I rise to speak about a couple of amendments that the Joint Committee on Human Rights believe that this Committee should consider. I introduce the proposals in, I hope, a constructive, probing manner.
On amendment 3, hon. Members will be aware that when the JCHR considered the matter, it asked the Government whether they felt that the principles that were enunciated by the House of Lords in the case of AF would apply to asset freeze proceedings, so that the designated person would be given sufficient information about the allegations made against him, to enable him to give effective instructions to the person who represents his interests.
The Government response, which we have heard again today, made a clear distinction between asset freezes and control orders. It set out their view that asset freezes were of a different nature from control orders, in terms of their impact on human rights. The JCHR pointed out that the Supreme Court, in the case of Ahmed, found asset freezes to be at least as restrictive of an individual’s liberty as control orders. I find that a little strange, in terms of the impact that control orders and asset freezes have, considering the restrictions that apply under control orders, which seem to be more draconian than asset freezes. However, that is what the Supreme Court found in that case.
The Joint Committee goes on to state the view that the principle in the AF case will be held to apply to asset-freeze proceedings. I would like the Minister to let the Committee know whether any assessment has been made, or whether it is possible to make one, of the risk of litigation on the issue if there are similarities, as the Joint Committee on Human Rights believes. If the Government were minded to adopt this amendment, it would ensure that the relevant provision of the Counter-Terrorism Act 2008 would be amended, so as to require rules of court to secure that the court’s otherwise absolute duty of non-disclosure in asset-freeze proceedings, is expressly qualified by the duty to ensure sufficient disclosure to protect the rights to a fair hearing. The purpose of this probing amendment is to clarify the Government’s position. I will listen carefully to the Minister’s response.
Linked with amendment 3, is amendment 4, which contains a simple insertion to “leave out rule 79.2”. According to the Joint Committee on Human Rights that would reinstate the supremacy of the right to a fair hearing over the duty not to disclose information in the public interest. The amendment would remove the provision in the civil procedure rules, which explicitly subordinates the overriding objective of the system of civil justice to the state’s interest in ensuring that information is not disclosed contrary to the public interest. Again, I will listen carefully to what the Minister has to say on those two points. Clearly, the amendments are ones that the Joint Committee on Human Rights felt were substantial, and I hope that the Minister will be able to respond in a detailed and positive vein to its concerns.
I am grateful to my hon. Friend for raising some important issues with amendments 3 and 4. Amendment 3 seeks to create a new subsection within section 67 of the Counter-Terrorism Act 2008, which provides for the content of court rules about disclosure in financial restrictions proceedings, and which will apply to court rules made in relation to challenges to decisions under this Bill. The amendment would place a requirement for the court rules, which are to be made initially by the Lord Chancellor for England and Wales and Northern Ireland, to ensure that the Treasury provides sufficient open disclosure to enable the designated persons to give effective instructions to the special advocate. That form of words is based on the European Court of Human Rights judgment in A, which was applied by the House of Lords in AF & Others to the stringent control orders for them. I am going to come back to the point that my hon. Friend made about the distinction between the application of AF and Others to asset freezing in comparison with control orders.
The effect of the amendment is therefore to apply AF (No. 3) to challenges to final designations. My noble Friend, Lord Wallace of Tankerness, the Advocate General for Scotland, explained in the other place, when almost identical amendments to this Bill were debated and withdrawn, that the Government do not support this amendment. Of course, designated persons must have the full protections afforded them under article 6 of the European convention on human rights.
Section 67(6) of the Counter-Terrorism Act 2008 is absolutely clear that nothing in that section, or in the rules of court made under it, requires the court to act in a way that is inconsistent with article 6 of the European convention on human rights. That includes provisions relating to the Treasury’s disclosure of information only to the court and a special advocate.
The Government and the legislation are absolutely clear that article 6 rights apply in full to asset freezing. The Government do not accept that the principles of AF and Others automatically apply to asset freezing. The application of this judgment to asset freezing has not yet been determined by the courts. The courts have determined that AF and Others principles apply to the stringent control orders before them in that case, and also to financial restrictions proceedings under the Counter-Terrorism Act 2008. But the courts have not determined that AF and Others principles apply to asset-freezing cases. It would be wrong to say that legally there is no room for doubt on that. It goes back to the point made by my hon. Friend about the Supreme Court’s criticisms of asset freezing. Of course, what the Court was considering was the 2006 order, not the 2009 order, which included a number of elements to improve safeguards and proportionality.
The Court was also considering the asset-freezing regime as it operated in 2007, since when a significant number of changes have been made to improve the proportionality and fairness of the regime under the previous Government and again under the Bill. The Supreme Court acknowledged that changes to the 2009 order had
“ameliorated to some degree the onerous effects of the regime on spouses and other third parties who interact with the designated person” although
“the impact on the designated person is just as rigorous as it was under the 2006 Order.”
The Bill takes as its starting point the 2009 order and makes further amendments to increase the proportionality of the regime, making it clear, for example, that state benefits paid to spouses are no longer caught by the prohibitions, including benefits paid to spouses even when they relate to the designated person. It also introduces additional safeguards—for example, an increase in the legal test, a merits-based appeal for designation decisions and the introduction of an independent reviewer. We do not believe that the criticisms made in respect of the 2006 order apply either to the 2009 order or to the Bill. In the Government’s view, as I have said before, the AF (No.3) principles do not apply to asset freezing, because asset freezes are not as significant in their human rights impact as control orders can be. Nor are they as wide-ranging in their financial and economic impacts as decisions to impose financial restrictions under the Counter-Terrorism Act 2008.
However, this is something that it is open to the courts to determine if the Government’s position were to be challenged. Should the courts decide that AF and Others principles need to apply to asset-freezing cases, any court rules that cut across that will be read down to ensure compatibility with the ruling. It would be unnecessary to amend the legislation. In any event, it would be wrong to pre-judge such a determination by the courts and require now the disclosure of sensitive information that could damage national security or the detection or prevention of crime. Doing so would clearly not be in the national interest. Indeed, it would also be wrong to adopt a piecemeal approach to this important issue. The issue of special advocates and the use of intelligence material is clearly one that cuts across a number of areas. If we try to address these important issues in an ad hoc way in individual pieces of legislation, we risk ending up with different requirements in different pieces of legislation.
My right hon. Friend the Prime Minister announced in July that the Government will review the whole matter of the use of sensitive material in judicial proceedings and will issue a Green Paper next year. We expect it to be published in the summer. This will allow time for judgment to be handed down in the lead case in relation to whether the judgment in AF and Others applies more widely than to stringent control orders. The tribunal case of Tariq will be heard by the Supreme Court in January and we expect a judgment in the spring. Next year’s Green Paper will ensure that such a coherent and consistent approach is taken to the use of sensitive material in judicial proceedings. It would be wrong to pre-empt it, and I hope that my hon. Friend will welcome and support this approach and withdraw his amendment.
I have heard the Minister’s confirmation that the criticism in relation to the Supreme Court’s finding was related to 2006, and therefore one hopes that the current proposal will not be subject to the same criticism. I also heard what the Minister said about not approaching this in an ad hoc way, and I agree entirely. Clearly, there is a range of counter-terrorism legislation, including terrorist asset-freezing legislation, as contained in this Bill. Indeed, components of terrorist asset-freezing are in other Bills. I agree with the Minister that we need to deal with this holistically to ensure that as far as possible we have an identical approach across the range of counter-terrorism legislation being adopted. With those comments, I beg to ask leave to withdraw my amendment.