Clause 1 — Temporary validity of certain Orders in Council

Part of Terrorist Asset-Freezing (Temporary Provisions) Bill (Allocation of Time) – in the House of Commons at 8:30 pm on 8th February 2010.

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Photo of David Howarth David Howarth Shadow Secretary of State for Justice 8:30 pm, 8th February 2010

Not quite, because of what clause 2 does. To achieve that effect, we would have to vote against clause 2. I am not so annoyed about clause 2 as I am about clause 1, because clause 2 is there to protect the banks, rather than the Government. I know that the banks are unpopular, but it seems reasonable that having relied on what the Government did, the banks should be protected from any untoward consequences; the Government are in a different position.

The judgment in the al-Jedda case states that in circumstances where the Government are legislating to implement a United Nations Security Council resolution, the Human Rights Act and the European convention on human rights do not apply. That is because article 130 of the UN charter says that the UN charter and Security Council resolutions under the charter take precedence over every other treaty. In the al-Jedda case, the House of Lords interpreted that provision as including in the category of all other treaties the European convention. Because of the relationship, as found in other cases, between the European convention and the Human Rights Act, that also means that the Human Rights Act does not apply.

All through the debate, that has been an important point of interpretation of the Supreme Court, because the Supreme Court did not say that the orders were compliant with human rights standards. It said instead that because of the al-Jedda case, it was unable to consider whether human rights standards applied or not. Unless, of course, the al-Jeddah case is reversed on appeal to the European Court of Human Rights in Strasbourg, amendment 4 would leave it open to those affected by this legislation to go to court in this country and challenge it on the basis of human rights standards and to move to obtain a declaration of incompatibility. That is a possibility that we should leave open. We should not slam the door in the face of the courts as the Bill does.

The Chief Secretary has a personal interest in this, because he has certified on the front of the Bill that it complies with the European convention on human rights. At present, that might be a slightly misleading statement, because that might be true only because the convention does not apply at all. I hope that he would wish that the position was more real than that rather artificial one, and that he would argue-I might oppose him on this-that the terms of the Bill are, in reality, compliant. The argument for amendment 4 sounds technical, but it raises a very important issue of principle about the application of the Human Rights Act.

Amendment 5 is a paver for the new clause. The new clause is an attempt to amend the 2009 order in a way that has been called for from all sides of the Chamber in the debate that we have had so far. Its effect is to alter the process by which a person becomes subject to the asset-freezing regime, to change the length of time that a person can be subject to the regime on the basis of reasonable suspicion alone, and to introduce appeal mechanisms both for the bringing into force of the asset-freezing regime and for the licensing regime-a point that has been mentioned in the debate.

Under the order as it stands, the Treasury, acting on the basis solely of reasonable suspicion, and without any prior supervision by the courts, can subject a person to the full asset-freezing regime. There is absolutely no appeal. There is judicial review, and we have debated its adequacy, but the conclusion that I and many other right hon. and hon. Members have come to in the debate is that judicial review is not adequate. There is not only no provision for an appeal, but no limit to the number of times that a direction, which lasts a year, may be renewed. Effectively, that is an indeterminate-life-sentence. The Government say that they will change their ways and the directions will work differently, but in the past they have worked punitively, not just preventively. We all accept that the object of the exercise is to prevent funds going to terrorist organisations, not to punish people who are merely suspected-without any proof in court-of associating with terrorists.

The proposed changes would replace the existing process with one in which the Treasury applied to the High Court for an order to impose an asset-freezing regime. The Court, not the Treasury, would apply the order based on the facts-as in the Australian regime that has been mentioned-about whether the person was connected with terrorism and whether it was necessary to impose the order for public protection. Reasonable suspicion would not be enough; a judgment would have to be made on the basis of the facts as they were, not as the Government simply suspected them to be. The order would last for up to a year, but then, as now, its renewal would be possible through a further Treasury application, which would be judged on the same basis as the first.

I accept, however, that there are emergency circumstances in which applying for a full order might lead to excessive risks. In that situation, the proposed changes would allow the Treasury again to apply to the Court for an interim order, but then, as now, it would be able to do so on the basis of reasonable suspicion. The interim order would be restricted in a way that the Supreme Court itself said was reasonable; it would last only for a month, during which time the Treasury would be expected to apply for a full order; and its extension would be possible only to cover the proceedings on the full order or the time that it took to deal with other relevant proceedings, such as a criminal trial or those under other terrorism legislation.

The 2009 order includes a licensing system, to which Members from all parts of the House have also referred. The regime's problem, which has already been recognised, is that there is no provision for an appeal against the refusal of a licence or against a licence being granted in terms that the persons affected-the subject of the order or their family-find too restrictive. We all know the affects of such orders, especially on the wives of subjects. Several marriages have broken up; there have been mental health problems; and orders have been so restrictive that they have required mothers to ask every day of their children what money they have spent-even on sweets in the local sweet shop. Our new clause would therefore allow full appeals, not just reviews, by anyone who was affected by a licensing order and felt that the licence was too restrictive or wanted to appeal against the refusal of a licence in the first place.

Although this is emergency legislation, and although there is a feeling on all sides that something has to be done quickly, that does not mean that we should carry on doing something that is plainly wrong. It is plainly wrong to give the Executive the power, merely on suspicion, to lock people up without proper, full access to the courts. I come back to what Lord Atkin said in Liversidge v. Anderson, a case that all law students know: amid the clash of war, the laws are not silent. We will debate the question of whether this is a war on other occasions; nevertheless, the law should not be silent.

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