lord Lester of Herne Hill Excerpts

Wednesday 6th October 2010 Lords Chamber

[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.

[Lord Lester of Herne Hill]

I agree with everything that has been said by everyone—including the congratulations to the Government—and I can therefore be extremely brief. I rise not to hear the sound of my own voice but to make two points. First, the Joint Committee on Human Rights was formed only a couple of weeks ago and will consider this debate and the amendments when it meets next week, after which it will report. As a member of the committee, I feel that that is a further reason for supporting what has been said by three contributors—my noble friend Lady Hamwee, the noble Baroness, Lady Noakes, and the noble Lord, Lord Myners—about the importance of being able to return to these matters on Report. Although the Constitution Committee produced an important report, I am sure that Members of the House would like to be informed about the human rights implications.

Secondly, the original Explanatory Notes on the Bill were rather brief in dealing with the human rights implications. I believe that a more detailed human rights memorandum was submitted by the Treasury on 13 August. I have asked in the Printed Paper Office for a copy but it does not have one. Will the Minister indicate the need for that to be made available before final decisions in this House are taken? As it is not there now and I have not had the benefit of seeing it, I certainly do not feel as well informed as I would like to be.

Lastly, could the Minister say something about the important decision of the European Court of Justice in the Kadi No. 2 case last week, which found in favour of the applicant in a terrorist asset-freezing context and insisted on writing strong safeguards against abuse into the United Nations framework? Again, the House needs to be informed about that in considering on Report the implications of the most welcome amendments that have been put forward but which have been subject to powerful criticism and questioning by members of the committee.

[Lord Carlile of Berriew]

My Lords, I declare an interest as the shortly outgoing independent reviewer of the Terrorism Act 2000 and some connected legislation. I, too, congratulate the Minister, my noble friend and the noble Lord, Lord Pannick, on the work that has been done to produce the outcome that we have today. We are concerned here about aspects of the public interest and particularly national security. There is a clear paramountcy in ensuring that assets are not used to fund terrorism; the issue is the proportionality of the efforts undertaken to prevent that from happening.

I am sorry that I was not able to be here to speak at Second Reading. I shall simply add one sentence to the few remarks that I wish to make on this amendment, which is ever so slightly out of order. I note that Clause 25 makes provision for an independent review of the provisions contained in the Bill. It is not inevitable that the same independent reviewer as reviews other counterterrorism provisions should review these provisions, but for efficiency and consistency it would seem sensible that the same person should do it—it will not be me because I shall be going out of office shortly—because there are similar issues to be considered in relation to both pieces of legislation.

I agree with those who have said or implied that consistency of standards of proof is required wherever possible and that those standards should be as high as is proportionate and consistent with the national interest and the issues that we are concerned with. It is my view that reasonable belief might be transliterated elsewhere in raising the standard required in other aspects of counterterrorism legislation. I certainly welcome it.

The noble and learned Lord, Lord Lloyd of Berwick, raised early in this debate the issue of orders being made by judges rather than by the Executive. I do not have a very strong view about that, save to point at the evidence. Like it or not, if one looks at the control orders regime, one sees that judges have shown themselves to be extremely robust about the orders and the conditions applicable to them in rejecting executive acts or amending those that have taken place. That separation between an order made by the Executive and a review by the judiciary on whatever basis seems to work and does not need to be changed. There is a tried and tested process whereby judges, with the help of special advocates—I admit that their activities could be improved if greater assistance were given to them—reach decisions that robustly protect the rights of the individual.

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[Lord Sassoon]

Ultimately it is the responsibility of the Executive to make these orders. They have the operational information at their disposal. Yes, the orders can be made very quickly. Fundamentally this is an appropriate action power of the Executive, with checks through the courts. That is the way it has operated to date, with the important exception that we are strengthening both the test that Ministers have to apply and the ability to challenge decisions through the courts. I take to heart the words of the noble Lord, Lord Myners, as a Minister who was involved in implementing the regime. He graciously said that the new construct provides a better approach than the one in the previous legislation. I take that very much to heart from a former Minister who is used to making these difficult judgments, which have to be made.

[Lord Lester of Herne Hill]

My Lords, does the Minister accept that this is a highly controversial matter, that I for one have the misfortune to disagree with my noble friend Lord Carlile, and that the Kadi case, for example, about which we hope to hear more, is very much in favour of full judicial protection and full due process of law? I for one wholly agree with the noble and learned Lord, Lord Lloyd of Berwick, and with the noble Lord, Lord Davies. I see no reason whatever why we cannot trust the High Court, with its very sensitive procedures concerned with protecting national security but also personal liberty, with the primary decision to make an order with draconian consequences. I understand the arguments of administrative convenience which are always deployed by the Executive but I for one am not satisfied. I cannot tell whether the Joint Committee on Human Rights will come to a similar view.

[Lord Sassoon]

My Lords, I shall come to the Kadi case although I should note that it does not directly relate to this particular regime. There is a judgment to be made as to what actions are ones for the Executive and what are not. We believe that this measure—it is the way this regime has worked over the years—should be operated by Ministers with the appropriate protections. The word “draconian” has to be used and understood in a particular way. The measure is intended to be draconian in the sense of making a material impact on the ability of terrorists to finance their activities but is not intended to be draconian in the sense that we also have very significant safeguards in the regime through the licensing which allows proper expenditures to be made. Therefore, I do not recognise the word “draconian” in that sense as we ensure, under individual or general licences, that money can be released for the appropriate uses, whether that is to pay legal bills or family expenses and so on.

The noble Lord, Lord Pannick, made some very helpful remarks. As we are also discussing his amendment, I reiterate his endorsement of the broad shape of the regime that we propose in the government amendments. He made three specific points in relation to what we are proposing in Clause 29 and asked detailed questions about whether it should be the same evidence or substantially the same evidence. As I think he recognises, these are fine points which I will take away and consider. On the noble Lord’s point about appropriate notification, I should have thought that if certain people had been notified at the outset, at stage two it would be appropriate to notify the same people, so I am not sure that that needs to be stiffened up. Indeed, I am not immediately persuaded as to what difference the use of the same evidence or substantially the same would make in practice, but I will have a look at that.

My noble friend Lady Noakes talked about the procedural points that I have addressed in the Home Office review. My noble friend asked whether the review will detail the number of interim and final freezes and how many interim freezes had become final freezes. I have little doubt that that will be covered in the review. I am not sure that the implication should necessarily be drawn that if a number of interim orders are made, but they actually fall away, that in any sense suggests that they were improperly made or that the evidence was not properly based. I can quite see circumstances in which interim orders have to be made but, for a number of reasons, could fall away. I take my noble friend’s point about—

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[Lord Lester of Herne Hill]

I am sorry to interrupt my noble friend the Minister, but he is putting his own gloss on the judgment. He says that it puts us at odds with the United Nations regime, but am I not right in saying that the European Court was at pains not to put itself at odds with the regime, but to insist upon safeguards in administering the regime?

[Lord Sassoon]

My Lords, I am reluctant to get too far into the details of the Kadi case. As the noble and learned Lord, Lord Davidson of Glen Clova, said, this is a recent and complex judgment that may be appealed and does not have a direct bearing on the Bill. I hope that we can now pass on, but appreciate that we may need to come back to this in the House in future.

I think that I have picked up most of the material points. The last one is the question of what happened to the printed copy of the Treasury’s human rights memorandum. I will go back and make sure that the memorandum is available. I do not know where it has got to in the paper trail, but I will find out, and I look forward to seeing the conclusion of the Joint Committee on Human Rights on the Bill and discussing this further on Report. That is a further important step as we scrutinise the Bill.

I will ask the noble Lord, Lord Pannick, not to press his amendment but to support the government’s amendment.