Clause 3

Terrorist Asset-Freezing Etc. Bill [Lords] – in a Public Bill Committee at 10:45 am on 23rd November 2010.

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Photo of Tom Brake Tom Brake Liberal Democrat, Carshalton and Wallington 10:45 am, 23rd November 2010

I beg to move amendment 2, in clause 3, page 2, line 27, at end insert—

I rise again to debate an amendment that the Joint Committee on Human Rights is keen should be adopted by the Government. Again, it is a probing amendment, to which I hope the Minister will respond. It is on the question of whether the Treasury should be including in the written notices of designation under clause 3(1)(a) as much information about the reasons for designation as it is possible to give

“consistent with the public interest in non-disclosure”.

I underline that point.

In response to the Joint Committee, the Government said that it was not necessary to introduce an amendment of this nature

“because the basic administrative law principle of giving reasons for decisions of this sort applies, regardless of whether a duty is specified in the legislation or not.”

However, the Committee, with some justification in relation to the control order regime, pointed out that, when evidence is based on material that cannot be put into the public domain, it is indeed very difficult to get reasons out into the open. I totally accept that there could be a large number of reasons that need to be kept closed.

However, there may also be occasions when the reasons could be put into the public domain, but in relation to control orders, that does not happen regularly. Therefore, the proposed amendment from the Joint Committee on Human Rights would ensure that, fully consistent with the public interest in non-disclosure, reasons were made public when possible. I will listen carefully to what the Minister has to say. I hope that he will be able to address the concerns raised by the Joint Committee and give me and it some satisfaction that the “basic administrative law principle” will ensure that reasons for decisions are made available when possible.

Photo of David Hanson David Hanson Shadow Minister (Treasury)

I shall not detain the Committee long, either. We generally support the clause. Will the Minister inform us about the ongoing review that the Government are undertaking in relation to control orders? It was mentioned by the Joint Committee on Human Rights as one of the reasons to support the amendment tabled by the hon. Member for Carshalton and Wallington. The Minister will know that we have strong views on control orders, and indeed the Government’s review. I had oversight of control orders as a Minister in the previous Government, and I never once supported one that did not have information supplied to support it. If there is to be a review of control orders and a change in the regime, the Minister needs to inform the Committee now so that we can take into account the amendment and reflect on it.

On Second Reading, the Minister said that the Bill is a stand-alone Bill, and that the review by the noble Lord Macdonald will not impact on the wider terrorism review. But the hon. Gentleman has raised the issue of control orders in relation to this particular aspect. If the Minister argues against the amendment, he needs to give a view on current Government thinking, because there has been debate over the weekend about the validity of control orders, and there is potentially some tension between both sides of the coalition on that issue. It is important that we hear from the Government whether the principles, which might be changed—they are at least being considered by the Government under the wider review of terrorism legislation—would have an impact on clause 3. I support the clause as drafted, and I would recommend that my hon. and right hon. Friends do not support the amendment. It is important that the Minister gives a wider view than the amendments, given the points that the hon. Member for Carshalton and Wallington has raised.

Photo of Mark Hoban Mark Hoban The Financial Secretary to the Treasury

Let me make some broader points about the amendment and return to the comparison between this and control orders, and address the point that the right hon. Member for Delyn has made. As the hon. Member for Carshalton and Wallington said, the amendment reflects a suggestion made by the Joint Committee on Human Rights in its report on 12 November. I will give some background on that.

On 13 October, the Chair of the Joint Committee wrote to Lord Sassoon, asking whether the Government would write on to the face of the Bill an express requirement on the Treasury to provide reasons for a designation, subject to the public interest requirements for non-disclosure. I understand that that proposal was born from a concern to ensure that individuals were sufficiently informed of the reasons for their designation at the point where their assets were frozen, in order for them to amount an effective challenge. The Government declined to include such an obligation on the grounds that the JCHR’s proposal was intended only to ensure that the Treasury complies with the basic administrative principle of giving reasons for decisions of this sort and that writing such an obligation on to the face of the Bill was unnecessary, because administrative law principles apply, regardless of whether that duty is specified in legislation.

The JCHR considered my noble Friend’s response, but maintained in its report on 12 November that an obligation should be written into the Bill. The reason was that:

“A mandatory statement of reasons in the written notice of designation would help to ensure that the new right of appeal is an effective remedy.”

We believe that that conflates two separate issues. Disclosure as part of court process, in a challenge to a designation, is a separate issue to disclosure at the time of designation. We do not think that there is a direct linkage between the provision of reasons for a designation at the time that it is imposed, and the effectiveness of a subsequent appeal against that designation. That is because, where a person appeals against a designation, the Government will, in any event, be required to make such disclosure as is necessary in the view of the court to meet the requirement for a fair trial under article 6 of the European convention on human rights. That may include a disclosure which is damaging to national security, but which is required under article 6. Including an express provision to require the disclosure of reasons at the time of designation in the Bill will not alter that obligation or ensure that the right of appeal is any more effective as a remedy.

The Government believe that it is right that reasons should be provided for imposing an asset freeze on someone, subject to public interest requirements. That is consistent with good administrative law principles, and as the Exchequer Secretary explained on Second Reading, it is already the Government’s policy to do so. There will, of course, be situations where the Government cannot divulge the full details of the case for a person’s designation. For example, where people have been arrested or charged with terrorism offences, disclosing information could have a detrimental impact on prosecuting such people. Where sensitive intelligence has been relied on for a decision, it may not be possible to disclose the reasons without damaging national security—for example, by compromising our intelligence sources or methods. None the less, subject to those considerations, the Treasury will continue to meet the requirements of administrative law and provide reasons for a person’s designation to the extent that it is consistent with the public interest.

Let me deal with the point from my hon. Friend the Member for Carshalton and Wallington, which revolves around the distinction between control orders and asset freezing. He referred to the JCHR’s final report, where one of the arguments for maintaining that the obligation should be written on to the face of the Bill was that the reasons for imposing a designation were not forthcoming, in practice, under the control order regime. Our view is that there are fundamental differences between asset freezes and control orders, including their respective impacts on human rights. The first difference is that there is a standing United Nations obligation to freeze terrorist assets and an agreed international framework for implementing it. That is not the case for control orders. Secondly, in practice, control orders are used against individuals in the UK who cannot be prosecuted or deported. The majority of asset freezes that have been imposed on UK persons have involved individuals who have been charged with, or convicted of, a terrorist offence. Asset freezing is also used against terrorist individuals and organisations based overseas.

Photo of Mike Gapes Mike Gapes Labour, Ilford South 11:00 am, 23rd November 2010

Throughout, when the Bill refers to persons, I take that to mean persons in the UK. However, as Minister is aware, we have several overseas territories  and a number of Crown dependencies. Will he clarify how the Bill relates to the Turks and Caicos Islands, Bermuda, the Cayman Islands, Jersey, Guernsey and other parts of the world that are under our jurisdiction, but not in the UK?

Photo of Mark Hoban Mark Hoban The Financial Secretary to the Treasury

The hon. Gentleman makes an important point. I wish to highlight the fact that, in respect of assets frozen under the regime or assets based in the UK, individuals may or may not be based in the UK. We are trying to freeze the assets that are located here in the UK, which is the basis of the Bill.

Photo of Mike Gapes Mike Gapes Labour, Ilford South

The US Government sent several people from Guantanamo Bay to Bermuda without the knowledge of the British Government. There are therefore people who could be terrorists or alleged terrorists and, as we know, some strange financial dealings have gone on in certain British overseas territories. In fact, the UN special committee has examined that, as has the G20. I am interested in not only people based in the UK who may have assets somewhere else, but individuals in those overseas territories.

Photo of Mark Hoban Mark Hoban The Financial Secretary to the Treasury

The hon. Gentleman will recognise that the Bill has been drafted because we have an international obligation under UN Security Council resolution 1373 to implement terrorist asset-freezing measures. That has been agreed at an international level and will clearly apply in those territories.

I was dealing with the distinction between asset freezing and control orders, and the fact that control orders can have a more significant impact on human rights than asset freezes as they can impose restrictions on movement, association and communication.

Photo of Malcolm Wicks Malcolm Wicks Labour, Croydon North

The issue raised by my hon. Friend the Member for Ilford South is one that I wanted to raise, albeit under clause 54 where I think it belongs. Will the Minister and his team take my comments as giving them notice that, rather than just nod through clause 54 in the usual way that we could do, the hon. Gentleman might talk at slightly greater length about the Channel Islands, the Isle of Man and other territories. That is an important matter as those countries would not be a bad place for terrorists to hide their assets if the law enabled them to do so.

Photo of Mark Hoban Mark Hoban The Financial Secretary to the Treasury

No, indeed, and the right hon. Gentleman is right to draw our attention to clause 54, which extends the powers to the Channel Islands, the Isle of Man and British overseas territories, so a regime is in place that affects assets not only here in the UK, but in Crown territories and overseas dependencies.

Photo of Malcolm Wicks Malcolm Wicks Labour, Croydon North

I suppose that we would be interested in what talks the Government have had or plan to have with representatives of the Channel Islands and other territories. In other words, the clause is not just a technical measure. We would want some evidence when we reach the clause that the Government are fully aware of the risks.

Photo of Roger Gale Roger Gale Parliamentary Assembly of the Council of Europe (Substitute Member)

Order. We are either going to discuss the matter now—I do not mind if we do—or we shall discuss it when we come to clause 54. We shall certainly not do both.

Photo of Mark Hoban Mark Hoban The Financial Secretary to the Treasury

Thank you, Mr Gale. I am just trying to wrap the matter up now rather than in a clause stand part debate. I hope that you are content with that. You did say that that was one of the options.

We expect all overseas territories and places such as the Crown dependencies to adhere to the highest international standards when it comes to financial transactions, whether money laundering, disclosure and so on. We sent out that very clear signal in our discussions with those territories and they appreciate that that is exactly what we want them to do. International mechanisms are in place to ensure that they do so.

Photo of Roger Gale Roger Gale Parliamentary Assembly of the Council of Europe (Substitute Member)

I just want to make it absolutely clear that members of the Committee are satisfied because I shall tell Mr Sheridan that we have debated the issue and it will not come up again under clause 54. If hon. Members wish to raise anything further on the subject, will they please do so now?

Photo of Mike Gapes Mike Gapes Labour, Ilford South

I want the Minister to be clear. We are not just talking about assets that are held in other jurisdictions by United Kingdom citizens. We are also talking about individuals resident in, or citizens of, other jurisdictions, such as overseas territories, Jersey, Guernsey and other Crown dependencies, who will also be subject to the regulations.

Photo of Mark Hoban Mark Hoban The Financial Secretary to the Treasury

The hon. Gentleman is rather narrow in his ambition for the Bill. It freezes assets that belong to people who are either resident in the UK and those territories or resident outside the UK and those territories. It is a very comprehensive regime focused on assets that could be used to engage in terrorist acts, regardless of the residence of the individuals whose assets they are, but those assets must within the UK and those territories. I hope that I have clarified the point.

Photo of Malcolm Wicks Malcolm Wicks Labour, Croydon North

I was rather hoping that by this exchange we would have politely put the Minister on notice that some of us would like him to give us a fuller exposition when we debate clause 54, so that we can understand better what is meant by providing a power to make an order. I understand what that means, but will such orders be made? In other words, we should have a fuller debate about the matter in the right place, which is under clause 54.

Photo of Roger Gale Roger Gale Parliamentary Assembly of the Council of Europe (Substitute Member)

Order. I have made it absolutely plain that the matter can be debated once, but it cannot be debated twice. We are beginning to become a little bit pregnant, and the Committee cannot do that. Either we debate the matter under clause 54 or we debate the matter now, which the hon. Member for Ilford South is happy to do. I do not want to do it twice.

Photo of Mark Hoban Mark Hoban The Financial Secretary to the Treasury

I am rather caught. It is our intention to make sure that the orders are made. It is important that they are. I know that overseas territories want to make sure that they comply with UK law. They want to  comply with UN standards in the same way that they comply with other international standards. It should not be a matter of debate whether there is any choice, either in the UK making the orders or the Crown territories actually complying with them and wishing to comply with them. A good regime will be in place to tackle assets held in offshore territories. It is important that hon. Members are reassured about that, but such a measure will also demonstrate that the regime that we want to introduce is broadly based and not narrowly focused purely on the UK.

Photo of Roger Gale Roger Gale Parliamentary Assembly of the Council of Europe (Substitute Member)

To put this to bed, I have no power to tell him, but I invite the Minister to write to the hon. Member for Ilford South and the right hon. Member for Croydon North if there are further queries on the subject because we have covered the subject, and I do not want to deal with it again under clause 54. Let us now move back to the motion under discussion.

Photo of Mark Hoban Mark Hoban The Financial Secretary to the Treasury

Thank you very much, Mr Gale. Before we had a Cook’s tour of overseas territories, we were talking about the distinction between control orders and asset freezing, and the difference in nature that stemmed in part from the JCHR’s comments. It is also fair to say that we do not accept the JCHR’s view on the position of the control order proceedings. A control order always explains that the Government suspect that an individual is, or has been, involved in terrorist-related activity and that a control order is necessary to protect the public from the risk of terrorism. After serving a control order, the individual is always provided with the open case against him. The starting point for that has been that the open case must contain as much material as possible, subject only to legitimate public interest and concerns.

Photo of David Hanson David Hanson Shadow Minister (Treasury)

If the Government propose any changes to the control order regime, the key point for me is whether the Minister anticipates reflecting those changes in the clause or the Bill in the future? If he does not, I am content. If he does, he needs to explain that to the Committee now.

Photo of Mark Hoban Mark Hoban The Financial Secretary to the Treasury

All in good time. I want to respond to the concerns of my hon. Friend the Member for Carshalton and Wallington about what was expressed by the JCHR on the application of the process of relating control orders to asset freezing. The starting point for control orders is that the open case must contain as much information as possible, subject only to legitimate public interest and concerns. Reasons will not be given in the control order context if there is legitimate public interest in refraining from disclosing information that might jeopardise national security. The JCHR has acknowledged that in such a situation it is acceptable to withhold giving reasons. Special advocates can and do make submissions that further information should be disclosed to the individual.

Subject to public interest and article 6 considerations, court rules that underlie control order proceedings also require disclosure of all relevant material, which, effectively, goes beyond providing reasons to providing underlying material. I do not believe, therefore, that the JCHR’s concerns about control orders are correct. There is also a distinction between the impact of control orders and the impact of asset-freezing orders, which we should bear in mind.

As the right hon. Member for Delyn has said, the Macdonald review of control orders is taking place and I do not want to speculate on its possible conclusions, which will be announced in due course before the end of the year. It is worth reminding ourselves that there is a particular reason why the Bill needs to be on the statute book by the end of December—the previous legislation was struck down by the Supreme Court, and the previous Government entered into a commitment, which we supported, to introduce new legislation by the end of this year. It is important, therefore, to proceed on that basis, await any further comments on asset freezing from Lord Macdonald, and leave such discussion to a later point.

Photo of Tom Brake Tom Brake Liberal Democrat, Carshalton and Wallington

I thank the Minister for setting out in detail the differences between control orders and asset freezes. I am sure that he acknowledges that we need to be careful not to repeat, in this legislation, some of the problems that have arisen with control orders, which are the subject of the current review.

The Minister has said that reasons should be given if there is no public interest reason for non-disclosure. Once the Bill has been enacted, I am sure that he will want to keep a watching brief on the extent to which reasons are being given in relation to designations. On that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of David Hanson David Hanson Shadow Minister (Treasury)

I beg to move amendment 42, in clause 3, page 2, line 28, leave out ‘take steps to’.

Photo of Roger Gale Roger Gale Parliamentary Assembly of the Council of Europe (Substitute Member)

With this it will be convenient to discuss the following:

Amendment 44, in clause 3, page 2, line 32, leave out ‘the Treasury believe that’.

Amendment 45, in clause 3, page 2, line 40, leave out subsection (4).

Amendment 46, in clause 5, page 3, line 22, at end insert ‘(c) publicise the revocation.’.

Amendment 43, in clause 7, page 4, line 4, leave out ‘take steps to’.

Amendment 47, in clause 7, page 4, line 15, leave out sub-paragraph (iii).

Amendment 49, in clause 8, page 4, line 30, at end insert ‘(c) publicise the expiration.’.

Before I invite the right hon. Gentleman to discuss the amendment, I return to the remarks that I made at the beginning of the sitting. The amendment paper shows hon. Members that amendments 42, 44 and 45 relate to clause 3; amendment 46 relates to clause 5; amendments 43 and 47 relate to clause 7; and amendment 49 relates to clause 8. If Mr Hanson wanted to move amendment 46, he would indicate that to the Chair, and it would be moved formally when we reached clause 5, but not now. That is the process to which we endeavour to adhere.

Photo of David Hanson David Hanson Shadow Minister (Treasury)

I am grateful, Mr Gale, for your clarification. Our discussions on the amendments will range over several clauses. The amendments are designed to be generally supportive of the Government’s approach. I have tried to include in them certain points on which we seek clarification, and a couple of key points on which we aim to test the Government—in a supportive way, rather than a confrontational way.

Amendments 42 and 43 would delete the words “take steps to” in relation to the notification of final designation. Under clause 3(1)(b), the Treasury must

“take steps to publicise the designation.”

Deleting “take steps to” firms up the publicising. I have suggested the deletion for two reasons: first, the Minister might provide some clarification about what “take steps to” means; and, secondly, I am interested to know what he means by “publicise the designation.” Although the previous Government drafted the legislation in broad terms, there may be differences of interpretation with regard to what “publicise the designation” means.

Through the amendment, we seek clarity from the Minister as to what steps he intends to take to publicise the designation. If I am honest, the words “take steps to” water down the commitment to “publicise the designation.” I cannot see why the Minister does not simply say that he wants to publicise the designation and indicate how he would do that. That would result in much firmer wording in the Bill. I seek clarification on what “publicise the designation” means.

Amendment 44 would remove the words “the Treasury believe” in clause 3(3)(a). That subsection is about whether the Treasury can take action if the designated person is an individual under the age of 18. The current phraseology is:

“the Treasury believe that the designated person is an individual under the age of 18”.

By removing the words “the Treasury believe”, we are trying to firm up the provision and test the Minister on what it means. If the amendment were accepted, the condition would be that the designated individual was under 18. I accept that there could be a range of reasons why the Treasury would not know whether someone was over 18, but the clause currently has an open phraseology. “The Treasury believe” means that the Treasury believes, but not that the person is—or is not—over the age of 18.

What I am really looking at is what standard of proof the Minister will exercise with regard to what “the Treasury believe”. I would be interested to know whether, once the Bill is enacted, “the Treasury believe” will be sufficient, if a person tests that wording in court. “The Treasury believe”—unless the Minister outlines on what basis the Treasury believes it—might open a range of discussions in any future court case as to whether that was suitable for our legislation. I am trying to be helpful to the Minister, because what he says today could, if the words stand in the Bill, be used in a court case. If the amendment is not accepted, it would be helpful for interpretation downstream if the Minister gave an outline. It is important that we know what the Treasury believes when it determines whether a designated person is under 18, and how it assesses that fact. It is, if I can put it in his terms, a probing amendment for the Minister to respond to.

Amendment 45 would delete clause 3(4). Not that I disagree with 3(4); the amendment is simply a way for me to test the Minister on what it means. Clause 3(4) states:

“If one or more of those conditions is met, the Treasury must inform only such persons as they consider appropriate.”

To test that, I want the Minister to tell the Committee what the circumstances are, and whom he considers it appropriate to inform. I remind the Committee that the Bill states that where a final designation is made, the Treasury must

“give written notice of the designation to the designated person” and

“take steps to publicise the designation”— that is, unless the person is under 18 or the Treasury believes that the disclosure of the designation should be restricted in the interests of national security, for the prevention or detection of crime, or in the interests of justice. If one of those conditions is met, the Treasury must inform only such persons as it considers appropriate. Who, in broad terms, would the Treasury consider informing? Whom does it consider appropriate? Will the Minister give some clarity on that, simply so that we know the intention behind clause 3(4) when the Committee considers it?

Amendment 46 is on a more substantial issue than the three initial probing amendments. As I have said, under clause 3(1)(b), the Treasury must

“take steps to publicise the designation.”

Under the Bill, if an individual is found to be involved in terrorist activity—if they are involved in commissioning, preparing or instigating acts of terrorism, or in facilitating the commission, preparation or instigation of such acts, or are acting on behalf of somebody who is doing those things—that is, if the conditions of clause 2 are met, the individual is designated. Under clause 3, the Treasury must then take steps to publicise the designation. Under clause 5, which we will come to in substantial detail later, the Treasury must, if it revokes the final designation, give written notice to the designated person and

“take reasonable steps to bring the variation or revocation to the attention of the persons informed of the designation.”

What clause 5 does not do is mirror clause 3—that is, require steps to be taken to publicise the revocation. There is an inconsistency there.

Under clause 3, the Treasury tells the person that they are designated. It writes to let people who are interested in that designation know of it, such as banks and others, and it publicises the designation. It might well put it on the website; it might put out a press release; there might be a press notice on the Treasury list; and it might do other things that the Minister may explain in a moment. Under clause 5, when a final designation is revoked, the Treasury writes to the individual and interested parties, but it does not publicise it. Someone’s reputation could be fairly—or unfairly—well trashed under clause 3. When the revocation takes place, that information is not publicised more widely. That is an inconsistency that the Minister might want to consider, today or at a later stage. He might at least explain to the Committee why that inconsistency occurs. We could have a situation where people designated under a freezing order are unable to have their name cleared in a manner that reflects the way in which the information was put into the public domain under clause 3.

Amendment 49 effectively recycles those arguments under clause 8. I have used a slightly different wording, but the principle is there. What I am interested in hearing from the Minister is the principle; why can we  publicise the change made under clause 3, but not the changes made under clauses 5 or 8? I welcome the Minister’s views on those points, and will reflect on his comments before deciding whether to discuss the matter further.

Photo of Tom Brake Tom Brake Liberal Democrat, Carshalton and Wallington 11:15 am, 23rd November 2010

On amendments 42 and 46, I too will listen carefully to the Minister’s response. With regard to amendment 42, I assume that

“take steps to publicise the designation” means “publicise the designation”, so removing the words would be a simplification of the intention. As for the contrast between publicising the designation and its opposite, the revocation, there is a difference. The measures provide for general publicity about the designation, whereas the measures relating to revoking the designation seem very specific, in relation to the people being informed. That may be my misunderstanding of what is intended. I hope that the Minister will be able to clarify those two points.

Photo of Mark Hoban Mark Hoban The Financial Secretary to the Treasury

Under clauses 3 and 7, the Treasury is required to provide written notification to a person of a final or interim designation made in respect of them under clauses 2 and 6 respectively. Clauses 3(1) and 7(1) require the Treasury to take steps to publicise the final or interim designation. Except where one of a number of conditions applies, the obligation is to publicise the designation generally. Where one of the exceptions applies, the obligation is to tell such persons as the Treasury thinks appropriate. The exceptions relate to minors, or to where disclosure would be contrary to national security, the prevention and detection of serious crime or the interests of justice. Those exemptions are necessary where, for example, a general, rather than a targeted, enforcement of an asset freeze might be detrimental to an intelligence operation.

Amendments 42 and 43 would omit the words “take steps to” from clauses 3(1) and 7(1) and would, therefore, remove any element of discretion that the Treasury might have in identifying by which methods and to what extent a designation is publicised. The amendments are unnecessary. The Treasury is obliged to publicise a designation; how it does so is a matter of judgment. The discretion provided by the words “take steps to” does not qualify the obligation, but it makes it clear that the Treasury has the scope to decide on the best method of publishing a designation, whether that is by putting it on the Treasury website or by an alternative method. That would not be the case if the words were omitted.

The current process for publicising designations generally is for the Treasury to issue notices on its website. It also makes available on the website the names and other identifiers of designated persons, such as their date of birth and their general location, where known, in a consolidated list of those effectively subject to financial sanctions in the UK. The Treasury also provides a free service through which subscribers can receive e-mail notification whenever a notice is added to the website or the list of designated persons is updated. The existence of the website is widely publicised across the financial sector via the relevant trade bodies. Most banks and building societies and many other financial organisations subscribe and receive updates.

The automatic publication of designations on the website, unless one of the conditions in clauses 3(3) or 7(3) is met, is the most efficient and effective means  of achieving the appropriate level of awareness of, and compliance with, the asset freeze. However, the discretion provided for by the words “take steps to” is appropriate, as it enables the Treasury to decide on the most effective method and level of publication required to inform the financial sector and other parties of their asset-freezing obligations, thus limiting the risks of the prohibitions in the Bill being unwittingly breached and the risks of funds being diverted for terrorist purposes. On the back of that clarification about the methodology and the reasons why we need that discretion, I hope that the right hon. Member for Delyn will withdraw those amendments.

Amendments 44 and 45 relate to conditions in clauses 3(3) and 7(3) that set out the circumstances under which a designation would not be publicised generally. Amendment 44 would replace the condition that the Treasury “believe” that a designated person is under 18 with the requirement that it is an established fact that that person is under 18. That would bring into question the Treasury’s discretion to use the available evidence in assessing whether a designated person is under 18 when established facts are not available. The amendment might limit the Treasury’s ability to restrict the publication of the designation of a minor where the information available as to age is inconclusive, and where, although it may believe that the person is under 18, it cannot establish that as a fact.

If the right hon. Gentleman reflects on the nature of the information available to the Treasury when it makes the designations, he will accept that such information is sometimes incomplete. Fragments of information may suggest that people are under 18, but the Treasury might not have their birth certificates. The evidence available to determine whether they are under 18 is not always as clear as it could be. The Treasury would like to have the discretion to decide, on the basis of what evidence it has, whether they are under 18, so that it can exempt them under clauses 3(3) and 7(3).

As for Amendment 45, I draw the Committee’s attention to clause 3(1), which states that

“Where the Treasury make a final designation…they must…take steps to publicise the designation.”

That is qualified by subsection (4), which requires that

“If one or more of those conditions is met, the Treasury must inform only such persons as they consider appropriate.”

The amendment would remove that subsection and, therefore, the qualification on publication. We will resist the amendment because where one of the conditions in subsection (3) is satisfied, it is right that it is made clear that the designation will be publicised only to those whom the Treasury consider it appropriate to notify. That will ensure that the Treasury can, for example, balance the requirements of the wider interests of national security, which might be damaged by the wider publication of an asset freeze, against the particular requirement to ensure the effectiveness of the asset freeze, which can be realised by targeted notification.

Amendments 46 and 49 would include a requirement, in clauses 5 and 8 respectively, that where a final designation is revoked or an interim order expires, the Treasury must publicise the revocation and the expiration. The amendments are unnecessary because the activity that  hon. Members want to ensure the Treasury undertakes is already catered for in the existing wording. The Treasury is required, under clauses 5(2)(b) and 8(2)(b), to take reasonable steps to bring both the variation and the revocation of the final designation, or the expiry of an interim designation, to the attention of the person who is informed of the designation. That means that where a designation has been publicised generally, its variation, revocation or expiration will be publicised generally, too. The Treasury publicises generally by issuing notices on its website. Subscribers will receive an e-mail notification from the Treasury to inform them that such a notice has been published, in the same way as they are informed when a designation notice is published.

Photo of David Hanson David Hanson Shadow Minister (Treasury) 11:30 am, 23rd November 2010

I seek balance: whatever steps are taken under clause 3(1)(b) must be balanced under clause 5(2)(a) or (b). I seek a similar level of disclosure under both clauses, so that no one is disadvantaged by the fact that there is wide publicity under clause 3, but less publicity when the notice is revoked under clause 5. If the Minister can reassure me, I shall be content.

Photo of Mark Hoban Mark Hoban The Financial Secretary to the Treasury

I believe I can. Where a designation has been publicised generally, variation, revocation and expiration will be publicised generally, too. That will involve website publication, and the restricted access website is also available to financial institutions to enable them to access such information. There is symmetry in the publication of the original notice and in what happens when that expires, is revoked or is varied. I hope that provides the right hon. Gentleman with the reassurance that he needs.

Photo of Tom Brake Tom Brake Liberal Democrat, Carshalton and Wallington

Presumably, there is also a reciprocal arrangement in relation to the e-alerts to which the Minister refers, when banks and building societies receive notice about someone who is under an order. When such an order is revoked, they will, presumably, receive a similar notice through that e-system.

Photo of Mark Hoban Mark Hoban The Financial Secretary to the Treasury

Yes, indeed. Most financial institutions have access to a specific website on which that information will be published, so it works in both directions.

On amendment 47—

Photo of David Hanson David Hanson Shadow Minister (Treasury)

I did not speak to that one.

Photo of Mark Hoban Mark Hoban The Financial Secretary to the Treasury

I shall try to put the right hon. Gentleman out of his—I will not say misery, because he is not that sort of chap. I shall try to give him the reassurance that he might have been seeking, had he spoken to that amendment.

Photo of David Hanson David Hanson Shadow Minister (Treasury)

Perhaps I can speak to the amendment in an intervention, Mr Gale. We tabled that probing amendment only to ensure that we get some context about what the words “in the interests of justice” mean. I should be grateful if the Minister informed the Committee of his interpretation of that phrase, so that we have clarity in our consideration of subsequent provisions.

Photo of Mark Hoban Mark Hoban The Financial Secretary to the Treasury

What is remarkable is that the telepathic skills of Ministers and their officials would have enabled me to respond to that concern even if the right hon. Gentleman had not intervened. As he rightly points out, under clause 7(3) an interim designation can be made on a restricted circulation basis and should not be  published generally if the Treasury considers that restricted publication is in the interests of justice. In that case, where a designation might prejudice justice—for example, where an individual is going on trial—the Treasury will seek the advice of the Crown Prosecution Service to ensure that designation would not impact on the interests of justice. The CPS would contribute to any decision to publicise a designation generally, to publicise it on a restricted basis, or even not to designate at all.

The Treasury believes that the amendment, if made, would limit the asset-freezing options available to it in cases where publicising a designation might not be in the interests of justice and would make certain designations impossible to enforce and implement. I hope that I have addressed the right hon. Gentleman’s concerns.

Photo of David Hanson David Hanson Shadow Minister (Treasury)

All the amendments in the group were, in essence, probing. It is helpful that the Minister has put on record his interpretation of the proposed legislation. I want him to reflect—perhaps outside the Committee—on amendments 46 and 49, which deal with revocation. Will he consider whether the interpretation he set out in his response to the amendments is sufficiently tight to ensure that, in the interests of justice, sufficient emphasis is given to publicising the revocation of designation? We are talking about ministerial responsibilities—not only his, but those of future Ministers, five, six, seven, eight or 10 years down the line. Has sufficient clarity been given so that there is a balance between the publication and information given at designation and the publication and information given at revocation?

I want the Minister to reflect on that question. If he is content, however, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 3 ordered to stand part of the Bill.

Photo of Roger Gale Roger Gale Parliamentary Assembly of the Council of Europe (Substitute Member)

Hon. Members will notice that there is now a run of clauses to which amendments have not been tabled. In fact, amendments have not been tabled to a significant number of clauses. A clause stand part debate gives any Member the opportunity on a clause to which no amendment has been tabled—or, indeed, to which amendments have been tabled—to raise any issue that has not already been debated. It is my custom to read out the numbers of the clauses, and if any Member wishes to raise a particular issue on a particular clause, they should indicate that, please; otherwise, I shall deal with the clauses en bloc and move on to the next amendment.

Clauses 4 to 6 ordered to stand part of the Bill.