Terrorist Asset-Freezing etc. Bill [HL]

Lord Pannick Excerpts

Tuesday 27th July 2010 Lords Chamber

[Lord Pannick]

My Lords, the Minister rightly emphasises that the threat from terrorism remains severe, and that asset freezing is an essential tool in combating terrorism. However, it is also vital that the measures enacted to deal with this serious problem comply with constitutional principles. It was the failure by the previous Government in that respect which led to the adverse Supreme Court judgment in February, leading to the temporary Bill and to this Bill. That history imposes an especial obligation on this House to scrutinise with especial care the proposals brought forward by the Government.

The Bill raises matters of constitutional concern, as stated in the report of the Constitution Committee, of which I am a member, and to which the Minister has already referred. The first matter of deep constitutional concern is that the Bill covers only some of the powers to freeze the assets of those suspected of terrorism. The Government have retained the separate al-Qaeda and Taliban asset-freezing regulations and have not brought those powers within the scope of this legislation. That is despite the fact that many people are designated under both types of order—that is the al-Qaeda order and this regime. It is particularly unfortunate that some powers remain under secondary legislation when they cannot be amended on a debate in this House or in the other place. There are also the separate asset-freezing powers under Part 2 of the Anti-terrorism, Crime and Security Act 2001 and under Schedule 7 to the Counter-Terrorism Act 2008. The Minister said in his introductory remarks, perhaps somewhat optimistically, that those other statutory provisions should not be confused with the provisions in the Bill. If I may respectfully say so, the Government's approach invites confusion from anyone other than a Supreme Court Justice when attempting to identify how the provisions fit together.

It is of course vital to freeze the assets of those who assist terrorism, but do we really need all these distinct powers? The answer given by the Minister in his opening remarks was to refer to the tight timetable that is consequent on the sunset clause in the temporary Bill. I am puzzled why it is not possible to address the question of drafting—it is a question of drafting—by Committee, which will be more than eight months after the Supreme Court judgment

The second point is the scope of the powers conferred by the Bill. Noble Lords will not dispute the need to enact powers to impose freezing orders against people who have been found to be involved in terrorism. It is of course right that those powers should also be available even if the state cannot prove such involvement. Noble Lords will therefore accept the need to confer such powers in relation to people whom the Minister believes, on reasonable grounds, to be involved in terrorism. The Bill goes much further than that. The Bill imposes those powers in relation to people merely because there are reasonable grounds for suspecting that they are involved in terrorism.

The noble and learned Lord, Lord Brown of Eaton-under-Heywood, said in his judgment in the Supreme Court at paragraph 199:

“To suspect something to be so is by no means to believe it to be so. It is to believe only that it may be so”.

I have difficulty understanding why it should be appropriate to confer those powers in relation to people whom the authorities do not believe, on reasonable grounds, to be involved in terrorism.

There is no international obligation to go this far, as the Supreme Court emphasised in its judgments. There is an issue of principle here, because to freeze a person's assets is a substantial restriction on their liberty. The noble Baroness, Lady Hamwee, has already referred to the comments in the Supreme Court judgments. The noble and learned Lord, Lord Hope, said that those restrictions,

“strike at the very heart of the individual’s basic right to live his own life as he chooses”.

He added that those who are subject to a freezing order are,

“effectively prisoners of the state”.

He pointed out that those powers have a devastating impact not just on the individual but on their spouse and their children.

The noble and learned Lord, Lord Brown, commented:

“The draconian nature of the regime imposed under these assets-freezing Orders can hardly be over-stated”.

I have now referred twice to the noble and learned Lord, Lord Brown. I should mention that he has a lifetime of experience of administrative law and of security issues, having served as Treasury Junior from 1979 to 1984. He sat as a judge for over 25 years. He was the president of the Security Service tribunal and the intelligence services tribunal, and he was the intelligence services commissioner from 2000 to 2006, so he knows what he is talking about.

The Minister’s response to this point in opening—why should these powers be conferred in relation to people in respect of whom there is no more than a suspicion?—was that it was thought appropriate to allow for intervention at an early stage. That fails to address the concern about the impact on a person in respect of whom it cannot even be said that there are reasonable grounds for believing that they are or have been involved in terrorism. Can the Minister also please explain why this Bill, in this respect, is drafted more widely than the relevant provisions of the Anti-terrorism, Crime and Security Act 2001 and the Counter-Terrorism Act 2008, both of which require reasonable belief and neither of which confers power merely by reference to reasonable suspicion?

My third point is to ask the Minister whether he would accept that these freezing orders can be valid as a matter of law only if the individual concerned is told sufficient of the case against him to enable him to have a fair opportunity to respond to the allegations. That was the test laid down by the Appellate Committee of this House in the AF case in relation to control orders. I suggest to the Minister that the same test must apply in relation to freezing orders. I should declare an interest in that I represented AF in the Appellate Committee in the control order case. We will, no doubt, return to these issues in Committee in the autumn, and I very much look forward to the debates. I hope and expect that this House will be as vigilant as the Supreme Court to ensure that constitutional principles are respected.

I have one other question for the Minister. There have been very few changes in the content of the Bill since the draft Bill was published in March, but there is one change of potentially great significance. The title to the Bill has been amended to add the word “etc.”. I was involved in a case in the Court of Appeal in 2007 when Lord Justice Sedley said in his judgment that the court had,

“spent two days hearing argument on the meaning of ‘is’ and ‘where’”,

so much can turn on tiny words. It would be of assistance to know what the Government mean and intend by “etc.”. Is it the intention that this Bill might be the legislative vehicle for bringing before this House and the other place reforms consequent on the current Home Office review of matters such as control orders and pre-trial detention for 28 days? I would be very grateful if the Minister could explain the Government's thinking on this matter.

[Baroness Hamwee]

My noble friend tells me that a couple of times I referred to “special advisers”; I did, of course, mean “special advocates”.