My Lords, our Amendment 1 is grouped with Amendment 1A. Our first amendment would bring the end of the time over which these provisions can apply-in other words, before both Houses have had an opportunity to consider fuller legislation-forward from
My honourable friend the Member for Cambridge rumbled the Government's objections to the July date because, had they accepted it, it would have amounted to acknowledging that the general election will be on
As we are all human, the temptation must be that, if we have a period that runs until December-I say "we" because I suppose that noble Lords will know that we have until December, whereas those in the other place will not know precisely who is batting until then-it is unlikely that anything very energetic will happen until after the Summer Recess. In other words, that would be October, and minds need to be focused and steps taken before that.
I see that Amendment 1A, tabled by the noble Baroness, Lady Noakes, proposes the long-stop date of
My Lords, my Amendment 1A is in this group, and as the noble Baroness, Lady Hamwee, said, it would replace the sunset date in Clause 1(1) with
Both the structure of the Bill and the timing constraints of our deliberations mean that parliamentary approval is more formal than substantive. We cannot realistically debate the contents of the three orders, and it is pretty certain that we would not want to approve the 2001 or 2006 orders if they were before us on a stand-alone basis. We might have less difficulty with the 2009 order, in that it has taken on board some of the criticisms made in the courts, but it, too, has problems, or at least substantive issues that ought to be debated. The noble Baroness, Lady Hamwee, has tabled amendments to the Long Title of the Bill in order to accommodate some substantive amendments which we will consider later. As I said earlier, however, I do not believe that that is an ideal way to proceed.
The Government have laid Command Paper 7806, which contains a full draft Terrorist Asset-Freezing Bill, complete with Explanatory Notes and an impact statement. As I explained on Second Reading this afternoon, we had agreed timing with the Government such that the Bill would have had two days in the other place-today and in the week after Recess-followed by three days in your Lordships' House, over a period ending roughly in mid-March. The chairman of the Joint Committee on Human Rights confirmed that his committee could have handled that March timing. The Government have now put that longer Bill on the back burner and proceeded only with this temporary provisions Bill, which is not entirely unsatisfactory. We, like the Liberal Democrats, believe that the Bill should not remain on the statute book any longer than necessary.
Amendment 1A says that the Bill can stay on the statute book until the end of April. My honourable friend Mr Mark Hoban moved a similar amendment in another place yesterday, with the date of
The date of
I could have done as the noble Baroness, Lady Hamwee, has done and tabled detailed amendments to the Bill in order to debate the substantive concerns that remain with the formulation that appears in the 2009 terrorism order, but that is merely to tinker with an interim solution. Our strong preference is for Parliament to scrutinise the detailed legislative proposals in the context of draft legislation set out in Command Paper 7806 or something like it. I cannot force the Government to bring a draft Bill to Parliament, but if the sunset clause is set at a modest end-April date, that would require the Government to act now by introducing a draft Bill or something else, rather than sit on their hands and wait for another Government to clear up the mess.
Of course I hope that my party will form the next Government and that Treasury Ministers will be led by my honourable friend Mr George Osborne. If we come to power, those Ministers will have quite enough to do to clear up the economy and the mess that it is in without having also to deal with the aftermath of a decade of incorrect use of statutory powers. That is why I hope the Government will think again and put proper primary legislation through the House as rapidly as possible.
My Lords, there is an overwhelming case for the sunset clause to last at least as long as
The second reason is perhaps somewhat less clear, and that arises from the speech of the noble Lord, Lord Myners, at Second Reading, when he indicated-I hope that I do him no injustice-that the Government's mind was not closed not only in relation to the idea of a longer-term Bill on this matter but in relation to consolidating powers of confiscation, freezing and exercising authority over the property of persons who may be involved in serious crime or, indeed, in terrorism. I appreciate that the noble Lord, Lord Myners, most certainly did not give any undertaking in that regard. I also appreciate that consolidation is now rather different from what it was about 40 years ago when I was a Member of another place and served on one or two consolidation Bill committees, when it was a very mechanical exercise altogether. One did not have to worry about creating anything new at all. It was simply a question of arithmetic, of adding two and two and two and two and coming to a conclusion. Consolidation now is much more creative. One has to consider not only the sheer crude mathematics of various statutory provisions but how one must flesh out a little here or pare a little there. Few Governments in the past 20 or 30 years have ever applied their minds to that sort of consolidation, but certainly on a matter as complicated as this-I think of the ordinary simple lawyer who has to advise a client on where he or she stands in relation to such a matter-it would be a very great blessing indeed. However, you probably could not do it in a matter of months and probably not by
My Lords, I take a different view from that of the noble Lord, Lord Elystan-Morgan. We are being asked today to approve a temporary measure on the basis that we will not have a proper opportunity fully to debate the substantive measures. I think that we all accept that those substantive measures will have a very serious effect on the individuals concerned. It is therefore incumbent on the Committee to ensure that the sunset clause is as near to today as is reasonably practicable. As I see it, the only issue is how long it will take as a matter of practicality before the substantive Bill can be properly scrutinised. That covers pre-legislative scrutiny, as well as the debate in this House and in the other place. I am surprised that the Government take the view that it will take as long as another 10 months for that to occur, even allowing for the general election and the Summer Recess. I suggest to the Committee that it is incumbent on the Minister to explain-with respect, he has not yet explained this, nor was it explained in the other House yesterday-why it is not practical for Parliament to address the substantive matters more speedily than a sunset clause of
My Lords, we believe that
I will attempt to answer the question that the noble Lord, Lord Pannick, raised about timetables. We can reasonably expect pre-legislative scrutiny to take three months, and then around a further three months of parliamentary time will be required for a Bill to go through Parliament. We have to be mindful that with an election pending there will be significantly less parliamentary time available between now and the end of July than there would normally be, so I do not think that an earlier date than
Noble Lords should bear in mind that
Pre-legislative scrutiny requires us to consult widely with a broad group of people who will be affected by this legislation. We have every reason to believe that, given the speed of representation that has already been made and some of the important points that have been raised by your Lordships today, there are critical and complex issues here that require serious scrutiny.
To pick up an observation from the noble Lord, Lord Elystan-Morgan, we should be careful not to put an unnecessary straitjacket on Parliament that would be inappropriate given the complexity of the issues and the need to give them close scrutiny. If we had put an earlier date on the sunset clause such as the end of April or the end of May, the predominant view expressed in the House is that we would be allowing inadequate time for scrutiny and that that ran the risk of legislation that had not been critically examined. Parliament would wish to see us strike a balance. We would like to be able to complete the process before
My Lords, it is worth mentioning that, ordinarily, if the pre-legislative scrutiny were to be done by a Joint Committee of both Houses, which might be appropriate here, that committee would normally call for evidence from people who had an interest in the matter-of whom there will be a great number in this case, although one or two of them may have disappeared. Pre-legislative scrutiny given by the Constitution Committee and the Human Rights Committee is rather different. It is certainly pre-legislative scrutiny, but the idea is that a Joint Committee would be very comprehensive and include the kind of consultation to which the Minister referred. If one is to do this exercise properly-and it is quite a difficult exercise-and finish it before
My Lords, what are the Government's intentions towards pre-legislative scrutiny? Do they intend to seek to set up a Joint Committee of both Houses to commence the work of scrutinising the draft legislation and when do they intend to do that? Alternatively, do they intend to start a consultation process with a public call for people to comment on the command paper that they issued last week? The command paper is rather curious. It is a wrapper around a draft Bill with Explanatory Notes and an impact statement, but without a foreword or any kind of explanation of why it is there. The Minister has referred to pre-legislative scrutiny, but it would be helpful to know what the Government's intentions are.
My Lords, I understand that whether a Joint Committee is established is a matter for both Houses to determine, but I can certainly see merit in a Joint Committee. I would expect others to express views on that matter. I have already indicated my expectation that there should be a call for evidence and an expression of views and opinions and that that should be wide and comprehensive because of the delicate and sensitive matters involved. We are trying to strike the right balance between protecting national interests from the threat of terrorism while at the same time not encroaching on the civil liberties of individuals. Parliament needs to show itself to be open to a wide range of opinions and questions.
I am sorry to press the Minister, but he said that he expected that this would happen. Surely the Government have plans. They have come in with a proposal for a sunset date of the end of December. What plans do the Government have to consult? As I pointed out, the command paper containing the draft legislation was issued in a sort of void last week and did not constitute the start of the consultation process and did not call for evidence. What plans do the Government have and when will they start?
I have already indicated to the Committee that my expectation is that we will issue a call for evidence and set up a comprehensive pre-legislative scrutiny process. Whether that matter is conducted by a Joint Committee of both Houses is for both Houses to determine not the Government.
My Lords, the noble Baroness and others are not persuaded by my July date and I am not persuaded by the April date. The practical reason that the noble Baroness is suggesting is that one should get to the full Bill, if I may call it that, by the end of April and then return to it at leisure afterwards. The reality is that there would be no appetite for that. We know the pressures on parliamentary time. It is unlikely that either House, having got fuller legislation in place, would see it as a priority to review it so quickly.
The term "straitjacket" was used. This is a matter on which we should impose a straitjacket on ourselves. The position now is unsatisfactory and how we deal with that and the conditions we impose on ourselves should not be for our convenience, but with a view to getting the best outcome, which involves many factors.
Of course, the Minister referred to balancing the needs of national security and we did not vote against the Second Reading of the Bill. I welcome his acknowledgement of the human rights matters. It is difficult to believe that it is necessary to give three months to pre-legislative scrutiny. Organisations with a particular interest in the bigger Bill are already well appraised of the issues. I asked a representative from one yesterday about the time needed-I will not say which one it was because I do not want to pin it down without prior warning-but the message that I got back was that this is something they could do very quickly indeed. The July date would have been a balance. However, I would not like to hear an excuse at a later date that insufficient time had been given to looking at what would be an extremely important Bill. On a more practical note, I can see that I am on a loser and so I beg leave to withdraw the amendment.
Amendment 1 withdrawn.
Amendment 1A not moved.
Moved by Lord Thomas of Gresford
2: Clause 1, page 1, line 4, after "following" insert "purported"
In moving this amendment, I will speak also to Amendments 3, 4, 5, 6, and 7 that are grouped with it. Amendment 2 refers to the decision of the Supreme Court on
The Bill currently gives the provisions of the orders retrospective effect and cloaks them in the authority of the United Nations Act 1946 if they derive their force from that Act. Amendment 3 removes the restrospectivity and the reference to the 1946 Act altogether so that the orders would now, instead, have their own freestanding legal force as primary legislation.
Amendment 5 is consequential. Its effect is to preserve a consequence of the current lines of the Bill which is that the provisions of the Counter-Terrorism Act 2008-about special procedures to preserve security in proceedings about financial restrictions-will apply to asset-freezing proceedings under the Bill.
Amendment 6 goes with Amendments 4 and 7. Its effect is to carry over the effect of any current purported directions of the Treasury, which the Supreme Court has said have no legal effect, into new interim orders as established by the new clause. It would mean that the Treasury would have one month from the passage of the Bill to apply to the High Court for full orders. The amendment also preserves the effect of current licences granted by the Treasury. Amendment 12 is consequential to that, so that the current orders would continue under this proposal.
Amendment 7 is the important amendment which inserts a new clause into the Bill. The effect of that new clause 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, importantly, to introduce an appeal mechanism for the licensing process. Under the order as it currently stands, the Treasury, acting on the basis of reasonable suspicion alone and without any prior supervision by the courts, may subject a person to the full asset-freezing regime. There is no appeal and no limit to the number of times a direction, which lasts for a year, may be renewed. Your Lordships heard all these criticisms at Second Reading this afternoon.
The amendment and the new clause replace the existing process with one under which the Treasury applies to the High Court for an order to impose the asset-freezing regime on an individual. The court may impose an order on the basis not of reasonable suspicion but on the basis of findings of fact that the person concerned-the individual against whom the order is directed-is connected with terrorism and that the order is necessary to protect the public from terrorism. Reasonable suspicion would not be enough for such a full order, which would last up to a year and which may be renewed on further application from the Treasury as long as the findings of fact remain valid.
For emergency situations, this draft clause provides that the Treasury would be able to apply to the High Court for an interim order on the basis of reasonable suspicion alone, but that interim order would last for a month only. In that month the Treasury would be expected to bring proceedings for the full order in the High Court which would have control of the proceedings. The interim order could be extended beyond a month but only to cover the time taken for the subsequent proceedings for a full order, or for any relevant criminal trial or other proceedings. The purpose is to replace the reasonable suspicion test with a finding of fact that the individual is connected with terrorism.
The 2009 order introduced a licensing system under which the rules that forbid giving support to the subject of the asset-freezing regime might be relaxed for certain purposes. The amendment to Article 17 of the 2009 order maintains that licensing system but does allow an appeal to the High Court both for the refusal of a licence and for the refusal to vary a licence. Your Lordships will recall that the judgment of the Supreme Court criticised many things, but one of them was the lack of any provision for appeal. The purpose of these amendments is to recast the power of making orders, to make those orders ultimately based upon fact, to provide a temporary solution for up to a month, to make sure that it is the High Court and not the Treasury which controls the making of the orders, and to provide for the right of appeal. I beg to move.
My Lords, the noble Lord, Lord Thomas, has made a good case for the amendments in this group. I will not go through the amendments in detail or comment on the particular drafting of the amendments because I sympathise with all the points that he has made. As I explained at Second Reading today, we do not regard this Bill as one to which substantive amendments should be made. Essentially the fast-track process does not lend itself to this kind of amendment. Our normal process is a deliberative one, with pause for thought after Second Reading and again after Committee. I do not know about the Liberal Democrat Benches, but I do not feel as if I have paused for thought at all today.
If the Government had introduced a Bill along the lines of the draft issued last week, we would have had a better opportunity to reflect on these amendments. If we were going to try to perfect the 2009 order, there would be other amendments that we would think worth considering. We will not be able to support these amendments today. However, is saying that, I agree that they raise valid points and I hope that we shall have a proper opportunity to consider them in the context of a full Bill at some point.
My Lords, the noble Lord, Lord Thomas of Gresford, makes a number of points with which I have very considerable sympathy. However, I say with the utmost respect that Amendments 2 and 3 may well be unnecessary. It is not a case of saying that these provisions shall have the effect as if they were primary legislation-they are primary legislation. Although there is a history that leads us back to the realms of various elements of delegated legislation, that has no real relevance to these provisions at this time.
I have immense respect, regard and admiration for the noble Lord, Lord Myners, in every context, particularly in this one. If he had been spending or mis-spending his life for the past 30 years in the courts, he could not have made a better fist of it than he did at Second Reading today. However, he said that we were interpreting UN Security Council Resolution 1373 as including a situation where a person not only was proven to have taken part in terrorism but was indeed suspected of that. That is an utterly logical and understandable attitude to take, but technically very probably a wrong one for this reason. Although that is the historical narrative of what has brought this crisis to your Lordships' House today, with regard to the actual legislation that we are considering, the United Nations resolution is totally irrelevant. If there never was such a thing as the United Nations, the legislation would stand or fall on its own feet. The fact that you may in legislation refer to or quote from poetry, from the Bible or from anywhere else makes no difference. Once you have incorporated the words in an Act of Parliament, it is the Act of Parliament under the sovereignty of Parliament that counts, not its origin.
It is often said that Parliament can do whatever it likes except make a man a woman and a woman a man. I am not sure that that restriction applies any longer. Be that as it may, Parliament has total sovereignty. It is in the exercise of that sovereignty that we are entitled to do this. We are referring to the wording of what were once delegated powers and incorporating those powers in primary legislation. It is the primary legislation that will be judged from now on. On that basis, much as I sympathise with the views expressed by the noble Lord, Lord Thomas of Gresford, on the other matters, I respectfully submit that Amendments 2 and 3 are not necessary.
My Lords, perhaps I could ask the noble Lord about Amendment 7. The Bill extends to Scotland, but I do not see any reference to the jurisdiction of the Scottish courts. Perhaps the noble Lord can tell us what role, if any, the Scottish courts might play, and what happens to somebody in Scotland whose assets are frozen.
My Lords, I share the concern of the noble Baroness, Lady Noakes, about whether today, in debating the Bill, we can address the important and difficult issue of the substantive conditions that must be satisfied before an asset-freezing order takes effect. I am also concerned that the amendment moved by the noble Lord, Lord Thomas of Gresford, seeks to confine the substantive order to circumstances where there is a finding of fact that the individual is connected with terrorism. There is a strong case for maintaining such a power in circumstances where the individual is reasonably believed to be associated with terrorism. It is a much stricter test than the test merely of reasonable suspicion that the Government wish to maintain.
First, I will make a small technical point. Clause 1(2)(d) refers to the Terrorism (United Nations Measures) Order 2009. Under Amendment 2, it is to be called "purported". When it comes to later amendments, it has suddenly dropped its "purported" and has become-what should I say?-fully fledged.
There is a Scottish point that must be dealt with. We are in grave difficulty when we attempt to alter the test that was used in the orders that have been quashed, because it is hard for us now to take the view that the Government's protection is more than is necessary in the circumstances, with which they are much more familiar than any of us can be. I would not wish to take the risk of reducing the ambit of the orders without a full discussion, for which we have neither the time nor the opportunity. This is meant effectively to put in place the orders that have been quashed or are liable to be quashed. Therefore, to alter them would be beyond the present exercise, and beyond the scope of the time that we have allotted for the purpose, in order that the Bill might become law later this evening or early tomorrow morning.
My Lords, I respectfully agree with the comments made by the noble and learned Lord, Lord Mackay. The debate that we have just had is illuminating because it identifies how complex and different the views expressed on this issue are. It is clear that the amendments proposed by the noble Lord seek to bring about a fundamental change in the nature of the terrorist asset-freezing regime that we have. I make no comment for the moment on whether they are soundly based: I simply say that that is their purpose. We will not be able to deal with them adequately-I would almost say "at all"-this evening. Justice should be done to them, because we know from the Supreme Court decision that it wanted Parliament to have an opportunity for have a mature, reasoned and seasoned debate. That is what we have decided to do in relation to the management of the Bill.
We disagree with the noble Lord's premise. The amendments that he seeks to pursue concern two issues. The first advocates putting asset freezing in primary legislation rather than Orders in Council, in the belief that this is necessary to restore access to Convention rights. The second removes the asset-freezing decision from the Executive and gives it to the judiciary. That is a very significant change. Therefore, I agree with what was said by all other noble Lords: the point was made by the noble Baroness Lady Noakes, the noble Lord, Lord Elystan-Morgan, and, in effect, by my noble and learned friend Lord Boyd, who pointed to the fact that we have not dealt with Scotland. When you stand at the Dispatch Box, that is always something that you fail to do at your peril. Salient points were also made by the noble Lord, Lord Pannick. All the points recognised that the matter is complex, difficult and will take time to discuss. Notwithstanding the huge power of your Lordships' Committee, I do not think any of us believes that we will be able to do it tonight.
Perhaps I may say, with the consent of the Committee, that although I assure the noble Lord that I have many pages of explanation about why there are difficulties in what he proposes, I will save the Committee from that delicious torment and ask that we postpone it for another day.
My Lords, I refuse to accept any criticism on the drafting or principles because the Bill was published only a couple of days ago, which has not given anybody a chance to look at it in depth. I accept the criticisms about Scotland: I spend much of my time in Scotland, so I am very concerned about Scottish legislation. I am also concerned by the point made by the noble Lord, Lord Pannick, about whether the test should be reasonable belief or a stronger finding of fact by the court. Obviously these matters should be pursued when the full Bill is brought before us, and I shall do that on another day, as the noble and learned Baroness invited me to do. For the moment, I beg leave to withdraw the amendment.
Amendment 2 withdrawn.
Amendments 3 to 6 not moved.
Moved by Baroness Noakes
6A: Page 1, line 17, leave out "and further directions may be made"
I shall speak also to Amendment 6C. These amendments concern the further directions which the Government might make under the orders made under the United Nations Act. I fully accept that the Government may need to make directions that further persons are designated for the purposes of asset freezing between the time that this Bill receives Royal Assent and the time when it is replaced by substantive primary legislation. I also accept that the Government may need to renew or vary a direction. Therefore, I accept the thrust of Clause 1(3)(a).
However, my concern is that, as drafted, it appears that further directions can be made under all the orders listed in Clause 1(2). My amendment deletes the reference to "further directions" in subsection (3)(a). Amendment 6C inserts a new subsection into Clause 1 which specifically says that:
"Further directions may be made under", the 2009 order only but not under the 2001 and 2006 orders.
The 2009 order is far from perfect; we had a small taste of that on the previous group of amendments. The advantage of the 2009 order is that it is an improved version of the earlier orders: the 2001 and 2006 orders allow the Treasury to designate someone who may reasonably be suspected to be or may be a terrorist. That was removed following the Court of Appeal judgment and does not appear in the 2009 order. The 2009 order made other beneficial changes.
I am aware that the 2006 order repealed part of the 2001 order and that the 2009 order repealed part of the 2006 order. It may well be that my amendment is unnecessary because no further directions can be given under the earlier orders. However, I am not absolutely sure of the position, and that is why I have tabled the amendments. If directions can be given only under the 2009 order, can the Minister explain why subsection (3)(a) is drafted as it is? It refers to all the orders. I beg to move.
Perhaps I could ask a question which follows on from what the noble Baroness, Lady Noakes, has asked about the earlier orders. In what circumstances would the Government want to rely on the earlier orders?
I can clear this up. The noble Baroness, Lady Noakes, says that she seeks, by these amendments, to provide that any future directions can be made only under the terrorism order 2009. We agree that any future directions will have to come under that order and, therefore, we do not think it is necessary.
Article 26 of the 2009 order revokes the 2006 order, with savings only for current directions, and similar provisions in the 2006 order revoke the 2001 order. Therefore the 2009 order power is the only live direction-making power which the Treasury can legitimately use. I think that is the clarity which the noble Baroness wanted. The drafting makes that clear once you know that that is the only power. We think that matter has been covered. I thank the noble Baroness, first, for being so quick on the uptake and noticing that there might be a lacuna and, secondly, for helping us to try to close it. I can reassure her that there is nothing there to worry about.
Amendment 6B adds the words,
"after the date that this Act comes into force", at the end of Clause 1(3)(c). This deals with the degree of retrospection involved in this Bill, particularly in relation to criminal offences created by orders. That was raised during Second Reading by the noble Lord, Lord Wallace of Tankerness. I had already prepared this amendment for tabling and in view of the timing of this Committee stage I cannot check exactly what was said in Hansardso I apologise if I go over old ground, but I thought it wise to ensure that there is clarity on this point.
The effect of my amendment is to ensure that prohibitions and offences in the orders can apply only in relation to any acts after the Act comes into force. I know I do not need to recite to the House why retrospectivity in relation to criminal offences would be unacceptable.
It has been put to me by Justice, which has provided very helpful briefing, as other noble Lords have said, that the effect of the retrospective deeming contained in Clause 1(2), which subsection (3) expands on, is that the prohibitions referred to in paragraph (c) are similarly retrospective. I can also see that subsection (1) refers only to the period after the Act comes into force. If there is any scintilla of doubt or ambiguity about a matter as important as retrospectivity for criminal purposes, we must be quite clear in our resolve to remove that ambiguity. I hope that the Minister agrees with that. I beg to move.
I can reassure the noble Baroness that the amendment is unnecessary as Clause 1 already provides for this. The Bill does not provide for criminal liability for any acts or omissions before the Act comes into force. For the period between
I thank the noble and learned Baroness for that. I thought that was what I heard during Second Reading this afternoon but, as I explained, I thought it wise to have another go to be absolutely clear. I beg leave to withdraw the amendment.
Amendment 6B withdrawn.
Amendment 6C not moved.
Moved by Baroness Hamwee
6D: Leave out Clause 1 and insert the following new Clause-
"Amendments to the Anti-Terrorism, Crime and Security Act 2001
(1) Section 4 of the Anti-Terrorism, Crime and Security Act 2001 is amended as follows.
(2) In subsection (1), for "two conditions are" substitute "condition in subsection (2) is".
(3) In subsection (2), omit "first".
(4) Omit subsections (3) and (4)."
This amendment would replace the first clause of the Bill with a provision applying the relevant section of the Anti-terrorism, Crime and Security Act 2001 to the situation which this Bill addresses. We tabled this amendment because the Government said that the power in Section 4 of the 2001 Act to make freezing orders does not apply because the object of the order must be a foreign resident or a foreign country. It seemed to us that rather than the slightly crab-wise approach of this legislation, one could simply make it apply by leaving out the conditions relating to foreign residents and so on.
The 2001 Act has some important attributes. Some judicial oversight is already provided by the Act but it is perhaps limited in light of the discussions we have had already on the Bill. Under Section 63 of the Counter-Terrorism Act 2008, application to the High Court or to the Court of Session can be made in connection with any decision of the Treasury and in connection with its functions under the 2001 Act. In parenthesis, I ask the Minister-I have given notice of this and it is important-whether she can tell the Committee whether Section 63 of the Counter-Terrorism Act will apply to the Bill we are considering now when it is enacted. Section 63(1) refers to the UN terrorism orders, to Part 2 of the 2001 Act and to a schedule to the 2008 Act.
Under one paragraph of the schedule to the 2001 Act, regarding orders which can be applied, the Treasury must, if asked, give the reasons for including an individual in the order. Individuals also have a right to seek compensation. There are also provisions regarding licences-that is, bluntly, arrangements for funds to be made available to allow individuals to live. There are even provisions in the schedule that would, I think, benefit the Treasury. It includes in primary legislation some things that might be a matter of practice. We might be told that those provisions already apply, but this will make it certain. What is most important, in the light of the judgment that has led to our proceedings today, the 2001 Act has had the benefit of parliamentary process. I beg to move.
My Lords, I accept what the noble Baroness, Lady Hamwee, has said about the advantages of the 2001 Act compared with using the orders. On Second Reading, I asked why the 2001 Act was not used for terrorism purposes, if that is what it was put there for, and why it could not be used for this purpose. That said, I have some problems with the noble Baroness's amendment. Although it might set up a new regime going forward, I do not see how it copes with all those who are currently covered by the designations that have already been made under the existing orders. It seems to create a very severe problem. It may well be that, as a permanent solution to the problem, the noble Baroness's amendment has the core of a way forward, but in the context of dealing with the temporary problem caused by the Supreme Court's judgment, it seems to create more problems than it solves.
I respectfully agree with the noble Baroness's observations. Parliamentary approval was given to Section 4 of the 2001 Act, as I understand it, in relation primarily to foreign activities. I am concerned about the possible implications-I emphasise possible implications-of generally extending the scope of Section 4 so that it would apply to all domestic activities. That may have unfortunate implications and I would need some assurance that that was not the case before I could support this amendment.
My Lords, once again we have had an interesting debate that shows clearly why we need to do more work on these issues. We are very grateful to the noble Baroness, Lady Hamwee, for raising these issues. They foreshadow the sort of issues that we will have to think about and discuss in due course.
The Counter-Terrorism Act does apply to this Bill. The 2009 order is within the definition of the UN orders to which Section 63 of the Counter-Terrorism Act applies. I hope that clarifies that point. I certainly reassure the noble Baroness that all the comments made will be taken into consideration when we come to look at the final, full Bill. It gives us an indication of the sort of issues that are troubling Members of the House, and we will want to address those in due course. I hope the noble Baroness will feel that, having properly raised these issues, she is able to withdraw the amendment.
My Lords, this is not the first time in the proceedings on this Bill that that point has been made. We seem not to have had a proper answer from the Government. I take seriously the points that other noble Lords have made, but this amendment was tabled so that the Government could tell us something rather more substantive than, "It is because I say it is". I am not happy with such a response. We should be given more than that slightly Humpty Dumpty reply.
I am very happy to give the noble Baroness a short and pithy response if it assists her. However, I think that both the noble Baroness, Lady Noakes, and the noble Lord, Lord Pannick, have already identified some of the difficulties that the noble Baroness's proposal raises. To deal with those proposals properly would take some little time.
The provisions that the noble Baroness proposes would require the threat to have been from a Government or a person outside the United Kingdom. This would specifically get round the reason why the Act could not be used for domestic terrorism. However, even if it worked, it would mean designations on a reasonable belief basis, and we do not believe that that would be the right standard. Parliament would have to review the information relied on for a designation. It would require both Houses to approve designation within 28 days although many of our cases will have been charged or conducted on the basis of intelligence. In either instance, we could not disclose information of that sort.
There are very many issues. I say to the noble Baroness, with the greatest respect and understanding, that we are all trying to do the very best we can. However, the decision that was made by the Supreme Court was to enable Parliament to have sufficient time to discuss and debate these issues with a sense of decorum and propriety. I know that that is what the noble Baroness wants, and I know that that is what every person who has spoken in this debate wants. It is simply impossible for us to do justice to the issue which the noble Baroness wishes to raise in such a truncated process. I therefore invite her to think very carefully about the response that she has had both from the noble Lord, Lord Pannick, and the noble Baroness, Lady Noakes.
My Lords, the amendment does not seek to truncate the parliamentary process. We have already dealt with the sunset provision and my amendment would not alter that. It would merely put in place a different interim regime.
I did not sit through the proceedings on the 2001 legislation, but I find it difficult to believe that the Government allowed Parliament to ignore the kind of matters that the noble and learned Baroness has just raised. As regards freezing assets in respect of those who are subject to Section 4, surely that must have been considered and debated, and the Government must have been clear in their mind that all the corners had been covered.
I think that I shall test the opinion of the Committee.
My Lords, I have not given notice that I wish to speak on whether Clause 2 should stand part of the Bill, but I have one small query that I hope the noble and learned Baroness will be able to answer. In Clause 2(2), we deal with things,
"done or omitted by a person other than the Treasury that would be valid, lawful or effectual if", three orders had been effectively made. During the passage of the Bill in the other place, the Government tabled an amendment to Clause 1(2) to add additional orders relating to the Channel Islands, the Isle of Man and overseas territories. Why are the Government not extending the protection of Clause 2 to those three orders that they added yesterday in the other place? They allow temporary validity to be extended to them. Why are they handled separately?
I have to confess to the noble Baroness that having had intimidate dealings with the Bill only today, I am not able to give her an immediate answer, save to say-I am thinking off the top of my head at the moment-that I do not think it is necessary. Clause 2 and its provisions are necessary to ensure that there is no gap in the UK's asset freezing regime caused by the quashing of the terrorism orders. The clause validates actions taken by any person, except the Treasury-a very important exception-to maintain existing asset freezes during the period between the court quashing the terrorism order on
My belief is that since the orders are focused on what has happened here, it is unlikely that any freezes have been made in the Channel Islands or the other places, so there is no need for retrospective cover. Therefore, retrospective cover for the banks is not required. Having thought about where we are, that is my construction. If I am wrong on any of that-I do not believe that I am-can I write to the noble Baroness and clarify the position? I do not think I am wrong because, to the best of my recollection, I saw no papers in relation to the Channel Islands or the other places that have been mentioned. That is confirmed by the note I have received. If it is wrong on mature reflection and correction, I will let the noble Baroness know.
My Lords, I am very happy to do that. I am looking at the Box and I think my civil servants are confident that what I have told the Committee is right. I do not think that we are likely to get greater confirmation between now and Report. We have used our best endeavours to give the noble Baroness an accurate response.
The noble Baroness is right that a letter is inappropriate in these circumstances. I am sure that if the Government find that they should have referred to the other orders that the eagle-eyed noble Baroness spotted, they will have to do more than just write a letter about it. I am talking a little bit in case any further intelligence reaches the Attorney-General. It is entirely likely that in the circumstances we are debating, the Channel Islands, at any rate, would have featured in what has gone on over the past few years. If any correction needs to be made, as well as further order, at least a Statement to the House would be required .
My Lords, I thank the noble Baroness for her elegant filibustering. I shall read the note out: "There are no existing freezes in the Isle of Man, the Channel Islands or the overseas territories, so no retrospective cover is needed. You were right". So there we are: Her Majesty's Attorney-General was correct.
Clause 2 agreed.
Moved by Baroness Hamwee
8: After Clause 2, insert the following new Clause-
"Report on operation of Act
(1) Within 28 days of the date of the coming into force of this Act, the Treasury must lay before Parliament a report about the exercise prior to that date of the powers conferred or purported to be conferred on him by the Orders referred to in section 1(2).
(2) Within 28 days after the end of each reporting period, the Treasury must lay before Parliament a report about the exercise during that period of the powers conferred on them by this Act.
(3) The reporting periods are-
(a) the period beginning with the day on which this Act comes into force and ending with the last day of the third month during any part of which this Act has been in force;
(b) each succeeding period of three months.
(4) Each report shall include information regarding designations made, licences granted (whether general or to a category of persons or to a particular person), and proceedings taken for an offence".
I shall speak also to Amendment 9. The noble Baroness, Lady Noakes, has Amendment 11A in this group. My amendments are lifted directly from the draft full Bill, which is being published in the form of the Command Paper. They deal with reports to Parliament and independent review. If the Government think that these issues are appropriate for the fuller legislation and are measures that should be applied in future, why not now? The first of the amendments, Amendment eight, requires a report from the Treasury to Parliament on the exercise of the powers within 28 days and then on a three-monthly basis. The clause in the draft Bill refers to a report. That might bear a little expansion, and I have therefore added subsection (4), which gives some idea of what might be included in such a report. That is information regarding designations made, licences granted and proceedings taken for an offence. The noble Baroness's Amendment 11A requires a monthly report. My instinctive reaction is that that is a bit often and a bit of a heavy imposition, but I look forward to her arguments.
Amendment 9, on the independent review of the operation of the Act, says that the Treasury must appoint somebody to undertake reviews of the operation, and the periods for review would align with the periods in my Amendment 8. Other than that, it is lifted very directly from the draft Bill. We are in the difficult position that we all know about, and I heard the noble Baroness, Lady Noakes, say-I paraphrase-that we should not be too ambitious with this Bill in trying to import detail. Nevertheless, it seems that these are safeguards which the Government have seen fit to propose, and which we might well have been debating today, and there is no reason why they should not apply to the interim regime which we are now considering. I beg to move.
I take as my starting point that this Bill is far from perfect. It legitimises three orders with the barest minimum of parliamentary scrutiny. We have had no real opportunity to consider the substance of the orders, despite the valiant efforts of those on the Liberal Democrat Benches in seeking to get some of those issues debated. We are resigned to an imperfect emergency legislative solution to the problem of the Supreme Court's decision, and we have to await a proper Bill to replace it, but I do not believe that means that Parliament's involvement in the Bill should end.
In the draft legislation contained in the Command Paper issued last week, as the noble Baroness, Lady Hamwee, pointed out, Clause 24 sets out the requirement for a quarterly report. A quarterly report, or indeed any report, to Parliament cannot remedy deficiencies in the Act itself, but it is a useful way of reminding Parliament about legislation which can be used to interfere with the rights and liberties of individuals. It is also a useful way of reminding the Executive that they are accountable to Parliament.
My Amendment 11A mirrors Clause 24, somewhat more exactly than the amendment of the noble Baroness, Lady Hamwee, with the one exception that she has already pointed out; namely, that it calls for a monthly rather than a quarterly report. The reason for this is simple. This temporary provisions Bill can last only until the end of the year, and will, I hope, be gone sometime before that. In that circumstance, we believe that while the imposition of a monthly report might add a bit to the workload of the Treasury, that is a tiny matter when weighed against the civil liberties issues on the other side of the balance, because we are keeping in place a Bill which many of us regard as imperfect.
Amendment 8, in the name of the noble Baroness, Lady Hamwee, goes a little beyond the draft clause, as she explained, and I have no problem with the changes that the Liberal Democrats propose. I hope that I have explained why, even within the context of her amendment, a monthly frequency would be better. I hope that the Government can see that these are reasonable amendments, in the context of this Bill, which has an unsatisfactory legislative solution to a problem. The amendment would not upset the scheme of the emergency Bill, but it would go some way to putting Parliament back where it should be, which is reviewing the practical impact of legislation on the lives of individuals. I hope that the Government will seriously consider accepting either my amendment or that of the noble Baroness, Lady Hamwee, or be prepared to come back later this evening with a version of their own.
I find it difficult to support the other amendment in this group. I do not believe that this Bill, when it is an Act, will be in force long enough to make a review of the Act a worthwhile proposition, so I do not think that would be a sensible use of resources, going forward.
I support the amendments requiring regular reports to Parliament for the reasons given by the noble Baronesses, Lady Hamwee and Lady Noakes. These amendments will introduce vital safeguards. This Committee has recognised that this temporary Bill may be on the statute book for another 10 months, despite its imperfections. The Committee has been told that pre-legislative scrutiny may take three months. The temporary measures will inevitably have a very adverse effect on individuals, including those in respect of whom there may be no more than a reasonable suspicion that they may be associated with terrorism.
In those circumstances, it is vital, in order to ensure the protection of the interests of those individuals, and to ensure that this House can perform its vital function of holding the Executive to account, and being informed about what approach this House should take to the substantive legislation when it comes forward, that we see regular reports on the operation of this Bill. The Minister referred at Second Reading, and has referred earlier, to the need for a fair balance. I cannot see what can be weighed in the balance against such a requirement, other than the very minor consideration of administrative convenience.
My Lords, Amendment 8 requires quarterly reporting by the Treasury to Parliament on the exercise of the powers conferred on it by the Bill. Amendment 11A would require monthly reporting. We recognise the point of these Amendments. The Government understand and support the need to ensure accountability and transparency in the use of our powers. However, with the greatest respect, the amendments are not required. The Treasury already lays a written report before Parliament on the operation of the UK's asset-freezing regime. This report is made on a quarterly basis, which we believe is the right period for such a report, and it includes more than the noble Baroness's amendment requires. As well as information on designations made and licences granted, our-currently quarterly-report details the total assets frozen and the number of case reviews and delistings each quarter. We would be happy to add proceedings taken for an offence to the report, as suggested by the noble Baroness. The next report is due shortly. I am not sure that we could add that information for that report, but I certainly hope so for subsequent reports. I therefore ask that these amendments be withdrawn.
The purpose of Amendment 9 is to appoint an independent person to review the operation of the Bill three months after it comes into force and every three months thereafter. We have included a clause in the longer Terrorist Asset-Freezing Bill, which is available in draft on the Treasury website, to the effect that an independent person should be appointed to review the operation of the Bill nine months from the day it is passed and then annually. However, an independent review is not required for the operation of this temporary Bill. It is a temporary measure, which has a fixed sunset provision. In the course of giving pre-legislative scrutiny to the longer Bill, attention may well be given to the current orders and how they are implemented, but this does not require a formal independent review of this temporary Bill, a point that was made very eloquently in the contribution from the noble Baroness, Lady Noakes. I therefore ask that this amendment is also withdrawn.
My Lords, the Minister was very interesting on the subject of the Treasury's quarterly report. Will he explain why the Government's own draft legislation to replace this temporary Bill includes a specific requirement to table a report? If we were considering the draft Bill and I had tabled an amendment to Clause 24, would the Minister not say that the Treasury already does a quarterly report on asset-freezing? I am a bit mystified as to why the draft Bill has a specific requirement to table a report, which seems like a good idea, and why it should not be applied to the Bill that we are now considering.
Quarterly reporting is appropriate; it happens once every 90 days and keeps Parliament fully informed. We have already indicated that the total number of actions that are taken is relatively modest, and we believe that a quarterly report is appropriate for the temporary Bill, and for the longer Bill when it is considered by Parliament.
Perhaps I could put the question in a different way. Is there a current statutory requirement for the Treasury's quarterly report? If there is, how will it apply to the Bill that we are being asked to make law today?
It occurs to me that the previous orders may well contain a statutory obligation to report, although I have not seen it. If there is, the draft Bill would put it in anyway because it would be new, but my noble friend says that there is no such requirement. Perhaps the Minister knows the answer to that.
I suspect that the noble and learned Lord's analysis is correct. We put this into the new Bill because it is permanent legislation and it therefore makes sense to write it in, but you do not need a statutory requirement for a temporary Bill.
My Lords, it is desirable for there to be a report on the things that have been done under the previous orders and that are done under the authority of this Bill. Will the Minister clarify the requirement on the Treasury to make that report? If there was a clear requirement on the Government to make a report, there would be no problem. We are trying to ensure that there is a report. Is the Minister saying simply, "Trust me, I'm the Government", or is he saying, "I have to do it, therefore it's all right"?
I would never want the noble Baroness to believe that I relied solely on, "Trust me, I'm the Government", but a commitment that is given to Parliament is serious and is not given lightly, and I hope that Parliament will take comfort from the fact that the Attorney-General has been sitting alongside me on the Front Bench during this debate and has in no way pulled my jacket to tell me that it is not appropriate for me to make that commitment.
To avoid doubt, I should say that it is very important that these disclosures are made. I am a member of Liberty, and I have very strong beliefs in justice and in individual freedom. In presenting these proposals to Parliament, only after very careful consideration do I weigh the needs of national security against the risks of encroaching on individual liberty. One of the ways in which Parliament monitors that is through regular, comprehensive and detailed reporting. That remains an essential part of our commitment in support of this temporary legislation.
Will the Minister answer the question asked by the noble and learned Lord, Lord Mackay? Did the orders that have now become defunct because of the action of the Supreme Court contain the power to report? If this temporary Bill takes those orders into account, there is no fuss; after all, it has a sunset clause. I can understand the Minister saying that the permanent Bill should have it, but will he answer the noble and learned Lord's question, because I have not heard the answer?
I am sorry; I stand most corrected. We do not currently have a statutory requirement, but we made a commitment to Parliament in December 2006, we have reported to Parliament on a quarterly basis since, and we intend to continue to do so.
I must press the Minister on this matter, because I am puzzled by his position. Many statutes impose obligations on the Secretary of State to report to Parliament, particularly in the context of terrorism, and they do so because it is thought important to put such a duty into the Bill, given the importance of the subject matter. A Minister could always say, "That's unnecessary because I am giving a commitment to Parliament that we will do it anyway", but does the Minister not accept that, in the context of this very sensitive Bill and given the circumstances in which it comes before the House, it is particularly important that such an obligation is put into the Bill?
I hope noble Lords will take great comfort from the fact that we have been reporting to Parliament since December 2006, that the reporting has been as frequent as we indicated it would be at that time, and that we provide more detail than the noble Baroness has suggested in her amendment. I have made it very clear that, for the time that this temporary legislation is in place, we intend not only to continue to report quarterly but to augment the reports by providing an additional line of information, as the noble Baroness proposes. I hope Parliament will draw comfort from my very clear and unqualified statement as a Minister in support of our commitment to report properly and fully to Parliament for such time as this temporary legislation remains in effect.
Before the noble Baroness, Lady Hamwee, decides what to do with her amendment, perhaps I may say that we completely understand that the Minister wishes to assure us that he will report. However, it would cost the Government very little to stand behind the good faith that they say they have used in relation to using the order-making power in the past and their wish for us to help them to deal with the problem that has been created by the Supreme Court. It would not cost the Government much but it would give some people comfort to see them taking seriously the representations that have been made. This is a peculiar Bill and, in many respects, it is not satisfactory. We would like a special reporting requirement attached to it. It would last for only this year because the Bill will go at the end of 2010. We think that it would be an act of good faith on the part of the Government if the Minister took this proposal away and brought it back later this evening. Thus, neither of us would need to press the point now.
My Lords, this has taken a turn which I did not quite expect. As regards Amendment 9, I take the point that with a sunset clause it might be a bit heavy-handed to seek an independent review. It could be useful but perhaps it is a bit much in the circumstances. However, with regard to reporting, about which far better arguments have been made than those that I advanced in moving the amendment, we have heard assurances about accountability and transparency, and the arrangements which the Government have in place. I do not for a moment doubt the Minister, who is a good chap.
I hope that the "hear, hear" will be recorded in Hansard. This proposal seems a very proper, sensible and small thing to require. We have not heard from the Minister that he will come back with a clause to cover reporting. I gave people some exercise a few minutes ago and felt that I had justified the Government in keeping their troops here. We should now put the Minister out of his agony and I will seek the opinion of the House.
Amendment 9 not moved.
Moved by Baroness Hamwee
10: After Clause 2, insert the following new Clause-
"Reasonable domestic expenses
(1) The Terrorism (United Nations Measures) Order 2009 is amended as follows.
(2) In article 17(3) at end insert "subject to article 17(3A)"
(3) After article 17(3) insert a new paragraph-
"(3A) The Treasury shall by licence disapply such prohibitions as are necessary to ensure that the income of a designated person shall not by any action taken under this Order fall below what is necessary for meeting the reasonable domestic needs of the designated person and his family"."
My Lords, I shall speak also to Amendment 11. These are my last two amendments in Committee.
The first amendment provides that the licence to be given by the Treasury will ensure that the reasonable domestic needs of the designated person and his family can be met. Since I tabled the amendment, I have seen the Statement made by the Minister on
The wording of my amendment was taken direct from the Insolvency Act. It seemed to me that there were parallels between this situation and bankruptcy, where the bankrupt is allowed enough leeway and enough income to ensure that his reasonable domestic provisions can be met. The Minister's Statement talks of taking an approach so that designated persons have access to their income and other property in so far as it can be arranged,
"without giving rise to risk of terrorist finance".
It seemed to me that that was something of a circular argument. The Statement also says that the controls are those,
"necessary to protect against terrorist finance risks."-[Hansard, 5/2/10; col. WS36-37.]
However, as that is the basis for the designation and for the very heart of the order, I am not quite clear about its purpose within the licensing arrangements. One needs to start at the other end-not the fact of the designation, but protection for the families in particular. My main concern is that there is no legislative minimum and no possibility of challenge. That is why I have tabled this amendment.
I tabled the second amendment, on legal representation, because I was shocked to discover that financial contributions to legal proceedings, or indeed to representation for a designated person in proceedings, are in themselves offences. I understand that the role of the Justices in the recent Supreme Court case was to act as intervener, because that was all that they could do. It seems to me to be a basic provision that legal services should be allowed to be available. I beg to move Amendment 10.
My Lords, I assure the noble Baroness that the Government share the concerns that she has expressed, both in making sure that those who may be affected have the necessary wherewithal to meet their living expenses and, indeed, in relation to legal representation. We agree that it is essential that the impact of the asset-freezing regime on designated persons and their families is proportionate and to ensure that they have full access to legal representation and funds to meet their everyday needs. However, we believe that the noble Baroness's amendments are unnecessary, since the Government already operate a licensing regime precisely to ensure that these needs are met, taking into account the specific circumstances of each case. She will know that that may vary and that what may be an absolute necessity for one family may be an unnecessary matter for another. For the moment, the licensing regime is able to recalibrate those issues directly in relation to the individual needs of the family concerned. I welcome the opportunity to make that clear to the House and to put those comments on the record.
I hope the noble Baroness will be pleased to know that the Treasury already takes measures to ensure that all reasonable expenses can be met through the operation of the active licensing regime. For example, it is already our policy not to restrict a family's access to benefits due to them. Currently, all families are receiving their full entitlement for benefits; for this reason, we do not believe that the amendment achieves anything not already achieved by the operation of the licensing regime. However, I absolutely understand that the noble Baroness was framing this to get an assurance on how it works.
On the amendment that deals with legal representation, I hope that I have made it clear that I completely agree with the noble Baroness that it is essential that persons subject to an asset freeze have unrestricted access to legal services. However, it is already the practice of the Treasury to issue a licence for legal aid immediately when someone is designated; that ensures that legal representation is provided immediately. The amendment is therefore in that regard unnecessary, as I hope the noble Baroness will agree. The Government consider it inappropriate to exclude all legal services from the prohibitions, for example when legal expenses are met by release of frozen funds. It may be necessary to conduct some checks to ensure that the funds are applied for the stated purpose. For those reasons, I hope the noble Baroness will understand that although I am resisting her amendments, I affirm her concern about both issues.
My Lords, I am grateful for that. It is clear from the Supreme Court judgment that it has taken the Government some time to arrive at the licensing arrangements that they now apply. The Minister mentioned benefits; we know from the judgment that that was not always the case. The argument again is that the amendments are unnecessary because this is what we do. The assurance that I hoped for and that I think I heard was not just that this is what we do now but that this is what we will be doing. The Attorney-General is nodding.
My Lords, I am happy to affirm that. The licensing provisions and process that operated under the old scheme will continue until such time as we have an opportunity to consider if there will be a need for any change in any new Bill that might come forward. The scheme in being will continue.
Amendment 10 withdrawn.
Amendments 11 and 11A not moved.
Clause 3 agreed.
In the Title:
Amendment 12 not moved.
Bill reported without amendment.