Terrorist Asset-Freezing etc. Bill [HL]

Lord Sassoon Excerpts

Wednesday 6th October 2010 Lords Chamber

[Baroness Hamwee]

This is another amendment for which I am obliged to Liberty and Justice. Clause 21(1) provides that,

“Nothing done under this Chapter is to be treated as a breach of any restriction imposed by statute or otherwise”.

My amendment would take that out because it seems to be a very broad power giving the Treasury considerable leeway to set on one side other statutory and common law provisions. There are exceptions in Clause 21(2) but only in relation to the Data Protection and the Regulation of Investigatory Powers Acts. I have two points. First, why do the Government consider that this exemption is necessary, particularly in such broad terms? Secondly, as a minimum it should not include a failure to act in accordance with the Human Rights Act. My noble and learned friend, who may also reply to this amendment, is a great fan of that legislation. He may be able to confirm that it is not possible to carve it out in this way or, indeed, in any way. However, I see that my other noble friend will reply to this amendment. I beg to move.

[The Commercial Secretary to the Treasury (Lord Sassoon)]

My Lords, as my noble friend has made clear, the suggestion behind the amendment is that subsection (1) of Clause 21 gives the Treasury a wide power to disseminate information. It is the intention of the amendment to limit that power. In fact, this provision applies to anyone giving information to the Treasury as well as to any information supplied by the Treasury. Therefore, the purpose of the provision is primarily to protect persons when they disclose information to the Treasury. For example, it protects a bank that has provided information about a customer to the Treasury in accordance with the requirement under the Bill from being subject to an action taken by the customer on the basis of a breach of confidence. I also note, as my noble friend does, that no disclosure under the Bill can be made in a way that contravenes the Data Protection Act. This is set out in Clause 21(2).

On the second point that my noble friend raises, the general wording of Clause 21(1) is not, as a matter of constitutional principle, capable of overriding any provision in the Human Rights Act. I trust that these points will be sufficient to reassure my noble friend that this clause is necessary and that the protections in place under Clause 21(2) meet the intention of her amendment. I hope that she will be able to withdraw it.

[Baroness Hamwee]

Indeed, my Lords, I am grateful and I beg leave to withdraw the amendment.

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Moved by

[Lord Sassoon]

57: Before Clause 22, insert the following new Clause—
“Appeal to the court in relation to designations
(1) This section applies to any decision of the Treasury—
(a) to make or vary an interim or final designation of a person,(b) to renew a final designation of a person, or(c) not to vary or revoke an interim or final designation of a person.(2) The designated person concerned may appeal against any such decision to the High Court or, in Scotland, the Court of Session.
(3) On such an appeal, the court may make such order as it considers appropriate.
(4) The making of an appeal under this section does not suspend the effect of the decision to which the appeal relates.”

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Moved by

[Lord Sassoon]

58: Clause 22, page 11, line 9, at end insert “other than a decision to which section (Appeal to the court in relation to designations) applies (appeal to the court in relation to designations)”

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Moved by

[Lord Sassoon]

63: Clause 22, page 11, line 17, leave out subsection (5)

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Moved by

[Lord Sassoon]

64: Clause 23, page 11, line 24, after “on” insert “an appeal under section (Appeal to the court in relation to designations), or”

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[Baroness Falkner of Margravine]

The report by the Constitution Committee, of which the noble Lord, Lord Pannick, and I are members, recommended that there should be consolidation of the legislation. I think there are two other Acts that relate to terrorist-asset freezing regimes. Will the Minister tell us his views on that consolidation?

[Lord Sassoon]

My Lords, I shall take these amendments in turn. As my noble friend said, Amendment 75 relates to the quarterly report that the Treasury lays before Parliament on the operation of the asset-freezing regime. The amendment specifies that the number of licences granted, varied and revoked should be included in the report. I assure the Committee that we are committed to ensuring the transparency and accountability of the asset-freezing regime, and that is why we have enshrined the practice of reporting to Parliament in the legislation. The report already provides information on many aspects of the operation of the regime, including the number of licences that have been granted each quarter, and I do not foresee any difficulties in providing the further information requested. Indeed, I am happy to commit to providing such information in the quarterly report under the powers proposed in the Bill. On that basis, I do not believe it is necessary to set out this detail in the legislation and I hope that my noble friend will withdraw the amendment.

Amendment 76 is a consequential amendment that relates to earlier amendments tabled by my noble friend, in particular those relating to Clause 2 that sought to provide the court with powers under Part 1. The amendment simply alters the language of Clause 24(1)(a) so that the quarterly report that the Treasury is required to prepare includes references to the exercise of the powers conferred on the Treasury and the court under Part 1. Having had the discussion on the amendments that seek to give the court various powers under Part 1, I am sure the Committee will agree that further discussion on this point now falls away and is no longer necessary. I therefore hope that my noble friend will not move this amendment.

Amendment 77 requires the Treasury to consult the Home Office about the appointment of an independent person to review the terrorist asset-freezing regime. I am not sure precisely what the intention is behind it and whether it is envisaged that the Treasury might ensure that the same person will be responsible for this review as the other reviews of the UK’s counterterrorism legislation. I can certainly see merit in such an arrangement, but there is also a need to ensure that the reviewer can give sufficient time and attention to this particular role.

The decision of who will review the asset-freezing regime has yet to be made. We will consider the appointment very carefully and in doing so will work closely with the Home Office. We will of course also consult other Whitehall departments where appropriate. We therefore broadly agree with the intention behind the amendment, but I hope that noble Lords will agree that it is not necessary to amend the legislation to reflect what I can assure the Committee will happen in practice.

Amendment 78 would require the independent reviewer to make recommendations in his or her first report on whether domestic asset-freezing legislation should be consolidated. It is a topic which the House discussed at some length at Second Reading. As is recognised by the Committee, we do not have the luxury of doing that within the scope of the present Bill.

The purpose of the independent review under this Bill is to report on the use of the powers included in the Bill. We believe it is important that the independent reviewer is free to examine any aspect of the asset-freezing regime and accordingly free to make any recommendations that he or she chooses. This may include recommendations on the desirability of consolidation of the asset-freezing regimes, but we believe that this is a decision that should be left to the reviewer. I hope therefore again that the Committee will agree that it is not necessary to amend the Bill and that the noble and learned Lord will not press his amendment.

Amendment 79 would require the Treasury to publish the expenses and allowances paid to the independent reviewer of the operation of the asset-freezing regime. We assume that the intention is to provide further transparency in respect of the costs associated with the independent review. We would be happy to publish this information if requested. Again, I hope that the Committee will agree that it is not necessary to amend the Bill to require the disclosure of this information, although, as I say, we will be happy to publish it. I hope therefore that the noble and learned Lord will be happy not to press his amendment.

[Baroness Hamwee]

My Lords, I am grateful to the Minister. With regard to Amendment 75, I think he said that I was seeking information about the number of licences. In my mind, I was going rather wider than that. I do not think that this is just a matter of number, but I am not sure whether I heard him correctly. He might want to come back on the content of licences as well as the number. That is what I was looking for.

The second amendment was consequential. I am not sure that it quite falls away given that we have progressed with regard to the court’s role by including appeals as well as judicial review. It would be quite perverse if the reviewer did not cover appeals and judicial reviews, so I do not think that I need to press that further.

The Minister asked whether I had in mind the appointment of the same person by the two departments for the different types of review. That was not what I was thinking of; rather it was the crossover of responsibilities between the Treasury and the Home Office as they are both involved in the same subject matter. However, he has given me the assurances I sought. I beg leave to withdraw the amendment.

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[Baroness Hamwee]

I will be quick. Clause 28 provides for offences by company officers and uses a term that I have not seen before in legislation—that they “connive” with or in something. Connivance is a term one associates with PC Plod rather than with statute, and I wonder whether this is the first time it has been used in legislation. I understand what it means, and perhaps this is a rather frivolous amendment. If so, I apologise. However, it struck an odd note.

More seriously, Amendment 81 would change the trigger for the offence in subsection (1)(b) from “neglect” on the part of a company officer to “recklessness”, implying that the person knows the likely consequences of his action. A word or two in defence of “neglect” is what I am seeking, or, of course, agreement to the amendment. I beg to move.

[Lord Sassoon]

I am happy to confirm for my noble friend that the language in respect of both issues is in fact standard language in other legislation. On the question of “connivance”, the term is standard—it is used in Section 14 of the Bribery Act 2010, for example—so the Government believe that the clause should remain as drafted. If the Committee would like more explanation, I am happy to give it, but I can give an assurance that it is standard language.

Similarly, on Amendment 81, I should make the important point that again the language as it stands in the Bill is standard and follows the drafting in other pieces of legislation. Noble Lords may be familiar with Section 37 of the Health and Safety at Work etc. Act 1974 and Section 186 of the Licensing Act 2003. Again, while I would be happy to go through the reasoning behind the substantive clause as it stands, I hope my noble friend will be content with the reassurance that these are standard provisions, and that she will withdraw her amendment.

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Moved by

[Lord Sassoon]

82: Clause 36, page 18, line 23, at end insert—
““final designation” means a designation under section 2 (including any renewed such designation);”

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Moved by

[Lord Sassoon]

84: Clause 40, page 20, line 17, after “a” insert “final”

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Moved by

[Lord Sassoon]

89: Clause 47, page 23, line 18, leave out “amendment” and insert “amendments”

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Moved by

[Lord Sassoon]

92: Schedule 1, page 25, line 5, at end insert—
“Rules of the Court of Judicature (Northern Ireland) 1980 (S.R. 1980 No.346)ZA1 The Rules of the Court of Judicature (Northern Ireland) 1980 are amended as follows.
ZB1 In the Arrangement of Orders, in the entry relating to Order 116B, after “2008” insert “and Part 1 of the Terrorist Asset-Freezing etc. Act 2010”.
ZC1 In Order 1, after rule 11(l) insert—
“(la) proceedings on an application under section 22 of the Terrorist Asset-Freezing etc. Act 2010, or on a claim arising from any matter to which such an application relates;”.ZD1 In Order 116B—
(a) in the title of the Order, at the end insert “and Part 1 of the Terrorist Asset-Freezing etc. Act 2010”,(b) in rule 1(2)(a), after “the”, in the first place in which it appears, insert “2008”,(c) after rule 1(2)(a) insert—“(aa) “the 2010 Act” means the Terrorist Asset-Freezing etc. Act 2010;”,(d) in rule 1(2)(b), after “the” insert “2008 Act or section 22 of the 2010”,(e) in rule 1(2)(c) for “has the same meaning as in section 65 of the Act” substitute “means—(i) financial restrictions proceedings within the meaning of section 65 of the 2008 Act; and(ii) proceedings in the High Court on an application under section 22 of the 2010 Act, or on a claim arising from any matter to which such an application relates”,(f) in rule 1(2)(h), for “Act” substitute “2008 Act (including that section as applied by section 23(4) of the 2010 Act)”,(g) in rule 4(3)(a)(ii), after “the”, in the first place in which it appears, insert “2008”,(h) in rule 5(1) after “2008”, insert “, or section 22 of the Terrorist Asset-Freezing etc. Act 2010, as the case may be,”,(i) in rule 36(1), after “the” insert “2008”, and(j) in rule 36(2), after “the” in the second place in which it appears, insert “2008”.”

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Moved by

[Lord Sassoon]

94: In the Title, line 2, leave out “suspected of involvement” and insert “believed or suspected to be, or to have been, involved”

[Lord Sassoon]

My Lords, I shall be brief. We have had a good and important discussion in Committee today. One of the most important things we have done is to change the legal test in the Bill, and Amendment 94 gives effect to or reflects that change in the Title of the Bill. I hope the Committee will think that it is an appropriate and fitting summary and conclusion of the debate we have had today. I beg to move.

Amendment 94 agreed