Terrorist Asset-Freezing etc. Bill [HL]

Lord Lloyd of Berwick Excerpts

Wednesday 6th October 2010 Lords Chamber

Finally, I should note that we will continue to require the Treasury to consider an asset freeze—be it an interim designation on suspicion or a designation requiring reasonable belief—to be necessary to protect members of the public from the risk of terrorist acts before they can be implemented. The amendments will ensure that an asset freeze will be made only where it is necessary and proportionate to do so and they balance the effect on the individual and the need for public safety. I beg to move.

[Lord Lloyd of Berwick]

Perhaps I may be permitted to start the ball rolling before my noble friend Lord Pannick speaks. I am sure that your Lordships are waiting to hear his views, but as I did not have an opportunity to take part in the Second Reading debate, perhaps I may express my views on the amendments first.

The government amendments were published only on Monday, so I saw them only yesterday. We have not had long to reflect on them, but one thing that is clear is that the Government have listened to what was said on Second Reading, they have studied carefully what was said in the excellent report of the Constitution Committee and they may even have had a preview of what the Home Office review will say on the subject. On any view, the Government have kept an open mind on the matter up till now, which should surely be a subject for congratulation. If I may say so from the safety of the Cross-Benches, that makes a welcome change.

The amendments now proposed are so fundamental that at this stage we need another Second Reading debate, particularly in relation to what is proposed in the appeal to the High Court on fact as well as on law. That is a fundamental change of huge importance, and we will come to that later.

On the matters covered by this group of amendments, I start with the new interim designation order. That seems to be the logical starting point, although of course it will come later chronologically as we go through the Bill. There may be those in the Committee who will object to “reasonable suspicion” in relation to the interim designation order. Some may prefer “reasonable belief” in that context, as well as in the context of the final designation order. I do not share that view. Reading the new clause took me back to what I wrote in 1996 on page 86 of my report. I have many spare copies of that report at home if anyone would like to see one. That was of course long before 9/11 and long before Resolution 1373. I said then that there should, exceptionally, be a power to freeze assets before the suspect is arrested or charged. It should be open to the police to go before a judge ex parte—that is, without notice to the defendant—and satisfy him that they have reasonable grounds for suspecting that the defendant is about to commit a terrorist offence. I recognised then that that would be a radical step to take but I said that it was justified because of the paramount need to neutralise terrorist funding before the terrorist offence is committed.

Therefore, I have no difficulty at all with “reasonable suspicion” in relation to the interim designation order. The problem as I see it is somewhat different. If the designee, if I can call him that, is able to go before the judge as soon as he has notice of the order, as is now intended, would it not be altogether more sensible for the judge to make the order in the first place? That is how it is done in other branches of the criminal law, so why not here? What is the reason for the Treasury making the order itself rather than applying in the ordinary way, with which we are all familiar, to the judge? So much for interim designation orders.

I turn to the final designation order. Of course I welcome the change from “suspect” to “believe”, although in practice there may not be quite as much difference between those two things as is sometimes supposed. The real problem here, as indeed in the case of interim designation orders, is that, a fortiori, if we are to impose a permanent designation on the individual, we surely need something much more solid than either suspicion or belief. We need fact. Before we impose a final designation order or final freezing order on all his assets, the defendant must surely have been arrested or charged with some criminal offence. That was certainly my view in 1996 and it is certainly Liberty’s view today in its, as always, excellent briefing paper. However, more important than either of those, it was the view of the noble and learned Lord, Lord Phillips, in Ahmed. In that case, he referred to paragraph 1(c) of Resolution 1373 and then went on as follows:

“Thus what the Resolution requires is the freezing of the assets of criminals. The natural way of giving effect to this requirement would be by freezing the assets of those convicted of or charged with the offences in question. This would permit the freezing of assets pending trial on a criminal charge, but would make the long-term freezing of assets dependent upon conviction of the relevant criminal offence to the criminal standard of proof”.

As I understood the noble Lord, Lord Sassoon, he does not accept that, and he does not accept that that is the view formed by the Supreme Court. But with great respect, it seems to me that that was its view. It comes to this. The noble Lord has gone a very long way to meeting all the problems that we raised on Second Reading and that have been raised elsewhere. But I ask him to go one step further. Can he agree between now and Report that the final orders should be made by a judge on the application of the Treasury? If so, he will have my complete support on that occasion. And more importantly, it will be in line with what I believe was the intention of the Supreme Court in Ahmed.

[Lord Pannick]

The reasonable suspicion criterion was a feature of the Bill that caused concern both in your Lordships’ House and elsewhere. Concern was expressed during passage of the temporary provisions Bill earlier this year; expressed by your Lordships’ Constitution Committee; and expressed by a number of your Lordships in Committee. The concern, quite simply, was that the Government should not enjoy the power to freeze a person’s assets, with all the damage and inconvenience that that involves, unless they have at least a reasonable belief that the person concerned is involved or associated with terrorist activity. That is why I tabled Amendment 3, to which the noble Baroness, Lady Hamwee, has added her name. It would substitute reasonable belief for reasonable suspicion.

I am very pleased that the Minister has listened to the arguments. He has accepted that, other than for a temporary period of 30 days, assets should be frozen only when the Government believe, on reasonable grounds, that the individual is involved with terrorist activity. I am sure that all noble Lords will be grateful to the Minister and his team for their response to the expressions of concern, and for the care with which they have drafted and presented these amendments. For my part, I accept that it is appropriate for the Government to have an interim power to freeze assets for a period of 30 days simply on the basis of reasonable suspicion. I accept that because there may be cases when they have only limited information and reasonably wish to act to prevent dissipation of the assets while investigations are concluded. A period of 30 days seems a reasonable time for that interim exercise. Of course an interim order, although undoubtedly very inconvenient for the person concerned, will not have the same draconian effect as a freezing order that continues for a lengthy period. I welcome the government amendments.

There are three points of detail in relation to the amendments in this group. First, it would be desirable for Amendment 29—the new clause which confers power on the Treasury—to make an interim designation to specify the purposes for which the power may be exercised. I am concerned that the drafting does not identify the specific mischief that the interim designation for 30 days is designed to meet. Subsection (1) of the proposed new clause simply repeats the substantive criteria for a final designation save that the criterion for the interim designation is reasonable suspicion rather than reasonable belief.

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[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.

[Lord Lloyd of Berwick]

Can the noble Lord think of any case other than control orders where orders of this kind and having these consequences are made by the Executive rather than by the judge?

[Lord Carlile of Berriew]

There are no other orders that are comparable with these, so any other context would seem to me not to be relevant. I say that with great respect to the noble and learned Lord. We are talking about a pretty special form of litigation and legislation.

I close simply by saying that a useful decision has been reached and the Government have shown themselves, in this instance at least, to be very responsive to the informed opinion that was given at an earlier stage in this Chamber.

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[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.

[Lord Lloyd of Berwick]

Will it be open to the Treasury to make an order in a case where it cannot be revealed to the defendant what the case against him is? In other words, is it accepted that the Treasury will be applying the decision in AF?

[Lord Sassoon]

I do not believe that the rules about what evidence can be brought before the court are in any way changed by what we are proposing from the conventions that apply. It relates in some way to the point that the noble and learned Lord made about the nature of the evidence that should be there before an order is made. The noble and learned Lord, Lord Lloyd of Berwick, quoted one Supreme Court justice; I could quote others but perhaps I should not detain the Committee. I might have referred to that at Second Reading. The noble and learned Lord, Lord Rodger, has in some of his remarks expressed a different view about the nature of the supporting evidence in order to support very much a preventive approach to this regime.

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[Lord Carlile of Berriew]

My Lords, my noble friend Lady Hamwee has provoked me, at least into saying to her that it will cost her no more than a drink later. However, with great respect and affection, I want to raise a substantive point about her amendment because I think that she is wrong.

We have to take a little walk down the real world of everyday terrorism activity. There are people who do not commit what might be held by the courts to be terrorism acts but who have the custodianship of money, and that money may, for example, be about to be used for the purchase of guns—a subject that is very topical at present. I think that, if I provoke him, the Minister will confirm that these events can happen very quickly and the police may have to act at the last minute. As former Ministers opposite will know, from time to time events have occurred that have required extremely urgent action. In those circumstances—particularly now, when we have a regime in which there are to be interim orders—a threshold has to be set which I am afraid may temporarily disadvantage some people but will protect the public from possible extreme danger. We have to make a judgment about whether we do that or whether we adopt the approach which some of the briefings have suggested. However, I want to make the point that in the real world of terrorism caution has to be the watchword, particularly if the rights of individuals are fully protected in a review mechanism which is provided later. Indeed, this is also part of the answer to the point raised in the previous debate about whether there should be an executive act followed by judicial review or a judicial decision followed by judicial review. In the real world, I am afraid that an executive decision followed by judicial review is the only way of meeting the fast-moving events which occur when there is a real terrorism threat.

[Lord Lloyd of Berwick]

Does the noble Lord accept that in the real world, as I understand it, the defendant will have to be informed at once if this order is being made by the Treasury, and he can go to the next stage—to the court—and get a review?

[Lord Carlile of Berriew]

I agree that that may be the case but, even if it is, the exigencies of the situation will have been met, and that is the responsibility of government.