Terrorist Asset-Freezing etc. Bill [HL]

Lord Pannick Excerpts

Wednesday 6th October 2010 Lords Chamber

[Lord Wallace of Tankerness]

I acknowledge that point. My understanding is that if a person other than the designated person had suffered loss as a result of a decision of the Treasury, it would be possible for them to raise an action. I will get further information to confirm that to my noble friend, but the person whose designation is being challenged—the designated person—would have a forum and an opportunity in that context to seek damages. It may also, in some circumstances, be open to a person to claim damages under the Human Rights Act if the particular circumstances so arose, and therefore we not believe that any further provision for compensation is necessary.

The purpose of Amendment 52 would appear to be to increase the protection from prosecution given to a person complying with the provisions of Part 1 of the Bill. It would achieve that by specifying that no person complying with Part 1 was liable to court action as a result of such compliance. Again, the intention behind this is understandable, and we recognise that the rationale is to provide that additional protection from claims made against persons—it could be, for example, bank employees who have quite dutifully acted in compliance with the requirement under Part 1 of the Bill. However, we do not believe that the proposed clause is necessary. It is already a defence to claim that a person was acting in compliance with a lawful requirement, and the Government believe that this principle is sufficiently well established that the drafting of the Bill does not need to be amended. In fact, the basic principle is already there, and we do not need to add to it; indeed, it is often the case that when you add to something that is already well established in principle, you sometimes can give rise to questions about the extent of the principle. We believe that that principle is there, and it is well established. Accordingly, the amendment is not necessary. In the circumstances, I hope that the noble and learned Lord, Lord Davidson, will be prepared to withdraw his amendment.

[Lord Pannick]

I would like clarification in relation to compensation. As I understood the Minister, he suggests that Amendment 57, giving the court the power to make such order as is considered appropriate, would be broad enough to empower the court to award compensation to the affected individual who had been designated. Is the Minister saying that this provision is broad enough and is intended to overturn the general principle of English administrative law—and, I presume, Scottish administrative law—that the law does not normally provide compensation for those who have suffered direct loss as the result of invalid administrative action? One normally needs to show some tort, a misfeasance—that either the official knew that what he was doing had no lawful basis or he was at least reckless. If it is the intention to give the court a power to grant compensation simply for the invalid nature of the designation, would it not be better to say so expressly in the Bill?

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[The Deputy Chairman of Committees (Baroness Morris of Bolton)]

If Amendment 70 is agreed to, I cannot call Amendments 71 to 73 because of pre-emption.

[Lord Pannick]

Noble Lords are very familiar with the problems—the unfairness and the practical difficulties—that are caused by special advocate procedures. Clause 23(4) is acceptable only if the person concerned has a right to see at least the essence of the material that is relied on in the case against him, as the Appellate Committee decided in the control order context in the AF case.

The Minister said earlier that fairness depends on its context. I ask him to state clearly on behalf of the Government whether they accept that in this context—the freezing of assets—fairness requires that the individual concerned be personally told the essence of the case against him. I cannot see how it could possibly be fair to freeze a person’s assets on a permanent basis, causing all the disruption and damage to their personal life that the Supreme Court explained in the recent case, without that person being told at least the essence of the case against them and having a fair opportunity to answer it. The Appellate Committee in AF made it very clear that the special advocate procedure is wholly inadequate to ensure fairness in that respect, so I hope that the Minister will confirm to the Committee that the Government accept that the AF principles apply in this context.

[Baroness Falkner of Margravine]

I speak to this amendment on the basis that I was a member of the Joint Committee on Human Rights in the previous Session. I recall that my noble friend the Minister said in his opening remarks some hours ago that he did not want to draw an analogy in the provisions of the Bill with control orders. However, I respectfully suggest that if he looked at the 16th report in 2010 of the Joint Committee on Human Rights, on counterterrorism policy and human rights, which concerned the annual renewal of control orders legislation, he would find that significant aspects of the problems that will arise from Clause 23(4)—not least those of the AF case, referred to by the noble Lord, Lord Pannick—are covered in the report of the committee, which was excoriating. It is a sadness that the previous Government took no account of it whatever.

I do not want to take up too much time at this point in the evening, but let me briefly summarise for my noble friend the three issues that the report raised about special advocates. Those issues were:

“(1) Lack of access to independent expertise and evidence … (2) Ability to test Government objections to disclosure of closed case”,

and, finally,

“Limits on ability to communicate with controlled person”,

after seeing the closed material. The noble Lord, Lord Pannick, has first-hand experience of this, but let me also just read one paragraph from page 21 of that report, which I think expresses quite succinctly what part of the problem is. The report says:

“The special advocates have no means of gainsaying the Government’s assessment that disclosure would cause harm to the public interest, and Government assessments about what can and cannot be disclosed are effectively unchallengeable and almost always upheld by the court. Courts inevitably ‘accord great weight to views on matters of national security expressed by the agencies who are particularly charged with protecting national security’”.

As well as highlighting the deleterious effect of late disclosure, the report touches on international comparisons and finds that no other country uses special advocates in quite the way as we do by denying the defendant—in this case, the designated person—so many rights to which a defendant would normally be entitled under human rights law.

If the Minister is not prepared, at this hour of the night, to concede that there may be some really problematic issues in retaining subsection (4), perhaps he might consider returning to the issue on Report after further consideration.

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[Lord Wallace of Tankerness]

My Lords, Amendment 70 from my noble friend Lady Hamwee raises some important points about the use of special advocates and disclosure, as has been reflected in the speeches in this—albeit short—debate.

Amendment 70 relates to the supplementary provisions in relation to anyone wishing to challenge an asset-freezing decision. Clause 23(4), which the amendment seeks to delete, applies the procedures to be followed in determining an application made to the court for a Treasury decision to be set aside. The provisions of subsection (4) require the maker of the rules of court to have regard both to the need for a proper review of the decision that is subject to challenge and to the need to ensure that disclosures are not made where to do so would be contrary to the public interest such as—to give the most obvious example—for reasons of national security.

As asset-freezing proceedings relate to issues of national security, some cases will inevitably involve the use of sensitive, or closed, material such as intelligence material that it would not be in the public interest to disclose to the individual concerned. However, I emphasise that the starting point must be that the individual is given as much information as possible, subject only to the legitimate public interest concern. However, the provisions in Clause 23 ensure that closed material can also be used in court proceedings through the special advocate system, which is the system that Amendment 70 seeks to restrict but which nevertheless should, we believe, be part of the system that is used.

The special advocate system and the disclosure procedure are designed to ensure procedural justice for individuals in admittedly difficult circumstances in which in the public interest material cannot be disclosed to them. The special advocate, who is a specially cleared lawyer, will take instructions from the individual and will then have access to the closed material. Without this subsection, the court might not be able to appoint a special advocate, whose role would be to argue for more information to be disclosed to the individual and also, in effect, to mount a challenge against the Treasury decision involving closed information.

As this debate reflects, as other exchanges have reflected and indeed as court cases reflect, the Government recognise that a range of concerns have been expressed about the special advocate system. I assure the Committee that the Government are committed to meeting our obligations under the European Convention on Human Rights with respect to a right to a fair trial and we believe that the special advocate system is part of the process. I can advise the Committee that there will be an opportunity to raise the concerns that this amendment is aimed at more widely during a consultation on a government Green Paper on the use of sensitive information in judicial proceedings. That Green Paper will aim to develop a framework for ensuring appropriate judicial and non-judicial scrutiny of intelligence and security activities in line with the Government’s commitment to individual rights, the rule of law and properly protecting national security. It is anticipated that that Green Paper will be published next year.

Ultimately, we must constantly strive to secure in a modern legal framework the best balance between the interests of justice and the interests of security. We referred earlier to the case in which the noble Lord, Lord Pannick, represented the successful appellants. I indicated to him that that case obviously related to control orders and that the Government do not necessarily accept a read-across. I think he will understand why we are not in a position to make that read-across. I pointed out to him in an earlier exchange that fact and context are important in these circumstances. However, I reiterate what I said earlier: our starting point is that, so far as is consistent with the legitimate interests of national security, we should advise persons subject to a designation order what the grounds of that order are.

I acknowledge that this is a difficult and sensitive matter. I have indicated that we want to look at this whole issue next year on the basis of a Green Paper but, for the purposes of the present Bill and this amendment, we believe that it would be a mistake and not necessarily in the interests of the person who is subject to designation for this subsection to be removed. Controversial though the special advocate’s role may be, we nevertheless believe that it will be necessary in dealing with appeals or indeed judicial reviews that may arise under these provisions.

[Lord Pannick]

Can we be clear about this? Although the Government have introduced a very welcome right of appeal for persons who are designated, the Minister is telling the Committee that there may be cases where an individual is told absolutely nothing about the reasons for his designation and he will be left to rely on the special advocate, to whom he cannot talk and who cannot take instructions from him. Is that the Government’s position?

[Lord Wallace of Tankerness]

As I believe I indicated when I started to address this matter, the starting point is that the individual should be given as much information as possible, subject to a legitimate public interest concern. That is our position. We would wish to give as much information as possible, subject to the important question of where there may be legitimate national security reasons for not going beyond a particular area. Clearly, a special advocate can argue that that is insufficient. One of the duties of a special advocate is perhaps to challenge the Treasury about whether more information should be made available. Indeed, as court cases show, the courts look at this matter very seriously. However, in terms of the amendment, we believe it is important that the role of the special advocate is in place; otherwise, the amount of protection available to the person who is the subject of a designation order may be reduced.