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Clause 57

Counter-Terrorism Bill – in a Public Bill Committee at 12:30 pm on 13th May 2008.

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General provisions about rules of court

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

I beg to move amendment No. 213, in clause 57, page 40, line 26, at end insert—

‘(c) the need to ensure that the manner in which the proceedings are conducted is fair to every party to the proceedings.’.

Photo of Edward O'Hara Edward O'Hara Labour, Knowsley South

With this it will be convenient to discuss the following amendments: No. 207, in clause 57, page 40, line 29, leave out paragraph (b).

No. 214, in clause 57, page 40, line 32, leave out subsection (4).

No. 208, in clause 57, page 40, line 33, leave out paragraph (a).

No. 216, in clause 58, page 41, line 23, after ‘interest’, insert

‘and that the withholding of the material would not cause injustice to a party to the proceeding,’.

No. 225, in clause 58, page 41, line 25, leave out ‘consider requiring’ and insert ‘require’.

No. 217, in clause 58, page 41, line 30, after ‘interest’, insert

‘and is sufficient to ensure that the conduct of the proceedings will be fair to all parties to those proceedings.’.

No. 226, in clause 58, page 41, line 30, at end insert—

‘(f) material which supports the case of a party to the proceedings may not be withheld from a party to the proceedings or from that party’s legal representative and material which adversely affects the Treasury’s case may not be with held from any party to the proceedings or their legal representative.’.

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

This is rather an important clause and rather an important set of amendments. We are dealing here with the powers given in the Bill for the making of rules relating to the asset-freezing procedures. Those procedures, which are set out in clause 56, are fairly far reaching.

My reading of clause 57 makes me extremely depressed. All the provisions are designed to benefit the Treasury, and none is designed to benefit the person whose assets may well be frozen. In the various amendments that I have tabled, I have tried to ensure that the maker of the rules is obliged to consider a number of criteria that are designed to benefit the individual, not the state.

For example, the lead amendment, No. 213, requires the maker of the rules to have regard to the need

“to ensure that that manner in which the proceedings are conducted is fair to every party to the proceedings.”

One would have thought that one would not have to say that, but the way in which the law is being construed and implemented means that one does.

Nothing in the Bill requires the maker of the rules to have any regard to the person whose property is about to be taken. The Minister might say that that is all inherent in the convention on human rights, and some parts may be, but I want us as parliamentarians to enact legislation in such a way that people cannot criticise us for not addressing such matters. It is quite plain that we should require the maker of the rules to have regard to fairness.

I am also concerned by subsection (4), with which amendment No. 214 deals. As the Committee will appreciate, subsection (4) enables the maker of the rules to make provision for proceedings to be heard in the absence of the person concerned or their legal representative. It also enables the rules to provide for the proceedings to take place without full particulars of the relevant reasons being given to the parties, and it enables the court to proceed on the basis of a summary of evidence rather than full evidence. That is extraordinarily one-sided, and I have tabled the amendments to try to ensure that the maker of the rules is obliged to consider issues of fairness.

Photo of Elfyn Llwyd Elfyn Llwyd Shadow Spokesperson (Innovation, Universities and Skills), Shadow PC Spokesperson (Home Affairs), Shadow Chief Whip (Commons), Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Environment, Food and Rural Affairs), Shadow Spokesperson (Foreign and Commonwealth Affairs), Shadow Spokesperson (Justice) 12:45 pm, 13th May 2008

The right hon. and learned Gentleman will recall that during our last sitting, we discussed a possible challenge by an innocent third party whose property had been confiscated. Subsection (4)(b), to which he referred, states that proceedings can be conducted

“in the absence of any person, including a party to the proceedings”.

Where does that leave the innocent third party if that property belongs to him?

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

That is a fair point which I have not yet addressed. Although the debate last week related to forfeiture, whereas this debate relates to freezing, it is perfectly true that the same issue could arise. I take the hon. Gentleman’s point entirely. I can conceive of circumstances in which the imaginary Mr. McNulty will not know that his property, which is in the hands of the person who is the subject of the freezing order, is likely to be frozen. I do not have an answer. The hon. Gentleman is right to identify and flag up the issue—it must be addressed.

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

I am glad about that, but it is a serious point and I am glad that the hon. Gentleman has raised it. It needs to be addressed, at least, that is my immediate feeling about it.

Amendments Nos. 216, 225 and 226 are about disclosure rather than the general provisions. I can understand the grouping because clause 58 deals with rules about disclosure. My concern is that there is no provision in the Bill that causes the maker of the rules to consider the impact on the person whose property might be frozen of withholding classes or pieces of information. The maker of the rules should have to consider those matters, so that a court is  not in a position to make orders that prohibit the disclosure of information where the prohibition on the disclosure would be unfair.

That is the same category of argument that I have been raising. Parliament has a duty to take account of the interests of those people—however unworthy they may be—and ensure that no unfairness is done on the face of the Bill. I hope that the Minister will give serious consideration to what further language should be used to ensure, as best one can, that the interests of the individual whose property may be the subject of the freezing order are properly safeguarded, both as to the hearing and the disclosure of the material.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I join my right hon. and learned Friend in having the gravest reservations about the wording of clause 57, in terms of setting down general provisions about rules of court. I also share his anxiety about disclosure, although on my reading, the rules on disclosure closely follow those on the existing system for control orders in providing protection for the use of intercept and other intelligence evidence. That raises anxieties, but they do not seem to justify the extraordinary nature of the rules in clause 57.

The Committee will see that I have tabled two amendments to clause 57. The first would remove subsection (3)(b), which says that rules of court may make provision—

“enabling or requiring the proceedings to be determined without a hearing”.

The second one would leave out subsection (4)(a), which allows the rules of court to make provision—

“enabling the proceedings to take place without full particulars of the reasons for the decisions to which the proceedings relate being given to a party to the proceedings (or to any legal representative of that party);”

Those provisions cause me considerable concern about how the proceedings can be fair. If the matter of amendment No. 208 can be construed as being in the context of intelligence evidence, enabling or requiring proceedings to be determined without a hearing is something that I find totally inexplicable. On the face of it, I cannot see how any rules of court which make such a provision could pass the first and most basic test of fairness that one may require. I would be particularly interested, therefore, in the Government’s justification of it.

What is needed now is a general debate in which I expect the Minister to set out in considerable detail how he expects this system to work in practice. I also going to require him to justify each and every one of the provisions which depart from the normal standards that one would expect to find in civil proceedings of this type.

I want to make it clear that I am not unsupportive of the need to have a special procedure. It has been recognised that we want to try to use intercept evidence, and that in itself is a novelty that is going to present considerable details to the Minister and to the Government. But the process has to be fair—all the more so because we are not dealing with controlling individuals, which might be argued to be an absolute necessity in the context of terrorism; we are arguing about property, and I am going to need a lot of persuasion that each and every one of these provisions is necessary. However, I would say to the Minister that I am open to persuasion.

Photo of Elfyn Llwyd Elfyn Llwyd Shadow Spokesperson (Innovation, Universities and Skills), Shadow PC Spokesperson (Home Affairs), Shadow Chief Whip (Commons), Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Environment, Food and Rural Affairs), Shadow Spokesperson (Foreign and Commonwealth Affairs), Shadow Spokesperson (Justice)

I rise briefly to support the arguments made in support of the amendments, and in particular to speak to amendment No. 213, which stands in the name of the right hon. and learned Member for Sleaford and North Hykeham. It is obviously a prerequisite that there should be fairness in the system. Otherwise, the whole system will break down, whether as the result of legal challenge or in another way.

We must read clause 57 alongside clause 56. The Treasury is to determine whether an application will be made or not. Under clause 57(3)(a), rules of court may make provision

“about the mode of proof and about evidence in the proceedings”.

That fills me with great concern. I hope the Minister will tell us more about that provision, whether it is about the standard of proof or its precise meaning. I do not quite understand the wording. Looking at subsection (3)(b), to echo what the hon. and learned Member for Beaconsfield has said, there is something Kafkaesque about making rules of court to enable no hearing to take place. In fact, it borders on the ridiculous that this could be an administrative decision, by the Treasury, to freeze these assets without notice to anyone, without inviting anybody’s opinion and without allowing for the possibility of an innocent third party who might or might not be the owner of the assets that are being frozen.

Subsection (4)(b) refers to,

“enabling the court to conduct proceedings in the absence of any person, including a party to the proceedings”

I stress that, like other hon. Members, I have no desire to prevent a proper system from being introduced. Clearly, that is an important tool in the armoury, as the Minister said earlier. However, we must ensure fair play; otherwise, this part of the Bill will soon unravel.

I am very concerned about the idea that proceedings will take place in the absence of a party and the legal representative of that party. Let us imagine that the party is a trustee of some fund or that moneys have been entrusted to him or her in an innocent way. It seems that those moneys could be taken away without any challenge from a third party. To be fair to the Government, in another clause, regarding confiscation, there is provision for a party legitimately claiming to be the owner of property to be heard. The Bill may contain a similar provision covering asset-freezing proceedings, but I cannot find it. In the circumstances that I have described, is there any way in which a person with a legitimate claim to the moneys could be heard in the process, or will that voice be shut out completely, just as, unfortunately, under subsection (4)(b) will be the person who is the subject of the proceedings? Those are important points and I am sure  that the Minister will have answers for every one of them. The position is not obvious from the Bill and we need answers.

Photo of David Heath David Heath Liberal Democrat, Somerton and Frome

I do not want to extend my observations into this afternoon’s sitting, so I shall be exceedingly brief. One does not have to be against the principle of this aspect of the Bill to raise pertinent questions about how it will withstand any challenge, which we are familiar with in the context of control orders and which we know lies further down the road. If the provision is not sufficient to meet the terms of any challenge under human rights or any other legislation, it will not do the job that the Government want it to do.

We need to be a little more circumspect than usual, not only because of the experience of the past few years and the difficulties thrown up by court proceedings in respect of control orders, but because we are talking about what is essentially an executive action on the part of the Treasury. I understand why the Treasury is involved. Of course it is: it is the Government Department in this country that deals with financial matters; it is Her Majesty’s Treasury. However, the Treasury is not the Ministry of Justice, or even the Home Office, so it is important that anything done by the Treasury in this respect is clearly seen as being in accordance with the principles of justice and fair play to the individual as well as to the state. That is why some of the concerns expressed have been put before the Committee and why the Minister must take exceptional care to ensure that the clause is in good order before the Bill proceeds to later stages.

Photo of Tony McNulty Tony McNulty Minister of State (Security, Counter-terrorism, Crime and Policing), Home Office

I have heard what all the speakers have said and I understand the import of their remarks. As the hon. and learned Member for Beaconsfield said, the provision is not new. It reflects as closely as we can the special advocate system that prevails in the Special Immigration Appeals Commission. For a lot of people, that system is not entirely satisfactory, and I have met special advocates to discuss at some length both SIAC and other matters. In the Proscribed Organisations Appeal Commission, we have the same system. It is not Kafkaesque. If we are considering how to, at least in part, afford people a degree of fairness from what starts as a simple Order in Council and we can go thus far and no further, given some of the material before the court, it is perfectly appropriate to put rules of court around those hearings, because they do not exist otherwise. As with SIAC and POAC, it is more than appropriate for cases to be dealt with in this fashion.

It being One o’clock, The Chairman adjourned the Committee without Question put, pursuant to the Standing Order.

Adjourned till this day at Four o’clock.