I beg to move, That the Bill be now read a Second time.
The whole House would wish that today's provisions were not required, yet we are realists, and we know that the real world demands action of the kind proposed in the Bill. Terrorism continues to pose a threat to the United Kingdom. Indeed, the Home Secretary recently apprised the House of the fact that the terrorist threat is now judged as severe-in other words, highly likely at any time.
As hon. Members know, terrorist organisations, including al-Qaeda, have executed or planned a succession of attacks with the aim of causing mass casualties. Many of our constituents have been affected or caught up or murdered. Yet the economics of that threat are frighteningly simple. The cost of a terrorist attack is low, yet its impact is devastating. The attacks on London on
For that reason, we seek to fight back with every appropriate weapon, which must include control of finance, assets and cash. Without resources, terror networks are unable to plan, organise or execute attacks, for which reason the United Nations requires that all states:
"Freeze without delay...assets" and
"resources of persons who commit, or attempt to commit, terrorist acts or participate in or facilitate the commission of terrorist acts".
Our tools therefore must include action against terrorist finance, which is now an important part of the UK's counter-terrorism strategy.
Before I give way to the right hon. and learned Gentleman, I should make clear that my remarks this afternoon will touch on the background to the Bill, its contents, and some of the safeguards that it is vital for the House and another place to debate.
That is very important and we look forward to hearing what safeguards will be put in place. However, it would be helpful to know why, having had ample time, the Government have never before put the provisions into primary legislation, and have relied always on statutory instruments, which were not subject to proper scrutiny.
That is a fair point, and I will talk about it later in my remarks. Suffice it to say, the United Nations Act 1946 was fairly clear, and it is probably worth reading the relevant clause for the benefit of the House:
"If...the Security Council of the United Nations call upon His Majesty's Government in the United Kingdom to apply any measures to give effect to any decision of that Council, His Majesty may by Order in Council make such provision as appears to Him necessary or expedient for enabling those measures to be effectively applied, including...provision for the apprehension, trial and punishment of persons offending against the Order."
In the eyes of the Government, that was an effective legal base on which to introduce terrorism legislation.
I am happy that the Government felt that that was the effective legal base. The issue that many of us want to raise is this: if such matters are not debated in Parliament, the disadvantage is that the necessary safeguards are often not put in place. The problem-on both sides of the House-is that the Government seem not to believe that Parliament is the proper place for such decisions.
Parliament is the proper place to debate those safeguards. That is why, alongside this temporary Bill, we published a full Bill that will transpose the relevant orders into statutory legislation. We will debate that question a little later, but it is vital that the House is given a full opportunity to pressure-test the proposals in that second, main Bill.
As we know, the measures are fairly draconian, but what does the Minister think was the original intention? Was the standard that the Government would have only to say that a person was involved in terrorism, or would they have needed a reasonable suspicion or evidence? What was the standard or test originally and what is it today? Could it be that the original test required something higher?
The 1946 Act did not set out any such test; rather, it set out a broad power for the Government to introduce measures, including those for
"the apprehension, trial and punishment of persons offending against the Order."
That was the legal basis that was tested by the Supreme Court. The Supreme Court's judgment in taking away the foundation on which the Government had rested was reasonably narrow. The Supreme Court refused to read "expedient" as wide enough to cover reasonable suspicion-that is perhaps the point that the hon. Gentleman was making. Rather, it concluded that it would be wrong to give "expedient" such an expansive meaning where the result is such an interference with individuals' rights.
That is the crucial point. The Court made its decision because the order undermines fundamental rights. The Court was making the point that the Government should not undermine fundamental rights, and especially not without any parliamentary procedure. The right hon. Gentleman seems to be rearguing his case before the Supreme Court. He does not seem to accept the fact that he lost the case.
The reason why I am here this afternoon is that we lost the case. The point that I was hoping to make is that under the terms of the United Nations Act 1946, which I have read out, it is quite easy to see how the Government proceeded in good faith, because that Act appeared to give quite generous provision for the Government to bring forward proposals giving effect to UN Security Council resolutions.
The real issue is not so much the 1946 Act, but Security Council resolution 1373, the terms of which the Supreme Court referred to in determining that the orders should be quashed. The court talked about reasonable suspicion and whether it was a basis for taking action.
I will address that point slightly later, because it touches on the issue of designation, on which it is important to debate the test that the Government must meet. Just to clarify, the Supreme Court struck down the legal basis for the Terrorism (United Nations Measures) Order 2006. However, two further terrorism orders depend on the same provision in the 1946 Act, which is why they are the subject of the legislation before us today. There is a fourth order-the Al-Qaida and Taliban (United Nations Measures) Order 2006-of which the Supreme Court struck down article 3(1)(b), which concerns United Nations Security Council resolution 1267, and I will touch on that in more depth in a moment or two.
The history of our fight on this front is not long. The asset-freezing regime introduced by the Security Council dates back only to 1999, when it was established as part of the fight against the Taliban. It was quickly extended to include Osama bin Laden and persons associated with al-Qaeda. In the weeks following
The United Kingdom was the first nation to be judged fully compliant with the international standards set by the Financial Action Task Force. Today, around £375,000 in suspected terrorist assets is frozen. That includes around £150,000 frozen under the secondary legislation in the terrorism orders. A much smaller figure is frozen under the Terrorism Act 2006, on which the Supreme Court passed judgment.
When, therefore, the Supreme Court struck down the legal basis on which we acted in good faith, we thought it imperative to act rapidly to present this Bill before the House. Our use of the United Nations Act 1946 was, as I have argued, logical because it says that the Government can make provisions through Orders in Council when "necessary or expedient". As my hon. Friend the Exchequer Secretary has already pointed out, the Court of Appeal agreed with the judgment; the Supreme Court did not, which is why we find ourselves here this afternoon.
That brings us to the issue of what the Government are doing now about the Supreme Court's judgment. Why have they not simply used the 2001 Act to freeze the assets of such individuals, as Lord Hope in the Supreme Court said specifically that, in his opinion, that Act would apply?
I am referring to sections 4 and 5 of the Anti-terrorism, Crime and Security Act 2001. Lord Hope said that the freezing regime in that Act applied to the individuals before the Court in the Ahmed case.
We did not do so for the simple reason that that is not a sufficiently general defence. Indeed, the 2001 Act deals with threats emanating from outside the UK, whereas the terrorism order regime that we are seeking to legislate for today touches on threats that emanate from inside the UK, specifically from UK individuals.
This sounds like a point of detail, but it is crucial to what is happening today. Section 5 of the 2001 Act applies the freezing regime not just to individuals abroad, but to any individual in this country who is assisting that individual. What the Minister says applies only to circumstances where the whole plot is domestic. That did not seem to apply in the cases before the Court; how many other cases are there where the plot is entirely domestic?
I could not speculate on how many cases the security services are monitoring where the threat is entirely domestic, but let me be clear that the provision to which the hon. Gentleman is alluding would not cover UK persons unless we could demonstrate a link to external persons who pose a direct threat to the UK or to UK nationals. In the case of a UK plot, the link would, as the hon. Gentleman says, be absent. The point of the regime is that it is designed to enable preventive action. That is why, as is common in much national security legislation, the thresholds in question include reasonable suspicion.
The right hon. Gentleman will be familiar with much of the anti-terrorism legislation in place, so he will know that most Acts have provided for at least limited repeal or review of the orders made thereunder. The right hon. Gentleman has known for a long time that he might have to legislate in this context, but his Bill provides for no form of review or appeal against the scope of the freezing orders or, for that matter, against designation. Why did he not make such provisions in the Bill?
I hope to touch on the question of judicial review later in my remarks, but there are three basic points to be made in response to the right hon. and learned Gentleman. First, the Government were relying on the United Nations Act 1946 in good faith. Before the Supreme Court passed judgment, it would not have helped our case to bring legislation forward that showed that we were worried about that or that we wanted to provide for a different legal basis.
Secondly, that judgment having been passed, it is surely right for the Government to bring forward comprehensive legislation to deal with the problem that we are trying to solve. I personally do not think that such legislation should be whipped through the House. Even for a period as short as eight weeks, such proposals, if transposed into legislation, should benefit from Select Committee pre-legislative scrutiny and be subject to a review by Joint Committees, which would take a considerable period. However, because the Supreme Court did not grant a stay in its judgment, about £16,500 linked to about 14 people could, under the Terrorism Act 2006, suddenly be made available. My view was that the best strategy was to put in place temporary legislation to help ensure that the banks kept those assets frozen while the House was able to take the time to put on the statute book a more substantive answer to the Supreme Court's judgment.
When the matter was discussed with the Treasury last week, plan A was to put a Bill on the statute book in eight weeks. The sudden conversion to greater time being spent and more pre-legislative scrutiny arises simply as a consequence of the Supreme Court's judgment on Thursday to quash the orders. What else has accounted for the Chief Secretary's change of mind?
There is the simple idea that eight weeks is not an ideal time in which to pass the legislation. The legislation could have gone through in eight weeks, but if it is possible to give the House more time to debate it, that is surely right. What changed last week was the Supreme Court's decision not to grant a stay. It would have been unreasonable to ask the banks to keep the money frozen for the amount of time it would have taken the House to give the matter proper consideration.
My right hon. Friend has published the draft Bill, which is available in the Vote Office, and I welcome his invitation to my Committee to scrutinise it. Were we required to do so, however, it would not take us eight weeks to produce a report on the Bill. I have half scrutinised it already, and I can tell him now what the issues are, including lack of right of appeal and the test to designate someone in the first place.
The route available now to the Government -the emergency Bill today and a longer period of scrutiny-could have been the plan originally discussed between ourselves and the Treasury when the issue first arose. Suddenly, the Government have had a change of heart. We could have had the emergency legislation before us today and the longer discussion period for the Bill, but when the Supreme Court issued its original judgment, the longer Bill was the preferred option. There was no sense then from the Treasury that there was a plan B. It has suddenly arisen as a consequence of last Thursday's judgment.
The answer to the hon. Gentleman is simple. The Supreme Court said that it was willing to consider a stay, but its judgment on Thursday was that it was unprepared to grant that stay. Therefore, the Government had to ensure that assets already frozen under the Terrorism Act-the orders that had effectively been quashed- remained frozen. That gives the House the opportunity to consider in more detail and depth the provisions of the orders that we will seek to put into primary legislation in a much longer period. That debate will produce a better piece of legislation at the end of it.
If passed, the Bill will restore the UK's terrorist asset-freezing regime in primary legislation, but only as a stop-gap. It will allow the House to scrutinise our proposals while eliminating any risk of a gap in our asset-freezing regime. I would like to outline briefly the Bill's effects, before touching on some of the questions around safeguards.
The Bill seeks to maintain the Treasury's power under the Orders in Council to designate persons if they meet both required conditions of the legal test: first, reasonable suspicion that the person is involved in terrorist activity; and secondly; that the designation is necessary for public protection. The effect of a designation is: to forbid dealing with a designated person's funds and economic resources; to forbid making funds or economic resources available to such persons; and to forbid funds or economic resources being made available to a person when the designated person will obtain significant financial benefit. The orders will continue to provide for licences to permit access to funds and to ameliorate the effect of the sanctions. The Treasury will remain open to the full range of legal challenge of its asset-freezing decisions. However, the Bill seeks retrospective provision for the legal authority for banks and any other institution to maintain existing freezes between the date of the Supreme Court judgment and Royal Assent.
The Chief Secretary said that the Treasury will be subject to the full weight of judicial review, but he will be the first to acknowledge that that is a limited remedy, which falls far short of the specific appeal mechanisms that should be in place to determine the justice or otherwise of particular orders as they affect particular individuals, and the designation of those individuals.
I shall discuss judicial review in a little more detail shortly. The point that I am making is simply that this Bill does not give the Treasury any retrospective protection in relation to decisions made between the handing down of the Supreme Court judgment and Royal Assent.
There are five safeguards that I wish to mention in order to provoke what I think is an important debate about the dimensions of the Bill. Let me begin by dealing with the question of who is included in its ambit. The orders that we propose to underpin ensure that-as I have said-individuals and organisations can be designated only if a reasonable suspicion test is met, and if a second test establishes that action is needed to protect the public. Freezes will be removed from those for whom the legal test fails. The Treasury has a track record of actively reviewing designations and revoking them when they no longer meet the legal tests. Of the 51 United Kingdom designations made under orders to date, 18 have been revoked following a Treasury review-for example, when criminal charges have been dropped, or when an individual is no longer considered to pose a significant threat.
The Treasury must be satisfied that there are reasonable grounds to suspect a person, and reasonable grounds for suspicion must always be based on fact. The facts are provided in a statement of case prepared by the police or the security services, and the basis for action is endorsed by the financial action taskforce. The Treasury does not casually make up a determination of what is in the interests of public protection and what is not. In determining whether a person constitutes a threat, it will consider the advice of the police and the security services.
Yes, and when individuals wish to challenge decisions that entail closed-source evidence, the special advocacy procedure is also available.
The second question on which I want to touch is whether the proposed acquisition of powers by the Executive strikes the right balance between protecting national security and protecting the rights of our citizens. The Bill aims to ensure that the Government's actions are proportionate, and that they intervene only to the extent that is necessary to disrupt terrorist finance. That approach mirrors international best practice for terrorist asset-freezing, which in turn reflects standards set out by the financial action taskforce. The orders therefore include a licensing regime which ensures that designated persons have access to legal aid and living expenses. A wide range of other expenses can also be allowed when it is judged safe for that to be done.
The licensing regime is now sophisticated and well developed, and helps us to guarantee the proportionality of asset-freezing. Last week, in her statement to the House on licensing, the Exchequer Secretary announced a new approach that will safely lighten the impact of the regime on the families of designated individuals. The Treasury will continue to report to Parliament each quarter on the operation of the asset-freezing regime.
Is the test of reasonable suspicion carried out individual by individual or organisation by organisation? If an organisation with 2,000 or 3,000 members were deemed to be a threat to the state, would it be possible to freeze the funds of those 2,000 or 3,000 people, or would they be dealt with on a case-by-case basis?
I am grateful for the opportunity to clarify the position. They would be dealt with on a case-by-case basis, and in line with code A of the Police and Criminal Evidence Act 1984, which provides the Government with guidance on reasonable grounds for suspicion.
My right hon. Friend mentioned the licensing regime, which governs people's living expenses. I do not see any provision in the draft Bill that provides for an appeal or review at the instigation of the individual concerned if he claims that the amount allowed is not enough. Is there any way in which such an individual can question the amount?
Yes, indeed. Licensing decisions can be, and are being, challenged in court to ensure that they are appropriate.
The third safeguard on which I want to touch is what qualifies an official to make a decision, because it is important for the House to consider the accountability of the decision taker. Decisions are not taken by unelected officials. Asset-freezing decisions are made personally, assiduously and carefully by the Exchequer Secretary, and officials advising her draw their counsel from either the police or the Security Service, and, where appropriate, that may include information from criminal trials. Wider evidence must also be provided, where it exists, but the final decision rests with the Minister.
The fourth question on which I want to touch is transparency and whether decisions are taken in secret or in a transparent manner. It is essential that these decisions are made in a transparent manner, so the orders will continue to ensure that designated persons are informed of their designation along with an explanation, that the public are informed of the person's name and location by a notice on the Treasury's website, and that the House is informed through a quarterly report on the operation of the regime, including information on new designations, reviews and de-listings, the amount of funds frozen and licensing statistics.
Finally, there is the critical question of how decisions taken by the Exchequer Secretary are open to challenge; we might discuss this further later. The orders we seek to underpin provide a clear route by which any individual affected by a designation or a licence can contest the Exchequer Secretary's decision. They can make an application to the High Court to have that decision set aside. Courts can then judge whether the grounds of a decision were reasonable, and can scrutinise the Minister's decision that the designation was necessary for public safety. That scrutiny will include all the material before the Treasury when the decision was made and any material available that should have been considered. The courts have the power to quash Treasury designations if they are found not to have met the strict criteria set out in the orders. At the point of the designation, the Treasury issues a legal expenses licence, which includes legal aid. That means that the designated person is able to seek legal assistance immediately and challenge the Treasury's decision.
Presumably, that is on the basis of the test of judicial review, according to my reading of the draft Bill. However, as long ago as the 2003-04 Session, my predecessor at the Joint Committee on Human Rights had already indicated that
"judicial review provides only a very limited protection against legislative orders of this kind".
My Committee comes back to that point time and again in other aspects of counter-terrorism policy, too. How can my right hon. Friend be sure that what he is proposing will be human rights compliant, bearing in mind the wealth of evidence to the contrary?
I am confident that the courts have the necessary latitude to consider the two tests that an individual needs to fail to become designated. First, there must be reasonable evidence that they are involved in terrorist activity, and the courts are perfectly able to consider the evidence on which the Minister relied when making that decision. Secondly, the courts are able to consider whether the freezing of an individual's assets is necessary in order to protect the public. Even if there is information from closed sources, procedures are available that ensure that courts are able to review that material, too.
The right hon. Gentleman is doing his best to reassure the House, but does he understand that there is a fundamental difference between judicial review and reviewing the merits? Judicial review is essentially designed to determine whether the Minister is acting properly, but reviewing the merits is basically designed to determine whether an order is just; and whereas the provisions deal with the former, they do not deal with the latter.
I understand that, but I think that the protection in place is appropriate, because in the first instance we are dealing with whether there is reasonable suspicion-and reasonable suspicion is the right point on which to rely, because we are seeking to act in a pre-emptive manner in order to ensure that the economic resources available to somebody involved in terrorist activity are not used for a terrorist attack or the maintenance of terrorist infrastructure. The test of reasonable suspicion is a lower one, but clear guidance as to what constitutes reasonable suspicion is available. It is important that the courts are able to look at the evidence available to a Minister, on which that Minister relies, and investigate whether they made a proper and rational decision based on it. Thus, a second test also needs to be considered: whether the asset-freezing order put in place is needed for the protection of the public.
Let us be clear that the court will see that evidence but the person who is the subject of the order will not see it, because the special advocate procedure is being used. It is, thus, difficult for that person to produce counter-arguments to the evidence put before the court.
Only closed-source evidence is used in the special advocate procedure, but we must ensure that appropriate checks and balances are in place. I am satisfied that against the test of reasonable suspicion judicial review is an appropriate way to ensure that Ministers act rationally and in the spirit of the law.
I wish to say a word about the sunset clause, which is important for the House to debate. We proposed a sunset clause period in this Bill ending
The Minister is being his usual charming self in explaining these matters, but I wish to press him again. There is a fundamental difference between the courts making a decision as to whether a Minister has acted properly and a decision as to whether a Minister has acted justly. The thing that I do not understand is why the Government do not think it proper to make sure that the issue of justice is involved when an appeal takes place, because that is why we are fighting terrorists. Justice is crucial to the whole argument and not to refer to it is worrying.
I do not want to take a single word away from the opportunity that we will have to debate this legislation at more length. The right hon. Gentleman makes a good point to show why the House needs some time to debate our proposed transposition of the Orders in Council, on which we are relying, into primary legislation. These are exactly the kinds of debates that we need to test. The only point that I should make this afternoon is that the judicial review test is the norm in a number of other national security contexts and courts have demonstrated readily that it can be adapted to ensure an appropriately robust level of scrutiny of ministerial decisions.
Let us return to the final question of a sunset clause. If, as I hope, the House agrees this legislation over the two days, it will need to turn its mind to considering the right procedures for debating the full legislation in order to tease out some of the questions that have just been posed. This legislation equips the Executive with strong powers and I could not be confident that, given the looming elections and recesses, this job of scrutiny could be safely dispatched and a full Bill could be taken through both Houses before
In conclusion, in these times of severe threat to our national security we cannot afford to fail to take the necessary steps to disarm terrorists or to disarm them of their financial power. Without primary legislation of the kind before the House, we will leave gaps in our defences that will give flexibility and capability to people who intend serious harm to the British public. The Bill provides for the safeguards for the citizen set out in the orders to remain in place. Those safeguards, I would argue, are tried and tested defences against the misuse of power by the Executive. At the same time, the Bill will provide Parliament with the proper time needed to consider and debate permanent legislation in full and I therefore commend the Bill to the House.
Let me make it clear that we will support the Bill tonight. We agree with the Government that there need to be proper controls in place to prevent terrorists and suspected terrorists from having access to their financial resources and the financial system. However, the Government need to recognise that we are here tonight, pushing through this emergency retrospective legislation, because they failed, despite many warnings, to put the asset-freezing regime on to a proper legislative footing. If they had heeded those warnings, we could have dealt with these issues through the proper consideration of a proper Bill, rather than with the three-clause emergency Bill before us today.
Each of us wants to ensure that our country is protected from terrorist threats. There are many aspects to those threats, but one of the essential elements is finance-the money to buy the plane tickets, to buy chemicals, or to rent a lock-up garage. Although the three orders at the heart of the Bill cover only 33 people and £151,000, that would be sufficient to fund terrorist activity. By denying terrorists or those suspected of participating in terrorist acts access to their funds and the financial system, we are restricting their ability to mount further terrorist acts.
If we freeze the assets of terrorists or suspected terrorists, it helps us to thwart the acts that they were planning, which is something that the Prime Minister emphasised when he was Chancellor. In a speech at Chatham House on
"we can create what some will call a modern 'Bletchley Park' with forensic accounting of such intricacy and sophistication in tracking finance and connections that it can achieve, for our generation, the same results as code breaking at the original Bletchley Park did sixty years ago."
He stressed that it was important not just to be able to track assets but to take the right steps to freeze those assets. He went on to say:
"Tomorrow the Privy Council will lay before Parliament a new terrorism order which will give the Treasury the power to stop funds reaching anyone in the UK suspected of planning terror or engagement with terror."
Of course, it was the 2006 order that was quashed by the Supreme Court on
"And, as terrorist finance operates on a global scale, we know that we are only as strong as our weakest links."
So what was the weakest link? It is now clear that it was the order about which the Prime Minister boasted. The modern-day Bletchley Park was neutered because the order was quashed.
I think my hon. Friend is being too kind to the Government. The problem is that this attitude is not limited to these issues-the Government, on almost every issue, would prefer legislation that is not debated in the House and that does not receive proper scrutiny to legislation that goes through the House. My hon. Friend ought not to limit his comments to this situation, serious though it is.
My right hon. Friend is right. The Government have sought to limit scrutiny of legislation on a series of measures and they have sought to override the interests of Parliament. At the heart of the reasons behind the need for the Bill today is the fact that the Government overrode the interests of Parliament-they circumvented Parliament and they are paying the price for that by having to force through this Bill.
"And such is the threat that the message must go out: we will not yield, relax, rest, ever become complacent or lower our guard."
But it seems that the complacency to which the then Chancellor of the Exchequer referred was complacency at the heart of the Treasury, which failed, despite repeated warnings, to put the orders on a proper basis that would withstand legal challenge. As I shall set out in more detail later, the Treasury has had plenty of warnings about the legislative basis for the orders, but it was complacent and it failed to act, thereby putting us in the position that we are in today of needing to pass the legislation to safeguard our nation's interests.
This is another example of the Government's cavalier attitude to Parliament. The orders, which deny fundamental human rights, were put in place without proper parliamentary scrutiny. Let me give my right hon. Friend Mr. Gummer a few more examples. The Supreme Court announced that it was quashing the orders on the same day that the Exchequer Secretary was brought before the House to explain why there had not been proper parliamentary scrutiny of another Treasury decision that related to terrorism. Later this month, we are to debate a package of reforms that will strengthen the House and weaken the Executive's grip on it, but the relevant order has been written in a way that minimises the chance of those reforms going through. Even in their dying days, the Government have yet to learn that one cannot ignore Parliament. Today's emergency Bill is a reminder of what can happen when one does. If the Government had respected Parliament and put primary legislation in place, they would have avoided having to rush through these emergency measures today.
I do not particularly want to rehearse the details of the case that the Supreme Court heard or the reasons for the Court's judgment, but I think that we need to understand why the Government are having to introduce this Bill today. As I have said, we all recognise the importance that finances and access to the financial system play in terrorism. The three orders that are covered by the Bill restrict the ability of those who are suspected of involvement in terrorist acts to access their money and the system, but that process is intrusive, as Lord Hope made clear in paragraph 38 of the Court's judgment. He said:
"The effect of the regimes that the" terrorism order and the al-Qaeda order
"impose is that every transaction, however small, which involves the making of any payments or the passing of funds or economic resources whether directly or indirectly for the benefit of a designated person is criminalised. This affects all aspects of his life, including his ability to move around at will by any means of private or public transport."
He went on to say, in paragraph 39:
"For example, HAY has been denied access to any funds since September 2005. His only permitted subsistence support is in kind provided by his wife. She is permitted, by licence from the Treasury, to access welfare benefits, which are the family's sole source of support. But she may spend money only on what the Treasury determines are 'basic expenses'. Until recently she was required to report to the Treasury on every item of household expenditure, however small, including expenditure by her children."
The impact of the restrictions on the lives of the people who are affected by the orders should not be underestimated. In paragraph 31, Lord Hope referred to three suspects-A, K and M-and explained the effects of the orders on them. He said:
"A and K no longer live with their families, and their current whereabouts are unknown. Their solicitor, with whom they have not been in contact for a number of months, attributes their disappearance to the damaging effects upon them and their families of the regimes to which they were subjected by the Treasury. It placed an extraordinary burden on their wives, created significant mental health difficulties and led ultimately to the breakdown of their marriages. M's marriage has also broken down, but he has continued to have a close relationship with his children. He lives at his ex-wife's address where his children live also."
Given the hon. Gentleman's understandable concerns about the impact of such measures on families, does he welcome, as I do, the Treasury's recent decision not to investigate or impose on spouses restrictions such as those he is concerned about? Many of us share his concerns about spouses, but the Treasury has already acted on those issues.
I am trying to illustrate the impact that the regime has. The Treasury has relaxed some of the rules and there has been a change in relation to the nature of the three orders. There has also been reform of the system of licensing and exemption. In the 2009 order, there is much greater acceptance of the terms; indeed, the Treasury is trying to migrate a number of the people who are covered by the earlier orders on to the 2009 order.
The judgment continues:
"A, K and M have never been charged or arrested for terrorism related offences."
So the Government have introduced an intrusive regime that denies people who are suspected of crimes some of their fundamental rights under the European convention on human rights, including those under article 1 on protection of property, article 8 on respect for privacy and family life and article 6 on the right to a fair trial. As Lord Brown argued in paragraph 192:
"The draconian nature of the regime imposed under these asset-freezing Orders can hardly be over-stated...Undoubtedly, therefore, these Orders provide for a regime which considerably interferes with the...rights".
He went on:
"Similarly, it is indisputable that serious questions arise as to the sufficiency of protection of the article 6 rights of those designated."
Before the hon. Gentleman moves on to the fundamental rights aspect of the orders, may I bring him back to an earlier quote from the Supreme Court's judgment, which stated that A and K have disappeared? How does it help the fight against terrorism that people who are suspected of taking part in terrorism simply go underground?
The hon. Gentleman has a point. I assume, and hope, that while A and K might have disappeared in the eyes of their solicitors and the judges, they have not disappeared in the eyes of the police and security services. Perhaps the Minister can clarify that point later. It would be a perverse reaction to the orders for A and K to disappear without trace.
What was the basis of the orders? As we have established, they were introduced under section 1 of the United Nations Act 1946, which was enacted to enable the implementation of the UN charter and Security Council resolutions. Measures under section 1 of the Act are introduced by Orders in Council, so there is no primary legislation or secondary legislation under either the affirmative or the less onerous negative procedure. So those fundamental breaches of human rights were put into force by the Executive-the Government-and not by Parliament. The Supreme Court has ruled that the orders go beyond what is required to implement the relevant Security Council resolution and are therefore ultra vires, but how did they go beyond the resolution? It was because of the reasonable suspicion test. Article 4(2) of the Terrorism (United Nations Measures) Order 2006 states:
"The conditions are that the Treasury have reasonable grounds for suspecting that the person is or may be-
(a) a person who commits, attempts to commit, participates in or facilitates the commission of acts of terrorism".
"I would hold that, by introducing the reasonable suspicion test as a means of giving effect to" resolution 1373,
"the Treasury exceeded their powers under section 1(1) of the 1946 Act. This is a clear example of an attempt to adversely affect the basic rights of the citizen without the clear authority of Parliament"
The fact that the Treasury adopted the reasonable suspicion test, which has proved unsatisfactory in the eyes of the Supreme Court, demonstrates the lack of wisdom of legislating by way of secondary legislation. Does my hon. Friend agree that if this matter had gone before the House in primary legislation, there would have been substantial protest from us and, no doubt, other right hon. and hon. Members regarding the use of the reasonable suspicion test, which is a low standard of proof?
My right hon. and learned Friend makes an important point, and it was because of the lack of parliamentary scrutiny that the Supreme Court reached the conclusion that it did on the orders.
Let me continue to quote from paragraph 61. It goes on to say that
"fundamental rights cannot be overridden by general or ambiguous words. The absence of any indication that Parliament had the imposition of restrictions on the freedom of individuals in mind when the provisions of the 1946 Act were being debated makes it impossible to say that it squarely confronted those effects and was willing to accept the political cost when that measure was enacted. In my opinion" the terrorism order
"is ultra vires section 1(1) of the 1946 Act".
So if there had been a proper parliamentary process that had sanctioned depriving those who were suspected of involvement in terrorist acts of their rights, the Supreme Court would not have quashed the orders, but in the absence of that process, the Court felt that the powers were outside the scope of the Act.
As several right hon. and hon. Members have said, there were plenty of warnings. In addition to the way in which the case was pursued through the courts, there were three other warnings to the Government about the risk that they were taking in using the 1946 Act as the basis of the terrorist freezing orders. Those warnings were the Foreign Affairs Committee report on Sierra Leone in 1999, the Newton committee report of 2003, and the precedents used in other common law jurisdictions. I shall say a little about them to demonstrate that the Government had the warnings but chose not to hear them.
The Foreign Affairs Committee looked at how the Government imposed sanctions on Sierra Leone using the 1946 Act, and highlighted the need to use primary legislation to underpin the future use of those powers. In its 1999 report, the Committee drew attention to the way in which a resolution of the Security Council about the imposition of sanctions against Sierra Leone had been implemented by an Order in Council, but the Security Council resolution did not define Sierra Leone, leaving the extent of its application ambiguous. The Order in Council defined it in terms that removed any ambiguity but arguably went beyond the scope of the resolution. In the same way, in the present order the Government arguably went beyond the scope of the Security Council resolution that they were seeking to implement.
In its report, the Committee said that the way in which the Order in Council was dealt with was unacceptable as it was subject to no parliamentary procedure. Had it been necessary-this goes back to the point made by my right hon. Friend the Member for Suffolk, Coastal-for a Minister to appear before a Standing Committee on Delegated Legislation or to defend the order on the Floor of the House of Lords, it was likely that wider attention would have been given to its true meaning and extent.
In paragraph 23 of its report the Select Committee recommended that
So the Foreign Affairs Committee highlighted the problem that we see today, where the order overreached the Security Council resolution, and recommended that the affirmative resolution procedure should be used in the future.
A second warning arose from Lord Newton's review of the Anti-terrorism, Crime and Security Act 2001, which conferred powers on the Treasury to make freezing orders on residents of a country or territory outside the UK. Comment has already been made about the number of Acts on the statute book that could be used to freeze assets. A point that Justice made in its submission on the Bill was to ask why parts 1 and 2 of that Act and parts of the Terrorism Act 2000 and the Prevention of Terrorism Act 2005 could not have been used in place of the Bill. It would be helpful if the Minister addressed that issue when winding up the debate, as it has triggered widespread concern.
The 2001 Act was reviewed by a Committee of Privy Counsellors chaired by Lord Newton. Lord Newton said in his report that powers under part 2 were unlikely to be used while the 2001 order was in place. He argued in his conclusions that
"freezing orders for specific use against terrorism should be addressed again in primary legislation, based on the well-tested provisions of the Terrorism (United Nations Measures) Order 2001".
This is another warning that the basis of the orders should be explicit in primary legislation. In retrospect, the 2001 order might not be seen as robust as later iterations, but the point that Lord Newton made about primary legislation is still valid.
The third warning was the way in which other nations have implemented the orders. Having originally opted for implementation using their equivalents of the 1946 Act, New Zealand and Australia subsequently set up the orders using primary legislation. Lord Hope responded to this by stating in paragraph 50 of the judgment:
"The regimes that both Australia and New Zealand have introduced by means of primary legislation are exacting. But they contain various, albeit limited, safeguards and in so far as they interfere with basic rights of the individual that interference has been expressly authorised by their respective legislatures."
That is not the route that the Government have chosen to go down.
So there were warnings from the Foreign Affairs Committee and Lord Newton's committee and the precedent from other common law jurisdictions that primary legislation was the preferred route, but the Government chose to ignore those and we have to put through this emergency legislation today.
No one should be under any illusions about the gravity of the measures in the Bill. Because the Supreme Court quashed the orders on Thursday morning, those subject to the orders could have accessed their bank accounts and the financial system with impunity since then. The Treasury sought the co-operation of the financial services sector to ensure that this could not happen, even though those subject to the order have the same right as you and I to use those assets.
I should like to ask the Minister about the period between the Supreme Court's quashing of the orders on Thursday and the Bill gaining Royal Assent. Can she confirm that the provisions in clause 2 are sufficient to protect banks and other financial institutions from claims made by those subject to the freezing orders if, between
Where the Treasury has been given powers to grant further directions in clause 1(3)(a), can the Minister clarify under which order-the 2001 order, the 2006 order or the 2009 order-new directions would be issued where a terror suspect has been recently identified?
The final point that I want to raise with the Minister, to which I will return at greater length in the Committee stage, is the sunset clause. As I indicated in an intervention on the Chief Secretary, until last Thursday there was only one plan in town. It was to publish a longer, substantial Bill that would put the freezing orders on a proper footing through primary legislation, with a view to completing the parliamentary process by no later than
The view then was that that would give time for adequate scrutiny and it would have allowed Parliament to debate the measures properly. That is the offer that was on the table, and we reiterated to the Exchequer Secretary last Thursday that we were content to continue down that route, as well as participating in discussion of the Bill today. We believe it is right for this to happen, and it would reduce the period during which the Government were dependent on this emergency Bill. That is the basis of the amendment that we will move later.
The issue demonstrates the importance of reviewing the patchwork of anti-terrorism legislation. In its submission, Justice asked why parts 1 and 2 of the Anti-terrorism, Crime and Security Act 2001 and parts of the Terrorism Act 2000 and the Prevention of Terrorism Act 2005 could not be used in place of the Bill. Surely it is time to move beyond a piecemeal approach to national security legislation, and consolidate the legislation and ensure that it is compatible with fundamental rights and freedoms.
The Bill is necessary, because without it those suspected of involvement in terrorist activity could have been free to use their financial assets and the financial system. We do not know how they would have used this freedom, but it would have been reckless for the Government not to take steps to restrict that access, given the Supreme Court's ruling. But in supporting the Government's actions today, we cannot and will not ignore the fact that the Government are in this mess because they failed, despite all the warnings, to put the orders on to a proper basis. To deny people's right to the freedoms that we take for granted, they bypassed Parliament and failed to seek Parliament's approval for the action that they took. The Government's repeated failure to respect Parliament has led them to the position that they are in today.
In 2006 the Prime Minister said that
"as terrorist finance operates on a global scale, we know that we are only as strong as our weakest links.".
Today proves that the weakest link was the Treasury, the Department that the Prime Minister ran. It was the Department that failed to put the orders on to a proper footing. It failed to respect Parliament. It failed to respond to the warning signs from home and abroad. In passing the Bill tonight, we are bailing out the Prime Minister and getting the Government out of a hole, but it is the right thing to do to safeguard our country.
I welcome the Bill and the speed with which the Government have introduced it. Nobody would want any Bill to have to pass all its stages in one day, and for the House to miss the opportunity of pre-legislative scrutiny, but I am wholly convinced that the serious risk of no effective provisions being in place for terrorist asset freezing following the Supreme Court decision and, significantly, following the Supreme Court's refusal to suspend that judgment, justifies the unusual action being taken by the Government today.
Opposition Members have made much about the Government somehow failing to heed the warning signs of legal action against the orders, but the High Court's quashing of the order in early 2008 was overturned later that year by the Court of Appeal.
I can understand the right hon. Lady taking a legalistic point of view, but surely she should also go to the high ground and look back to 2001 and Lord Newton's Committee, or to 2004 and her hon. Friend Mr. Dismore and his Joint Committee on Human Rights. They did not interpret the matter on legalistic grounds; they based their contention on the fact that the measures should have been in primary legislation on broad, ethical grounds.
My point is that there was not only significant legal advice that the 1946 Act was a legitimate ground for introducing Orders in Council in order to translate UN Security Council resolutions, but legal justification between October 2008 and the point at which the Supreme Court upheld once again those individual appeals. The idea that every time a piece of legislation-primary or secondary-faces a challenge in the courts, the Government should rush to Parliament to pass separate legislation in order to mitigate the challenge is ridiculous. If anybody would like to estimate the time that we would spend here legislating on that basis, they would find that none of us would get home on any night at all.
As my right hon. Friend the Chief Secretary to the Treasury said, we continue to face a serious threat from terrorism; and, despite the hard work of our police and our security and intelligence agencies at home and abroad, recent events have demonstrated that the threat remains from the al-Qaeda leadership, their immediate associates, their affiliates throughout the world and from rogue individuals who espouse their view and ideology. The scope and nature of that threat mean that we need a broad approach to tackling it. With the rule of law and the protection of human rights at its heart, the first priority of any counter-terror strategy must be to catch and prosecute those responsible for planning, facilitating and carrying out attacks, and to take action through our courts. The almost 200 successful convictions since 2001 are evidence of our commitment to, and success in, pursuing that route.
However, the threat is such that we should also use the broadest range of methods, including non-prosecution where necessary, to disrupt activity and make the UK as hostile as possible to terrorist planning and facilitation. An important element of that must be cutting the finance that funds attacks and networks. Terrorists need money to plan and carry out attacks, although, as my right hon. Friend identified, it is worrying how little an amount can cause terrible damage and loss of life. As he said, it is estimated that the 7/7 attacks on London cost £8,000. The improvised explosive devices that are used to attack our forces abroad can cost much less even than that.
Terrorist organisations also need money to sustain networks and provide financial support to terrorists and their families. The sums are likely to be greater, but they provide for the infrastructure of terror. We need to ensure that those who radicalise individuals and peddle the ideology that supports terrorism are tackled as they raise the funds for such work. It is suggested that work to limit funding internationally is successfully hampering the work of al-Qaeda. That activity is welcome, but it shows how important action on terror financing can be.
In recent years, that work has been scaled up throughout Government, involving the Serious Organised Crime Agency and the private sector. Work is in place to deter terrorists from using the financial system, to detect them when they do and to use financial tools to disrupt them. I understand that financial intelligence and investigation tools are used to support all counter-terrorist investigations, and we have excellent, specialist terrorist financial investigation capacity in this country.
Asset freezing is only one element of that work, but it is important. As my right hon. Friend said, our asset-freezing regime is based on international recognition, through the UN, of its significance in helping to counter the terror threat. As we have heard, the UN maintains under Security Council resolution 1267 a list of individuals and entities connected to al-Qaeda and the Taliban.
Security Council resolution 1373, adopted in September 2001, broadened that approach, recognising that individual states needed to take action against those within their territories who funded terrorism, even if they were not on the UN-held list. Given the fragmented terror threat and the growing phenomenon of individuals who self-radicalise or act alone following radicalisation, the legislation before us seems an important and appropriate development of the asset-freezing regime. That may well explain, as my right hon. Friend and my hon. Friend the Exchequer Secretary have explained, why the Anti-Terrorism, Crime and Security Act 2001, which confines itself to restraints on terrorists or acts that have been inspired overseas, may be insufficient. Given the fragmented terror threat, it is not inconceivable that wholly domestically organised and determined terrorist threats and networks may be operating, and we need an asset-freezing tool to use against them, too.
At the heart of the Supreme Court ruling was neither the principle of asset freezing nor even its practice in the UK, although the judges rightly commented on the onerous requirements, as other Members have said. At its heart was the translation of Security Council resolutions into UK law.
It is important for the House to understand why the Supreme Court did not consider the human rights aspect of the legislation. It thinks, and thought, that, because of the al-Jedda case, the implementation of Security Council resolutions takes precedence over all human rights under the European convention. That seems to be a wholly different position from saying that it is all right in human rights terms to pass such legislation.
I was not making that argument; I was arguing that the Supreme Court made its decision on the basis of the translation of UN Security Council resolutions into UK law, rather than on the detail of the legislation's implementation or even on some of the other questions, which Members from all parts have rightly raised.
The right hon. Lady is right in part, but she will also accept that Lord Hope's judgment, for example, was to the effect that the provisions in the orders were, in a democratic state, incompatible with civil and political rights.
Surely the key element is that, given the significant and onerous nature of the proposals, it was wrong to implement them without sufficient parliamentary oversight and scrutiny. The Government are attempting to put right the first stage of that today.
Given the seriousness of the threat, and given that there was legal advice to support the use of the 1946 Act, it is understandable that the Government thought it suitable. Its use has been ruled ultra vires, and the right response is to bring forward primary legislation, first, as quickly as possible in order to plug the gap.
Members from all parts of the House, but Opposition Members in particular, have criticised the speed with which the legislation has been brought forward, and I am sure that the Government would have liked more time for parliamentary consideration and external consultation. That, presumably, is why they asked the Supreme Court to suspend its decision: to maintain the asset-freezing orders in place while Parliament had the chance to consider the issue. That request was of course dismissed. It would be useful if my hon. Friend the Exchequer Secretary could confirm that its dismissal has potentially freed up considerable assets for terrorist use, enabling the people whom the orders covered to make free use of those assets and any financial institutions that they like. It is also worth pointing out that had not the Government moved quickly with this proposed emergency legislation, the financial institutions that have implemented the freeze could have been placed in a position whereby legal action could be taken against them.
If the Supreme Court decision is really about the will of Parliament, it is a bit hard to understand why Parliament could not be given sufficient time to consider the implications of the proposed legislation. Rightly, the Bill is temporary: its provisions will fall by the end of 2010. We should have more time to consider the nature of the provisions and the safeguards in place. This asset-freezing regime is onerous on individuals and their families. I am pleased that in introducing a new order last August to replace the 2006 and 2001 orders, the Government ensured that any restrictions are more carefully tailored to areas of genuine concern. They have made the safeguards more explicit and freed up the situation of spouses and families. Furthermore, in the last quarter, as reported in last November's report to the House, 35 licences had been issued. These licences ensure that living requirements and finance for legal assistance can be met while other assets are frozen. I hope that my hon. Friend the Minister will take the opportunity, as far as she is able, to outline those restrictions and safeguards and tell the House what kinds of licences have been issued to ensure exemptions for necessary expenditure for living costs.
It is clear that dealing with this will take more time than we have today. That is why I welcome the publication of the pre-legislative scrutiny of the draft Terrorism Asset-freezing Bill, which was published at the same time as this Bill, and which gives Committees of the House, hon. Members and external stakeholders a proper opportunity to look in detail at the provisions, safeguards, restrictions and processes that are being put in place. However, I hope that consideration of that Bill will be brought forward as quickly as possible so that the House has the opportunity for the important full scrutiny. The scale of death and destruction willed by terrorists costs money. The building of networks comes at a price. In doing the job of countering this threat, it is necessary to recognise that reality and use a range of tools to tackle it. Asset freezing is an important tool in doing that, and we must ensure that those whom we task to keep us safe have it at their disposal. The Bill will ensure that protection in the short term; for that reason, I hope that we pass it today.
We have heard three speeches in support of the Bill. I have to say that Liberal Democrat Members are not yet persuaded, but we will listen to the remainder of the arguments.
Under Security Council resolution 1373, the UK Government are obliged to take action to prevent and suppress the financing of terrorist acts and to freeze without delay the funds or other financial assets of persons who commit or attempt to commit terrorist acts. If there were purely a technical problem in giving effect to that resolution, we would all be bending over backwards to help the Government to achieve their aim; certainly, we do not want floods of money going into the acquiring of terrorist weaponry. However, that is not the issue; the issue is the position of the Supreme Court. I do not usually read Supreme Court rulings-I spend my time reading much more exciting things such as tables of economic statistics-but I was amazed by the trenchancy of the language, with references to "draconian", "drastic", "oppressive" and "paralysing" activities within the framework of these orders. The Bill has been described as very bad legislation. More importantly, in some ways, the legislation- not in our view but in the view of the Supreme Court justices-is unnecessary. That is why we remain highly sceptical about its validity.
More positively, I appreciate the fact that the Government have consulted quite extensively over the past few days. I have been consulted more extensively than at any time in my past five years in this job-even more than I was at the height of the banking crisis. In my more generous moments, I think that a spirit of consensus has broken out within Government; in my more cynical moments, I think that the Government are in a hole and desperately trying to get everybody on board. However, we will approach this constructively. My hon. Friend David Howarth and I have tabled a series of amendments that are intended to be constructive and to deal with what we think are the defects in the Bill, particularly the lack of clarity in the safeguards governing reasonable suspicion and the appeals process.
I pay tribute to the non-governmental organisations, Justice and Liberty, which have produced at very short notice-it is only 24 hours since the legislation was published in draft form-extremely impressive and detailed notes cross-referencing the legal points. That is particularly helpful to people like me who are not lawyers and tend to approach these complex legal and constitutional issues with all the enthusiasm of an ordinary member of the public faced with a mathematical economic treatise.
In terms of the nature of the problem to be addressed, let me deal first with the question whether this legislation is necessary. We have had an extended discussion, prompted by my hon. Friends the Members for Somerton and Frome (Mr. Heath) and for Cambridge, about whether it would be possible to use the alternative powers that are available, with a lengthy exchange on the Anti-terrorism, Crime and Security Act 2001. I was surprised to see Ministers swatting aside the judgments of Supreme Court justices as if they had perpetrated some elementary undergraduate error in failing to understand what the existing Acts were all about. It is possible that Lord Hope and his colleagues do not have a basic understanding of the law, but that strikes me as being rather unlikely. However, let us assume for the moment that they are wrong-that they completely misinterpreted what the 2001 Act was all about and failed to realise that there were limitations on its use. In that context, it is worth quoting what Justice said in its summary of the alternative legal powers:
"there are already a great many provisions in UK law that give effect to the government's obligations under resolution 1373. These include sections 14-19 of the Terrorism Act 2000 (criminalising the use of funds or other property for purposes connected with terrorism); Parts 1 and 2 of the Anti-Terrorism, Crime and Security Act 2001" and
"the Prevention of Terrorism Act 2005 (control orders). Even the provisions of the Proceedings of Crime Act 1998 may be used to seize funds that result from terrorist activity."
I hope that Ministers will give us a clear explanation as to why these powers are not usable or not appropriate, because the Supreme Court evidently thinks that they are.
Does the hon. Gentleman agree that the fact that there is a significant amount of doubt about this brings us back to the point that if the Government had introduced in the House the provisions that they put through outside the House, then precisely these issues could have been raised by Members of Parliament, which is the way that Parliament ought to be used?
I am sure that that is right. Mr. Hogg referred to the fact that the Supreme Court justices had described this whole process as an offence against democracy, and that is a striking way of summarising what the right hon. Gentleman says about Parliament being the democratic forum in which these debates are properly conducted.
Let me turn to the reasons why the Supreme Court justices considered these powers, which we are legitimising for a further period-the best part of a year-as draconian, drastic, oppressive and paralysing, and go over some of the points that were made. The Government quoted Lord Brown in support a few moments ago because he ruled in their favour on one order. None the less, Lord Brown said in his comments:
"The draconian nature of the regime imposed under these asset-freezing Orders can hardly be overstated. Construe and apply them how one will-and to my mind they should have been construed and applied altogether more benevolently than they appear to have been-they are scarcely less restrictive of the day-to-day life of those designated (and in some cases their families) than are control orders. In certain respects, indeed, they could be thought to be even more paralysing."
As for the orders' impact on family life, the former Home Secretary, Jacqui Smith, intervened a few moments ago to say that the Government had made an announcement to the effect that the family provisions would be relaxed. However, as I understand it, they are being enforced currently, and were described by a Supreme Court justice in the following terms:
"The overall result is very burdensome on all the members of the designated person's family. The impact on normal family life is remorseless and it can be devastating".
That language is not moderate, especially coming from people in a profession normally associated with understatement.
The deputy president, Lord Hope, concluded in discussing the orders:
"The consequences of the Orders that were made in this case are so drastic and so oppressive that we must be just as alert to see that the coercive action that the Treasury have taken really is within the powers that the 1946 Act has given them."
That is strong stuff. We should take note of it, not merely of the purely legal points being disputed.
We return to two central principles. The first is the point about reasonable suspicion. The notes prepared for us by Justice and Liberty state that other countries with similar approaches to the law have also grappled with this problem: what is the right balance between absolute proof and reasonable suspicion? Even the Australians, who could hardly be accused of being soft on terrorism and who have had to cope with bombings in Bali and elsewhere, apply a tougher standard of proof. A Minister must be persuaded that an individual is involved in terrorism. That is a somewhat stricter test than reasonable suspicion, which is why my colleague and hon. Friend the Member for Cambridge and I have tabled amendments to strengthen the safeguards on that point.
On appeals, it is worth recalling again what Lord Rodger, another justice, said:
"the harsh reality is that mistakes in designating will inevitably occur and, when they do, the individuals who are wrongly designated will find their funds and assets frozen and their lives disrupted, without their having any realistic prospect of putting matters right."
That is why appeals should be heard on issues of substance and not simply of procedure.
I am grateful to the hon. Gentleman. Will he also keep in mind page 19 of the 2004 report by the Joint Committee on Human Rights? It makes the point that judicial review, which is the only protection afforded by the draft Bill and indeed the order, affords
"only a very limited protection against legislative orders of this kind, except where they contravene European Community law."
We must recognise that judicial review per se is not an examination of the merits of an order.
Exactly. That is the point that I made, and I am grateful for the clarification.
It is to the Government's credit that they have acknowledged the problems arising from the case and are now discussing a sunset clause. There is a debate to be had about what a realistic period is. The Government propose 10 months, and I think that the Conservatives have proposed until the end of March. It is difficult to see how a Select Committee could do a proper review or both Houses could take a proper approach to the review of legislation by the end of March.
Equally, though, one should not overestimate how much time such things take. Reviews can run concurrently rather than consecutively, and Mr. Dismore helpfully suggested that his Committee works fast. We are not at all persuaded that
In conclusion, problems arise when legislation is introduced very rapidly on a 24-hour basis. Long before I got involved in politics-in the year I got married, which was just over 40 years ago-my wife and I discovered while we were making wedding preparations that her family and most of our friends who were British subjects were being declared stateless by the British Parliament, because they happened to be east African Asians. On the basis of a panic and "facts" that subsequently turned out to be wholly incorrect, they were, in effect, systematically stripped of their British citizenship.
That was not the first case of fast-track legislation, and the Bill before us will not be the last, but we must learn from experience that legislation taken in great haste and panic is often very bad legislation. Liberty's evidence on emergency legislation to the Constitutional Committee sums up not just the Commonwealth Immigrants Act 1968 but the Bill perfectly:
"When legislation is introduced into Parliament and passed within a few weeks or even days it is impossible for Parliament fully to analyse and debate the proposals put before it. It is also extremely difficult for NGOs and civil society to have the time to examine the proposals and brief parliamentarians on the likely impact...Legislation drafted in haste will inevitably contain errors, be they minor or more substantial. Even more worryingly, the policy behind such legislation will at best be ill-thought out and at worst may be motivated by political objectives to be 'seen' to be responding to an event or judgment."
That is exactly where we are today.
It is good that for the first time, we are debating what is in the orders, at least to some extent. It has been mentioned that we should have had an opportunity to do so before now. I recall from the passage of the Counter-Terrorism Act 2008 that that Bill included a section dealing with asset-freezing orders and some aspects of how they could be challenged. Mr. Hogg, Mr. Llwyd and I tabled some amendments that would have permitted us to debate those clauses, but as so often happens on Report, as a result of the timetabling motion, our amendments were never reached, so no debate on the orders ever took place.
What we are being asked to do today is to overturn the Supreme Court's decision. It is important to recognise that that does not simply involve dealing with a technical error. The Supreme Court did not overturn the orders on a technical issue; it quashed them in strong language, as was pointed out. In this emergency legislation, we are effectively bringing into law orders that were quashed by the Supreme Court in strong language.
It is interesting to read the retrospective bits in the Bill. One will protect the banks during the period from the Supreme Court's decision to Royal Assent. What would the position be of somebody who gave money during that period to someone who was subject to a freezing order? Would they have any protection?
The orders put into effect UN Security Council resolution 1373, which concerns preventing and suppressing the financing of terrorist acts and criminalising
"the wilful provision or collection...of funds...with the intention that the funds should be used...to carry out terrorist acts".
We used the United Nations Act 1946 to bring the orders into force. They allowed the Treasury to designate individuals against whom measures should be taken, and the Bill will keep them in force. It then becomes a criminal offence for any person to make available any funds-there is no de minimis level-to the designated person. Licences are granted to allow the designated person to receive payments for their daily living expenses, but the operation of those licences has been such that those people and their families have had to produce detailed accounts for the Treasury of every penny that they have spent.
I hope that, when we eventually debate the draft Bill after it has been published, we will look into the need for a requirement to consider whether there is evidence that could lead to a prosecution before using the designation mechanism. As it stands, there is no necessity to establish a connection between the designation and any suspicion of involvement in terrorist activity.
The description of the orders as "draconian" by the Supreme Court has already been mentioned, as has their effect on the individuals concerned. Sometimes, their effects have been quite astonishing. For instance, in 2008, some people who were the subject of these orders wrote to the Treasury to ask whether it was permissible under the orders to buy new boots, trainers and shoes. The Treasury responded that this raised complex issues about what constituted a basic expense as opposed to an extraordinary expense, and that these were matters for which ministerial approval would be required. That was the extent to which the orders were impinging on the lives of the individuals who were subject to them.
Under the legislation, no one is allowed to give economic assistance to someone placed under such an order. That leaves the individual or family totally dependent on the regime that the Treasury has set up. Anyone who gives such assistance is at risk of becoming the subject of an order themselves.
Absolutely; it is a criminal offence to give such assistance.
There were queries about whether paying for an Oyster card or allowing someone to borrow a car would constitute giving them economic assistance. There was constant correspondence between the solicitors representing those individuals and the Treasury to try to determine exactly where the boundaries of the orders lay. Any new legislation must ensure that there is absolute clarity on what people are permitted to do while under designation, and on what constitutes a criminal offence.
The important issue of the basis on which people are designated-the ground of reasonable suspicion-has been raised a number of times. Lord Brown said in another case in which he was discussing this standard of proof:
"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".
We are talking about a very low standard of proof. In quashing the order, the Supreme Court judges' statements made that clear. Some of the arguments in this debate have suggested that the Supreme Court's reasons related to the use of the United Nations Act 1946. I suggest that there is far more to it than that.
The hon. Gentleman is making an interesting point about reasonable suspicion. Perhaps he will accept this analogy. Police officers can arrest on reasonable suspicion, but a charge requires a much higher level of proof, and a conviction requires a yet higher one. In other words, the ground of reasonable suspicion is right at the lowest level of the hierarchy.
That is clearly the case, and that is why I am worried about the use of reasonable suspicion in imposing sanctions on individuals. We could be dealing with people about whom, yes, there might be a suspicion, but there is no proof. That is an important distinction.
In dealing with the question of reasonable suspicion, the Supreme Court had quite a lot to say. Lord Hope said that Security Council resolution 1373 was not phrased in terms of reasonable suspicion. He said that it referred to persons who
"commit, or attempt to commit, terrorist acts".
He said that transposition of the direction into domestic law raised questions about what was necessary or expedient. He clearly said:
"It was not necessary to introduce the reasonable suspicion test in order to reproduce what the Security Council resolution requires."
That was echoed in comments made by the other Supreme Court judges.
The Bill will bring in temporary legislation that will be in place for a few months at most. The draft Bill, which has been published, will produce more permanent legislation. We are not here this evening to debate the draft Bill, but it is important that it should be debated in great detail at the appropriate time, and that the issues that we have debated to some degree today-reasonable suspicion, safeguards and the appeals system, for example-should be thoroughly considered when the draft Bill is debated.
This Bill will clearly go through this evening, but I would not want it to be followed by a rush to permanent legislation. That is what would happen if we tried to get the legislation in place by
It is important to include a sunset clause in the Bill. Legislation such as this, which does virtually nothing except overturn a Supreme Court ruling-it is retrospective legislation in many ways-must be put in place only on a temporary basis. It is also important that the House should leave itself reasonable time to get the permanent legislation in place. I would certainly not be happy with any attempt to rush it through before
The challenge to strike a balance between fighting against terrorism, which we all know to be a major threat, and preserving our freedoms is one of the most difficult that the House faces. Some years ago, I was on a delegation to Russia. We were guests of the Duma, and we talked to a number of its members a short while after the Beslan outrage in which a number of children were taken hostage. The Russians asked us how we got the balance right, and I do not think that any of the British parliamentarians could say, hand on heart, that they were sure that we had ever done so.
Throughout the years when we were dealing with IRA terrorism and, more recently, as we have tried to deal with the worldwide problem, it has been difficult to strike the right balance. It is clear, however, that there is a better chance of doing so if we in Parliament-here and in the other place-have proper debates on these matters. Sometimes, we have legislated in haste, for understandable reasons, and have not got the resulting legislation entirely correct. In other areas of legislation, such as the legislation to enable local government to fight terrorism in various ways, the law of unintended consequences has come into play. Legislation passed through this House very quickly-probably under a guillotine-was used for outturns and objectives that Parliament did not intend. It is a pity that we are back today because the Government did not originally introduce a Bill to overturn the Supreme Court ruling.
The Supreme Court has not been going that long, and I suspect that there will always be some tensions between such a body and Parliament. Nevertheless, given its short history, it is a pity that we are already having to legislate to change its decision. As hon. Members have said, that decision was well considered and the judgments raised some important concerns. As I am not a lawyer, I will not go into those tonight.
When we are fighting terrorism, we have to act quickly and, yes, cutting off funds is an important component. However, we must also have a regime that is fair. As is the nature of things, reasonable suspicion is-as we have heard-a relatively low test. The world being as it is, sometimes we get the wrong person. People can end up caught in web without being involved in terrorism, but these proposals are so draconian that that would have a major impact on their family life.
That is an interesting point, because one only has to ask oneself what review mechanism is available for the person caught in the web. All the Government would have to do is satisfy the court that there was reasonable suspicion that the person was involved in terrorism, not that actual evidence existed of that involvement. It would be very difficult for a suspected person to challenge the finding of the Treasury.
Of course that would be very difficult. One suspects that some of these individuals are not necessarily wealthy or well-connected people. If the Treasury set up a regime in which these people had only a limited amount of money to live on and they were not allowed economic assistance, going to the courts would not be a realistic option in many cases, even allowing for what the Chief Secretary said earlier about recourse to legal aid.
Does my hon. Friend agree that the fundamental problem is that if one makes a mistake in this area and an innocent person is affected, it would be a real affront to justice? That person could carry that scar for the rest of his life. Unless there is a proper way to challenge the provisions, we could end up doing the terrorists' work for them.
Clearly, if some of the orders are centred on certain communities, that could be the effect. People could feel that they were being picked on. The important point to note is that it is very difficult to deny that you are a terrorist, if someone else has reasonable suspicion of that. How do you prove you are not a terrorist? A judicial review would look at the process that the Minister went through and whether it had legislative support: it would not look at the justice of the case. Even with rushed legislation, I cannot see why it cannot include some form of appeal process. It would not have to involve the whole court system, as it could be a judge sitting in a room somewhere who looked at the evidence and came to a view.
In the House, we have just been through a process-difficult for many-in which we had Sir Thomas Legg looking at our expenses and then a judge providing an appeal process. In this area, which will involve very difficult issues, I cannot see why a judge could not be appointed to consider the information available from the point of view of natural justice and to come to a speedy decision. Why go through the expense of a judicial review that may not even lead to justice?
Although the model of special counsel is in no sense ideal-many aspects of that regime are easy to criticise-such a process provides a limited redress.
What we have to consider is not only the broader picture of protecting our constituents, but the innocent man, woman or family caught in this situation, who then find that they have no easy way to get out of it. They may be caught for years in this dreadful situation with no ombudsman to help. I joked earlier about whether being subject to one of these orders might have an impact on someone's Experian credit status, but in reality, someone's life could be totally ruined by being subject to one of these orders.
If we believe that it is right, in the fight against terrorism, to use draconian powers against UK citizens in this way, we must have a system of redress and appeal. Otherwise, natural justice would be offended, and that does the fight against terrorism a disservice. However rushed this legislation, we must consider the process of appeal and the possible impact on individuals' lives. Some innocent people will be caught by this legislation, and we have to bear them and their families in mind.
Unfortunately, there has not been an opportunity for the Joint Committee on Human Rights-or anyone else, for that matter-to scrutinise the emergency legislation from a human rights point of view. That is ironic in view of the Supreme Court's reasons for quashing the order-that asset-freezing measures with a dramatic effect on individuals' fundamental rights had been made by Executive order without parliamentary scrutiny. It is not clear to me whether the lack of opportunity for the Joint Committee to scrutinise the Bill is the fault of the Government or of the Supreme Court. It is probably a mixture of both.
Personally, I would have preferred it if the Supreme Court decision had been postponed for a while, as suggested by Lord Hope, to provide at least some opportunity for parliamentary scrutiny of the emergency legislation's compatibility with fundamental rights. It looks as though the Supreme Court's order has deprived Parliament of the opportunity to scrutinise the legislation from the human rights point of view, by refusing to postpone the coming into force of that order. In that respect, Lord Hope's dissenting judgment looks a little more persuasive. My Committee has a good record of carrying out such scrutiny quickly. The last time was on the anonymity of witnesses emergency legislation. We produced that report extremely quickly, and we could have done so in this context too, in just a few days.
One further complication is whether we would have been able anyway to scrutinise properly the Bill's compatibility with the Human Rights Act, in light of the al-Jedda judgment. That is an open question, because the judgment is going to the European Court of Human Rights for determination. The al-Jedda judgment said that UN obligations trump any domestic human rights treaty obligations-in this context, the European convention on human rights and, I suppose, the Human Rights Act. However, we would have been able to scrutinise the legislation for compatibility with common-law fundamental principles, which it might also offend. Another interesting question is whether this emergency legislation, or the draft legislation that has been published, will in due course attract a certificate of incompatibility. That may test the lawyers in the light of the al-Jedda judgment.
Last March, the Secretary of State for Justice spoke at a public lecture, I believe at Clifford Chance, and said that the time had probably come to revisit the breadth of our counter-terrorism laws. This episode illustrates why that is necessary. What has happened recently in the challenges to control orders, the AF judgment and now the latest judgment illustrates the importance of such an overall review of our counter-terrorism laws to ensure that we get things right in the first place.
There is no doubt that there is a human rights obligation to protect the public from the threat of terrorism, but one of my concerns is that the House never gets an opportunity to scrutinise that threat properly. The director-general of the Security Service is happy to make speeches to the Society of Editors and answer journalists' questions, and to speak to other learned bodies, but he is not prepared to make the same speech and answer questions before a Committee of the House of Commons or a Joint Committee such as my own.
There is no doubt that it is right and proper to freeze terrorist assets, but it should be done justly and fairly. We are not talking about a huge amount of money- £150,000, which is probably only a fraction of the amount spent on lawyers to argue about the matter. It is probably less than a tenth of that amount. The judgment that I mentioned concerned five men whom the Treasury suspects of involvement in financing terrorism. It is important to note that none of the men has been charged with, let alone convicted of, terrorist financing or, as I understand it, any other terrorist offence.
We have heard about UN Security Council resolution 1373, which obliges us to act to freeze the funds of
"persons who commit, or attempt to commit, terrorist acts".
It makes no mention of freezing the assets of those only suspected of involvement in financing terrorism. We should examine our terrorism laws in that context. We have a very broad definition of terrorism, going way beyond that of the UN. We also have an enormous range of terrorism offences, which I suspect is more broad than anywhere else in the world-it is certainly in the top bracket-but even in that context none of the individuals involved has been charged with or convicted of an offence. As we have heard, there is no provision for them to challenge the basis on which they have been suspected of involvement. I shall say a little more about judicial review later.
It is worth repeating some of what was said by the Supreme Court. Lord Hope stated:
"It is no exaggeration to say...that designated persons are effectively prisoners of the state...their freedom of movement is severely restricted without access to funds or other economic resources, and the effect on both them and their families can be devastating."
He stated that the orders
"strike at the very heart of the individual's basic right to live his own life as he chooses".
Lord Brown stated:
"The draconian nature of the regime imposed under these asset-freezing orders can hardly be over-stated."
To return to my point about resolution 1373, Lord Phillips stated that it
"nowhere requires, expressly or by implication, the freezing of the assets of those who are merely suspected...Even if the test were that of reasonable suspicion, the result would almost inevitably be that some who were subjected to freezing orders were not guilty of the offences of which they were reasonably suspected. The consequences of a freezing order, not merely on the enjoyment of property, but upon the enjoyment of private and family life are dire."
We have already heard about the comparisons with other common-law countries, but the real problem is the contradiction with our own basic fundamental principles of the common law. There is no doubt that if this were a Human Rights Act case-because of the al-Jedda case we do not know whether it is-the right to property under article 1 of the first protocol of the European convention on human rights, the right to respect for the family and private life under article 8 and the right of access to the court, protected both by common law and article 6, would be engaged. That prompts the question whether the law before us, in the current emergency legislation or in its final version, will give rise to a certificate of incompatibility under a further legal challenge. Lord Phillips commented:
"Access to a court to protect one's rights is the foundation of the rule of law", and that is not provided for in the Bill. Lord Hope concluded:
"The consequences of the Orders that were made in this case are so drastic and so oppressive that we must be just as alert to see that the coercive action that the Treasury have taken really is within the powers that the 1946 Act has given them."
That was why the Supreme Court ultimately quashed the orders.
We will obviously have to have further primary legislation, but we must consider whether it is needed. We heard from Dr. Cable a long list of laws that we already have which could deal with the matter. The Chief Secretary said that they apply only to foreign cases, but we have heard no evidence today about how many of the people currently subjected to the orders in question are exclusively in the foreign domain and how many would therefore be caught by the existing laws. When the Exchequer Secretary responds, it would be helpful if she could say whether it is true to say that none of those cases could have been dealt with under the Anti-terrorism, Crime and Security Act 2001 for jurisdiction reasons, never mind for raisons d'état. Lord Rodger stated that
"the harsh reality is that mistakes in designating will inevitably occur and, when they do, the individuals who are wrongly designated will find their funds and assets frozen and their lives disrupted".
We have heard about the sunset clause, which will come into effect on
"No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed."
The other problem with the sunset clause is that it will take us into the next Parliament. My hon. Friend Mr. Gerrard said that we do not have to rush permanent legislation through by
The question is whether the new legislation will move us closer to compliance with Security Council resolution 1373. I do not believe that it will, because we will still have the grounds of reasonable suspicion for making orders, rather than the commission or attempted commission of terrorism acts. There will not be a right of appeal on the facts, and I take issue with Mr. Hogg on that. He said in an intervention that all the Government would have to prove was that a Minister had acted on reasonable suspicion. That is not right, because on judicial review, the claimant, not the Government, would have to prove on the Wednesbury test that the Minister had acted in such an unreasonable way that no reasonable Minister could have concluded that there was reasonable suspicion of an offence having been committed. Let us remember that that is on the basis of the person concerned not even having a case against them in the first place.
A lot of the evidence will be closed, possibly through the special advocate procedure, and not open to the person involved. It might possibly be available through gisting, but certainly the whole case will not be available to them. If there were a case against them, the chances are that they would have been charged and prosecuted. The prospects of judicial review under the new legislation are a chimera, because it would be impossible to secure judicial review to challenge the basis on which orders are made. We have to have a proper judicial right of appeal, as with the decisions of Sir Thomas Legg, as Mr. Syms said. If we are entitled to have that right on the question of our expenses, surely people in the circumstances that we are discussing are entitled to have a similar procedure to challenge the freezing of all their funds and assets, no matter how small they may be. Judicial review is simply not a fair way of dealing with the issue.
We have heard about legal aid and living expenses being provided under the licensing regime. I challenged my right hon. Friend the Chief Secretary about how that could be appealed against, and he said that it could be challenged in court. Again, however, that would be under the same judicial review test. He gave the example of buying trainers or books, but do we seriously expect a vast amount of legal aid money to be wasted on a judicial review challenge about whether somebody is entitled to buy books or trainers for their kids? That would be the consequence of there not being a proper right of appeal, judicial or otherwise, on the facts of what has been decided, which cannot be fair or right.
Transparency is of course important, but let us remember that in most of these cases we will publish people's names. This is the first counter-terrorism judgment that I have read that names the individuals concerned. In other cases, people are called Mr. A or Mr. B or whatever-their anonymity is protected because they have not been convicted of any offences, and quite rightly. Those in the 14, 28, or 42-day cases have their anonymity protected, as do those subject to control orders, but those in the cases to which I have referred do not. It would be difficult to protect anonymity and achieve the object of the freezing order, but we need to think about some degree of confidentiality. It might be okay to tell the banks, but is it fair to broadcast it to the next-door neighbour?
There are many issues of fairness in the Bill. I suppose the Minister will say, "Well, this is determining a civil issue, not a criminal issue," but time and again that argument has been thrown out by the courts. Whether we like it or not, when it comes to counter-terrorism legislation, the courts determine criminal responsibility, which should be done using the criminal test.
I have grave doubts about the Bill. The right hon. and learned Member for Sleaford and North Hykeham mentioned the Joint Committee on Human Rights sixth report of 2003-04. That report was published before I was on the Committee, but I wholly agree with its endorsement of the recommendation of the Newton Committee
"that freezing orders for specific use against terrorism should be addressed in primary legislation".
I think we all agree with that, which I suppose is why we are here today. If that had been done at that time, we would not be here today and the matter would have been resolved long ago.
The Joint Committee report also states clearly that
"judicial review provides only a very limited protection against legislative orders of this kind".
I concur with that. The draft legislation that we will soon be debating simply does not provide the required safeguards. I say to my right hon. and hon. Friends on the Front Bench that I suspect that after the Joint Committee has scrutinised that Bill I will be making a similar speech, should I be re-elected.
I begin by repeating what I said in the debate on the timetable motion: I accept that the Bill must pass and that it would be very unsatisfactory not to have such legislation in place, but I recognise that fact with an extremely heavy heart, because I deplore the process and what we are about to do. The Bill re-enacts the statutory instruments that were much criticised by the Supreme Court. We have been reminded by a number of right hon. and hon. Members as to the trenchancy of the criticisms of those orders made by, for example, Lord Hope.
The 2006 order went through without any parliamentary scrutiny at all. That is an extremely bad thing. We were told by the Chief Secretary to the Treasury that that was permitted by the 1946 Act, but that is not the view of Lord Hope, who said that that measure did not justify the insertion of the reasonable suspicion test. In any event, however, while the Act might have so permitted, it certainly did not require the passage of such measures by way of secondary legislation. What in fact we are doing today is simply re-enacting in primary legislation what was previously in secondary legislation that was deemed offensive in almost all its particulars by the Supreme Court.
It is worth reminding oneself of the scope of the 2006 order, which is being replicated in primary legislation. In the first place, the order creates quite serious criminal offences, which are punishable by a maximum of seven years. That is not trivial. Secondly and differently, to take up the point made by Mr. Gerrard, the designation of the person involved in terrorist activity simply involves the reasonable suspicion test, which is a very low standard of proof. In addition, there is no way of challenging that designation outside the judicial review mechanism. As I think everyone but the Chief Secretary recognises, the judicial review mechanism provides a very limited form of review.
One matter of concern to me is that the draft Bill that the House may be asked to consider in due course relies on judicial review as the only safeguard. I agree very strongly with Mr. Dismore, and indeed all others who have spoken, that there needs to be some way of reviewing the issue on the merits. The 2004 Joint Committee report echoes that point. Moreover, the freezing orders are extraordinarily wide in scope. So far as I am aware, having looked at both the draft Bill and the 2006 order, there is, aside from judicial review, absolutely no way in which the scope of the freezing order can be impugned.
I do not think that there is any good reason why proper safeguards should not have been written into the Bill. In fact, there are a number of models on which one could have drawn-pick them off the shelf!. The special counsel procedure in control orders is a case in point. I very much dislike that process, but it is better than nothing. There is no point in the Government's arguing, "Well, we couldn't do that, because we thought we were going to win the case in the Supreme Court." That shows that they were jolly badly advised, because they did not win. Not only did they not win, but as Dr. Cable said, the orders were criticised with remarkable robustness by people whose role in life is generally to understate rather than overstate their views. The Government lost not only for legalistic reasons, but for reasons of substance: the Supreme Court thought that the powers given were too draconian.
That was also the view expressed in the 2001 report under the chairmanship of my right hon. and noble Friend Lord Newton of Braintree of the predecessors of the hon. Member for Hendon on the Joint Committee on Human Rights in 2004. The Government have been told time and again that such measures ought to be in primary legislation, not only because primary legislation is the proper vehicle, but because that process enables the House and others properly to review what is proper. On any view, therefore, what we are doing today is draconian.
The measure will last for a year or so, and the sunset clause is in place, which I welcome. I hope that my hon. Friends will forgive me if I dissent from them slightly, but I think that a March sunset is probably too soon, because this is a difficult area of law. I agree with whoever said that he did not want to see our rushing through new legislation that has not properly been considered. I am inclined to think, with some hesitation, that March is too soon, and that even July is too soon. My disposition, with a heavy heart, is to go for the timing in the sunset clause.
I will be happy to end my speech after this point, because I know that my right hon. Friend the Member for Suffolk, Coastal and my hon. Friend the Member for Woking want to speak. We are doing something that is pretty draconian. There is an essential rule in life that one must observe if one is a parliamentarian: all power given away is always, on occasion, abused. That is certain. From that follow two very important consequences. First, one gives away the minimum of power possible to the officers of the state. Secondly, where one must give power away, one must restrict the exercise of that power with proper constraints, reviews and appeals. Under this Bill we are falling foul of both propositions, and I deeply regret that fact.
I will be brief. I wish to make basically two points, both of which are relevant to the issues under discussion, but have a wider application.
First, I shall say a few words about the importance of parliamentary scrutiny. Lord Hope referred in his judgment the other day to the importance of parliamentary scrutiny and the relationship between Parliament and the Executive-in short, to the ability of this House, through Back Benchers and Oppositions, to scrutinise what Governments are doing, whether in legislation, Orders in Council or whatever else.
I first entered this House 27 years ago. I believe that those 27 years have seen a diminution in our ability to hold the Executive to account and to scrutinise them properly and at length. The late Lord Weatherill, the famous Speaker, told me once that he kept a record of those speeches in this House that actually altered the course of events through the power of their arguments, and there were many in those days. Can you believe it, Mr. Deputy Speaker: speaker after speaker in this House arguing something, and the Government turning round at the end and saying, "They're right-we've lost the argument"? That is what I mean by parliamentary scrutiny. Compared with 25 or 30 years ago, we are impotent in this House when it comes to doing the job for which we were elected.
After parliamentary scrutiny, the next most important point I wish to mention concerns judicial remedy, which has been covered by many other speakers today. Designation and freezing orders are very serious matters indeed. They can have a real effect on a person's life, and not just in the short term, but in the long term. Over in the Council of Europe, which I attend from time to time, we discuss human rights. We have representatives from many different European countries, some of which have good records, some of which have bad records. A year or two ago, a Swiss lawyer, Dick Marty, brought up United Nations blacklists at the Committee on Legal Affairs and Human Rights, and we had a report on them. He told us what they were and what they meant. Through the United Nations, somebody could be put on a blacklist in relation to terrorist matters, and have their assets frozen and all the rest of it. He told us of a case in Switzerland where the restrictions were such that the person concerned could not leave his own canton, if that is another word for village.
My right hon. and learned Friend confirms that it means county.
The key point was this: what remedy did that man have in relation to that designation? The answer was none. We thought-and I think-that that was a disgrace. If we hand power to the Executive without giving the citizen a proper legal remedy-a right of appeal-we are not doing our duty. If we make a whole series of orders-designation orders, freezing orders and so on-that have such a dramatic impact on someone's life, do we as a Parliament not have a duty to ensure that we give that individual some hope of overturning them? Otherwise, what kind of world will we be living in?
My right hon. and learned Friend Mr. Hogg and others have pointed out that judicial review is limited. The special advocate procedure is limited. However, we have to do something, because it would be terrible if, in years to come, we move further in the direction of the Executive being able to do something nasty against citizens, who then do not have the right to say to an independent judge, "Listen, this isn't fair. It's not just. Please overturn it." That is one of the most important factors in our election to this Parliament: we are here to speak up for those who are dealt with in such a way by the Executive that they are defenceless. It is our job to protect them and ensure that they are protected.
Judicial remedies and appeals, and parliamentary scrutiny are two important aspects of this debate. I would hope-but we have not got the time. Oh dear! I hoped we would have had time to explore those issues at some length over the coming months, to ensure the basic rights of our citizens.
Today we are discussing what is, in fact, the main purpose of being a Member of Parliament-that is, how the citizen is protected. The danger is that all necessary terrorism legislation can easily be the means by which citizens' freedoms are eroded. Over the past 250 years of legislation, the moments of most danger to the citizens have been those when we became most aware of the danger to the nation. That is a natural link. It is extremely difficult when we face the realities of terrorism to be as careful as we ought to be about the realities of individual freedom. Yet we are fighting terrorism in order to defend that freedom. That balance is therefore essential in the defence of freedom. We are not putting the one against the other: they are both part of the same effort.
That is why I would suggest to the Government that they have done themselves a disfavour by not using the House of Commons as the mechanism by which they ensure that that balance is achieved. The Government have spoken as if, somehow, using secondary legislation-or, indeed, no legislation at all-in order to carry through their requirements has been a necessary consequence of the terrorist threat. In fact, it should be the other way round: the terrorist threat should lead the Government to come to the House of Commons to debate the issues, to ensure that what they do can then be seen as proportionate and just.
That ought to be true in the highest way, but I suggest that it also needs to be true in a rather lower way. Two of my colleagues who have spoken are lawyers. I am not a lawyer. I do not much like the way the courts make law. Law ought to be made here, but if we make the law badly here, we will encourage judges in their increasing desire to make law themselves. Faced with bad law, I understand the anger, which is the only way I can refer to the language used by the Supreme Court-a phrase I dislike entirely. I understand the anger of those judges, who saw that what they were dealing with was wholly contrary to their understanding of the demands of the common law. There is therefore a reason not only for the Government to take Parliament seriously in making such judgments for the bigger scene, but to ensure that the distinction between the purposes of the courts and the nature of Parliament is continued and supported, which is the other issue.
We also have to look carefully at the result of what we are doing today. I recently saw this connection in a wholly different way, but I have seen how, when organs of government get the bit between their teeth, it is possible to act most unjustly in respect of individuals. What I have seen has seared my view, so I say this to the Exchequer Secretary, who is going to sum up this debate. One has to recognise that many of the people involved are at least innocent enough never to be charged. The figures are interesting, are they not? Of some 51 cases, 18 have been reviewed and dropped. The Treasury has suggested that that is a compliment to its review procedure, but one could think that it was a statement about the danger of the system, because it might be that those people should never have been on the list at all and that it is not the review procedure that should be praised, but the original decision that should be criticised.
I hope that my right hon. Friend will forgive me for making a slightly legalistic point-I know he does not like lawyers very much-but if there had been a proper inter parte review, if he will forgive the phrase, the aggrieved party might have succeeded in many cases in which the Treasury has not reviewed the case in the person's favour.
I entirely agree with my right hon. and learned Friend. That is what really worries me. I could not quite do the mathematics quickly enough, but if 18 cases have been reviewed, another 33 have not been reviewed-yet the people involved in them have not been charged. It is very dangerous to have 33 people subject to draconian punishment, when there has been no possibility for them to raise the issues in a way this House would see as reasonable for citizens of the United Kingdom.
The hon. Gentleman makes exactly the right comment, but that means that we are dealing with 51 people who, to any reasonable person, may have been subject to draconian punishment-I quote the judge in using that term-yet they may not be guilty at all.
I believe that Parliament must be very careful before making judgments based on an assumption that Ministers are decent people-I am sure that the Exchequer Secretary is decent and I am sure she will look at cases very carefully-who are therefore unlikely to get it wrong.
Before I give way to the hon. Gentleman, let me say that I am a believer in the infallibility of the Pope, but it makes me extremely suspicious of the infallibility of anybody else. In that sense, I do not believe that Ministers are ever infallible. Parliament should never give to Ministers powers that depend on the degree of infallibility that a Bill like this one suggests.
The Government will always say that powers like this will be used strictly and only occasionally, but may I remind the right hon. Gentleman that, so far as is known, the Icelandic Government have never been involved in any terrorism, but their assets were frozen?
I am not sure that I should be led down that path, Mr. Deputy Speaker, as it would be a chilly one and might lead me to receive complaints from you. I shall continue, rather, with the point that the system we are talking about today depends on a degree of omniscience on the part of Ministers that, having been a Minister myself for 16 years, I do not believe should ever be accorded to them.
Secondly, the system does not provide the transparency of a proper review that we would expect for ourselves. I say to the Ministers present this evening that they should look at this issue by putting a very simple question to themselves: would they like their sons or daughters to be subject to this order? Would they feel that their sons and daughters were able to have a proper consideration of their cases? It is no good thinking about people they do feel any connection with. This is the way for any Member to look at any legislation-how do we believe any particular legislation would treat someone whom we cared about?
That explains why I believe that aspects of this legislation are both intolerable and intolerant. The first is the use of reasonable suspicion as a test. It is a proper test of deciding whether Mr. Jones on the street can properly be brought into the police station for further consideration of some event that has taken place. It is a proper test for beginning a process, but it is not a proper test for ending a process. That is why it is unacceptable.
Secondly, this is not a proper test for a Minister to use, because what will the Minister do when a group of superior people come in and say, "Minister, better not say no to this, because whereas if you get it wrong and do something unhappy to an individual, it will not serve you too badly, if you get it wrong and let the individual free of these restrictions, you may find yourself in trouble"?
I cannot sit here and listen to that. I assure the right hon. Gentleman that Treasury officials in no way make remarks like that to me when I make these designations, and I am sure that they have not done so to previous Exchequer Secretaries either.
Let me just say to the hon. Lady that they will not put it as boldly as I do because they are all very neat and charming, but what they always say to Ministers is, "Better not"-and if she has not understood that, I can well understand a number of the decisions that she has made. She has obviously not listened, because they always say, "Better not"-every one of them; it is part of the whole "Yes Minister" programme of indoctrination. Let me tell her that if she thinks anything other than that, I am even more worried about the situation we find ourselves in.
Very rapidly. My right hon. Friend and I were both Ministers for a long time and most of us had the reputation of being pretty robust, so let me say that my right hon. Friend is right.
I therefore have to tell the hon. Lady that "reasonable suspicion" is a dangerous thing to be put in the hands of any Minister. If I were her, I would refuse it, because it puts her into an impossible position, which she should, in all honour, refuse. Even if she accepts this when there is no appeal against her, she might find that judicial review reveals that she has been unreasonable and that she should not have made that decision, as any fool can see. [Interruption.] It is all very well for the Exchequer Secretary to laugh, but we are talking about the basic rights and freedoms of Her Majesty's subjects, which is no laughing matter.
Some of us have sat in this House, as I have, for 35 years, and I have always thought that my first priority was the defence of the freedom of Her Majesty's subjects. This Government have done more to bypass Parliament and more to restrict the opportunities of MPs to stand up for the freedom of their constituents than any previous Government. Lord Liverpool would have been proud of them, which is about the most insulting thing any historian could say of the present Government. The fact that Lord Liverpool was a Conservative shows just how independent I am on this issue.
I end by saying that we rarely have an opportunity to argue about the basis on which we are here. The fact that there are so few of us in our places to debate this particular issue is itself something that speaks volumes. Although the Government have received no support whatever for the basis on which they have proceeded, we know that they will take no notice whatever of the words spoken on all sides of the House. That is the real criticism of this Government.
No, I will not give way-certainly not to the right hon. Lady, who of all people has done more than almost anyone else to press forward this Government's opposition to Parliament. I merely point out to you, Mr. Deputy Speaker, that this is too serious a matter for the Government to refuse to listen to Parliament, but I have no doubt that they will still refuse to do so.
It is a pleasure to wind up this Second Reading debate on a matter of great importance, which, as we have heard during this evening's debate, excites great interest and passion. It is vital for Parliament to address issues of protecting the liberty of the individual and national security. A number of contributors to the debate have highlighted the nature of the legislation and of the orders passed under the United Nations Act 1946. The Supreme Court described the legislation as "draconian", "drastic", "oppressive", "burdensome" and "paralysing", and a number of right hon. and hon. Members have highlighted its imposition-I refer particularly to the comments of my hon. Friend Mr. Syms, my right hon. and learned Friend Mr. Hogg and my right hon. Friend Mr. Gummer. In addressing terrorism, however, it is important that we deal with the freezing of assets and prevent the financial system from being used to perpetrate terrorist acts. That is a huge issue for any Parliament to address-the key point about the Supreme Court ruling is that the matter is for Parliament to address. My hon. Friend Mr. Malins pointed out the important role of Parliament in that regard. We are therefore grateful to have the opportunity to debate the matter today.
The Opposition's view is that without the Bill we would take a substantial risk that assets of suspected terrorists that are currently frozen would be accessed, which might ultimately lead to terrorist activities. I note that the Liberal Democrats have withheld their position on whether they will support the Bill's Second Reading. In referring to Lord Hope, David Howarth made the point that all the orders made under the United Nations Act 1946 could have been dealt with under the Anti-terrorism, Crime and Security Act 2001. However, there is a risk that that might not work, and for those reasons we will support the Bill. I would be surprised if the Liberal Democrats opposed it.
In part at least, we support the Bill because of the situation we find ourselves in. We are where we are. There are two significant concerns about how we got into that position. First, by passing orders under the United Nations Act, the Government were taking a risk that at some point the existing legislation would be invalid, and that suspected terrorists would no longer have their assets frozen unless exceptional action, such as emergency legislation, was taken. Jacqui Smith, who speaks with the experience of having been Home Secretary, said that we cannot pass a new Act every time we are brought to court-that would fill up the legislative timetable. However, this is an important matter, of fundamental liberties, and surely the Government should have addressed it more quickly.
However, it is a question not just of legality. The second concern is that Parliament has been bypassed. Parliament should have been involved in determining the relevant orders. That is the essence of the Supreme Court's decision. Consequently, the Government can be criticised for doing neither what was constitutionally necessary nor what was constitutionally right.
My hon. Friend Mr. Hoban set out in forensic detail the warnings that reliance on section 1 of the United Nations Act 1946 was an uncertain basis for the Government's asset-freezing regime. Before the regime was brought in, the Foreign Affairs Committee report of 1999 on Sierra Leone recommended that the United Nations Act should have been amended so that delegated legislation made under section 1 was at least subject to the affirmative procedure, which would have given Parliament some opportunity to debate the matters. In 2003, the Newton committee report recommended that
"freezing orders for specific use against terrorism should be addressed again in primary legislation, based on the well-tested provisions of the Terrorism (United Nations Measures) Order 2001".
That view was endorsed by the Joint Committee on Human Rights later that year. There have also been international comparisons: the likes of Australia and New Zealand initially made orders under their equivalents of the United Nations Act but then brought in primary legislation that dealt specifically with such matters. In this case, the High Court found against the Government in April 2008-yes, the Court of Appeal overturned it, but the judgment was partially dissenting.
The Government cannot claim a lack of parliamentary time or opportunity to address the matters properly in primary legislation. After all, the Anti-terrorism, Crime and Security Act 2001 and the Counter-Terrorism Act 2008 were opportunities to address the matter properly and prevent the situation in which we find ourselves today. There has been a constituent failure to permit Parliament to consider the issues through primary legislation. A number of right hon. and hon. Members, most passionately my right hon. Friend the Member for Suffolk, Coastal, made the case that the Government have ignored Parliament; they have not taken it seriously. As my hon. Friend the Member for Fareham pointed out, as recently as Thursday the Government broke their undertaking on parliamentary scrutiny in respect of opt-ins under the European Union (Amendment) Act 2008. It is worth quoting what Ms Stuart, a Government Back Bencher, said on the matter last week,
"we again find that Parliament is just some irritating thing that has somehow to be dealt with."-[ Hansard, 4 February 2010; Vol. 505, c. 459.]
That describes the Government's approach to asset freezing all along, until the Supreme Court stepped in and said that it was necessary for Parliament to address the matter.
The Government have prevented Parliament from reviewing the legislation and making its voice heard for some years. Even in the Bill, they continue that practice through the sunset clause, which kicks the issue, if not into the long grass, at least beyond the next general election. It is perhaps not surprising, given comments on both sides of the House, not least from Government Back Benchers the hon. Members for Walthamstow (Mr. Gerrard) and for Hendon (Mr. Dismore) in opposition to some of the details of the Bill, that the Government do not want to bring the matter back to the House this side of a general election. It was, of course, the Government's intention to do so less than a week ago-it was striking that the Chief Secretary said that it would clearly be better to allow time. Indeed, the very reason that the Treasury applied to the Supreme Court for a stay was to allow the Government the opportunity to get the legislation through in the next two months. We could still do that-we could pass the Bill today and come back during the next few weeks to scrutinise and debate a full Bill, as was the Government's intention until very recently.
The fact that the Government have been reduced to this situation demonstrates that if one ignores Parliament too long, and fails to show Parliament respect, eventually our constitution balances itself and Parliament's voice is heard. It is a pity that the Government took such risks that emergency legislation had to be rushed through the House.
This has been an interesting debate on an issue which-as the debate has revealed-is difficult and significant. I welcome the Conservatives' support for the Bill, and hope that the Liberal Democrats will support it as well, given the severe consequences to national security-described so eloquently by my right hon. Friend Jacqui Smith-if it is not passed.
The threat to the United Kingdom today from international terrorism is real and significant. We know that terrorists need finance to carry out attacks. As we have seen, the cost need not be great, but terrorists also need finance to maintain their infrastructure, for training, equipment and recruitment, and to promote their ideology. Their capabilities are severely constrained if they have no access to funds. Over the years, the asset-freezing regime has proved to be a valuable tool for disrupting and preventing terrorist financing.
Our aim is to prevent a gap in the asset-freezing regime, and to ensure that frozen funds cannot be unfrozen and diverted and used tor terrorist purposes and that suspected terrorists do not gain free access to the United Kingdom's system. We consider it necessary to the UK's national security to act swiftly to maintain the asset-freezing regime under Orders in Council on a temporary basis while we table further legislation introducing a terrorist asset-freezing regime to primary legislation, allowing time for Parliament to scrutinise our proposals fully.
I welcomed the many and varied points raised by Members, and, in the time available, I shall do my utmost to address them. Let me deal with the major points first. Many Members asked why primary legislation had not frozen the assets at the outset. Orders in Council made under the United Nations Act have proved an accepted way for successive Governments, regardless of party, to give effect to UN Security Council resolutions. The intention of the provision is to ensure that the UK can swiftly implement its UN obligations in respect of matters affecting international peace and security.
By making Orders in Council under the UN Act, we were able to establish our terrorist asset-freezing regime in law within 12 days of UN Security Council Resolution 1373. I am sure Members will understand why rapid action was necessary to deal with terrorist finance in the weeks after 9/11. We continued to believe that the use of Orders in Council under the UN Act was the right approach, and was consistent with the way in which previous Governments had given effect to UN Security Council resolutions.
Some Members-including the hon. Members for Fareham (Mr. Hoban) and for Poole (Mr. Syms)-have asked why we did not use primary legislation once we knew, after the High Court ruling in 2008, that the orders were potentially vulnerable. We concluded that it was right to see the legal process through to the end, in order to be clear about the proper use of the UN Act and the way in which it applied to the orders in question.
I will not. I am sorry.
As Members will know, although the Supreme Court ruled that the Terrorism (United Nations Measures) Order 2006 and article 3(1)(b) of the Al-Qaida and Taliban (United Nations Measures) Order 2006 had gone beyond the scope of the UN Act, the Court of Appeal upheld the Government's position.
Other Members referred to the sunset clause. We think that waiting until the end of the year allows enough time for pre-legislative scrutiny and legislative scrutiny. Some Members agreed, while others did not. I look forward to the debate on the amendments tabled in Committee.
The UK's terrorist asset-freezing regime has been in place since 2001. These are not new powers, and the regime has been tested operationally and been improved over the years. In 2007, the UK's asset-freezing regime was judged by the financial action task force to be fully compliant with international standards. Ours was the first country to be awarded that top mark. Since then, we have improved the regime further through the Terrorism (United Nations Measures) Order 2009. It includes improved safeguards, such as the requirement that designations can only be necessary for public protection, and that asset freezes are time-limited to a renewable period of 12 months. Let me re-emphasise that the Supreme Court has not found the regime to be contrary to human rights, or to contain inadequate safeguards.
I will in a moment.
The court struck the orders down purely on the grounds that they went beyond the scope of the UN Act. David Howarth, Mr. Hogg, my hon. Friend Mr. Gerrard and others quoted what was said by the Supreme Court judges. Lord Brown said:
"I am unimpressed by the alternative grounds on which the Order is challenged, those of certainty and proportionality. Primary legislation introducing this same asset-freezing regime could not have been declared incompatible on those grounds."
"I am at present also unpersuaded that the content of the Orders could be challenged on grounds of lack of proportionality", although he did say that he need express no final view.
The crucial point that the Minister seems to have missed, which was mentioned by both Mr. Dismore and me, is that the Supreme Court thought that because of the al-Jedda case it could not consider the human rights position. The point is not that it was finding in favour of the Government, but that it could not consider the issue at all.
I do not think that that is the argument advanced by one of the judges.
Let me deal with a point raised by Dr. Cable. Why do we not use other existing counter-terrorism legislation? It has been suggested that counter-terrorism legislation is already in place, and that we should use those powers rather than introducing asset freezing. We have a comprehensive framework to counter financing of terrorism, but none of the other legislation replicates the effects of the asset-freezing regime under the terrorism orders in its preventive nature and in its ability to restrict suspected terrorists' access to the financial system. Furthermore, no other legislation contains such a comprehensive range of prohibitions on third parties' making funds available to terrorist suspects, such prohibitions being essential to preventing terrorists from circumventing the restrictions and accessing funds.
Many members have asked why we do not use the powers under the Anti-terrorism, Crime and Security Act 2001. The powers under the Act only allow for action to be taken against threats emanating from outside the UK, and can only be used in very limited circumstances in relation to persons in the UK-when the Treasury has a reasonable suspicion that such persons have provided, or are likely to provide, assistance to the persons abroad who are posing the threat to the UK. That means that many of the individuals who are currently subject to asset freezing could not have been designated under this power, including those responsible for the attempted bombing on
Control orders were mentioned. They do not freeze funds or introduce prohibition on third parties. Suspicious-activity reports under the Terrorism Act 2000 do not freeze funds; they merely delay payments. We cannot monitor spending. As for account- monitoring orders, again there are no prohibitions on third parties and funds cannot be frozen.
Our Terrorism Order 2009 sets out a number of safeguards to ensure that our powers are used proportionately. Designations can only be made when there is reasonable suspicion of involvement in terrorism, and when necessary, for public protection, and asset freezes are time limited to a 12-month period which is renewable. The Treasury actively reviews all cases, and-as Mr. Gummer pointed out-has frequently delisted people. Delistings may be due to an acquittal as a result of a decision by the Treasury that a designation is no longer in the interests of public protection. Let me give an example. In 2006, the assets of 19 persons linked to the transatlantic airline plot were frozen. Of those, seven have been delisted. Five were arrested and released without charge, one was convicted, sentenced and released, and one is awaiting trial. Twelve remain listed, 11 have been charged, seven have been convicted and three await trial. One trial has collapsed, and an urgent review is in progress.
The right hon. Member for Suffolk, Coastal also asked whether any Member present would want his or her son or daughter to be subject to these designations. I am sure that no Member would want that, but I am also sure that no Members would want a son or daughter to be a victim of a terrorist bomb or terrorist threat.
We believe in the importance of striking the right balance between protecting national security and protecting human rights. While it is true that the asset-freezing regime has an impact upon human rights, we consider this interference to be necessary in the interests of national security and public protection, and consider it proportionate to those ends.
Question put and agreed to.
Bill read a Second time; to stand committed to a Committee of the whole House (Order, this day).