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Terrorist Asset-Freezing (Temporary Provisions) Bill

My Lords, I start on a positive note by thanking the Government for keeping these Benches informed at the end of last week of what they were proposing—not, of course, that we on these Benches would have started from here—and for the command paper with the draft full Bill, which has provided some material for amendments, which we will discuss later. I should say to the noble Baroness, Lady Noakes, that some of them are relevant for now. Like the noble and learned Lord, Lord Mackay, I very much appreciated the Minister’s introduction, although I would have appreciated it even more if I had been able to take it away and read it before responding to it. However, here end the compliments. I put on record our thanks to JUSTICE and Liberty for their briefings. Second-hand compliments are often the most credible. One of my colleagues who questioned me about the Bill yesterday had read the briefing material as soon as it arrived, and the organisations should take that as a compliment. Nothing that is said from these Benches should be taken as our opposing proper measures to stop funding getting to terrorist groups or as our resisting our international obligations. However, we detect the Government’s air of panic to which other noble Lords have referred. We, too, asked: why such a rush? The judgment was made at the end of last month, and a supplementary judgment was made when the Supreme Court refused to grant a stay on 4 February, but the case did not start this year. I accept that the High Court order to quash the relevant orders was superseded by the Court of Appeal, but it was made in April 2008, so the Government were clearly on notice, as the noble Baroness put it, of the issue, and, as the noble Lord, Lord Pannick, said, they have failed to heed warnings for a considerable period. In the Supreme Court judgment, the noble and learned Lord, Lord Mance, expressed, "““concern about the development and continuation over the years of a patchwork””—" a word used by noble Lords this afternoon— "““of over-lapping anti-terrorism measures, some receiving Parliamentary scrutiny, others simply the result of executive action””." As noble Lords have said, we have had a great deal of terrorism legislation and criminal, serious organised crime legislation. Speaking as a lay person in this, I find it difficult to believe that terrorism is not serious organised crime. If the Acts of 2000 and 2001, which were used against the Icelandic banks, and 2008 did not cover the issue—the Government take that view but there is a dispute about this—why did they not make them? Even if the Government thought that Orders in Council were adequate, such important provisions, with such an impact, should have been brought into primary legislation. I follow the noble and learned Lord, although not as eloquently or no doubt as technically correct, in saying that the answer is not that an Order in Council is the usual way to go. Later today, there will be amendments from these Benches to seek to apply some existing primary legislation for the interim period. As has been said, only small sums are currently frozen. Although I accept that it is not necessarily expensive to carry out an act of terrorism, the issue of proportionality obviously arises. It is right to protect the banks which are caught in the middle. But if an individual who is subject to freezing took proceedings to get his money back, it would not be dealt with overnight. That would, in effect, allow a little more time for the Government to take this in a rather more measured way. In any event—I think that I read this in the same way as the noble Lord, Lord Pannick—the rights of individuals against the Treasury are preserved. Taking legislation a little more slowly would simply extend by a small amount the period in respect of which an individual might claim. Having made that point, I welcome the fact that those rights are preserved. We are unpersuaded of the need for emergency—or, as it is now perhaps a little euphemistically known, fast-track—legislation. But the House of Commons passed this Bill and it is clear that by tomorrow morning we will have a new Act of Parliament; so I do not want to spend much more time on this aspect. The Government have been hauled over the coals by the Supreme Court for bypassing Parliament and now the use of emergency legislation is sought to overturn that judgment. Much as we might object to this, our task is to make the legislation more palatable. I hope that our amendments will help to achieve that end. I said that it was right to protect the banks which have been caught in the middle. But that is not as important as protecting the citizens in the face of disproportionate interference with their human rights in ways not required by the UN resolutions. The terms ““remorseless””, ““devastating””, ““draconian”” and ““paralysing”” are used to describe the conditions imposed on those who are merely suspected—these are the Supreme Court’s adjectives and have been used by other noble Lords today. No evidence is required and there is no possibility of judicial challenge. It is important that permanent legislation is scrutinised thoroughly. We would support pre-legislative scrutiny perhaps by a Joint Committee of the two Houses or some other bespoke procedure. There is no reason why one should not design a procedure for this unusual circumstance. But it is far from clear that, even with a general election intervening, it is necessary to wait for as long as the end of this year. It certainly is clear that the asset-freezing regime to which an individual is made subject should itself be subject to supervision by the courts. Such orders should not just be made by the Executive. To quote the noble and learned Lord, Lord Mance, again, he said that the wording of UN resolution 1373, "““does not suggest that the Security Council had in mind ‘reasonable suspicion’ as a sufficient basis for an indefinite freeze””." The 2001 Act has the test of ““reasonable belief””. However, the Government come nowhere near evidence in the Bill, although I heard what the Minister had to say. Furthermore, promoting a Bill with no judicial oversight when a person is designated and no appeal—in other words, no judicial oversight at the beginning and no appeal at the end—and no appeal in respect of the licence terms that might apply is something that we find offensive; that would not be the wrong word. The Minister referred to judicial review and said, I think, that it was not a light touch. I believe that it is the wrong touch for this situation. It is about process and as described it accepts the premise on which the original order was made. That of course is one of the matters about which we complain. It is of great importance that the orders are themselves proportionate, but their impact has been described as ““very burdensome”” on all members of the designated person’s family. The impact on normal family life is remorseless and can be devastating. Noble Lords have heard of some of the restrictions. The wife of one respondent could not even receive welfare benefits until the regime was relaxed. It was what amounted to an invasion of privacy of a wife who was not a listed person. Solicitors have reported to the Supreme Court the break-up of the marriages of some of the individuals concerned. Although the Minister covered some of this in his opening speech, I want to ask particularly about what is routinely licensed. What is the approach and how are the needs of the whole family assessed? Indeed, how are their representations heard? Incorporating some sort of minimal level would be right, and I would say too that it goes against every principle that the actions of providing money to fund a challenge to an order or legally to represent a designated person should be an offence is itself offensive. The noble Lord mentioned legal aid. I am a little perplexed because it is difficult to imagine that someone subject to one of these orders would have the funds not to require legal aid. As we have seen in the draft longer Bill, the Government consider that periodic reports from the Treasury and an independent review of the process would be proper, so why not import those here? This is an emergency largely of the Government’s own making. The Minister referred to human rights legislation and has made a statement under the Human Rights Act that the Bill complies with the Act. Can he confirm that it complies only because the Human Rights Act and the European Convention on Human Rights do not apply? The UN charter trumps them both. As I understand it, the Supreme Court thought that as the Al-Jedda case is still continuing, that precluded it from considering the human rights position. The Minister quoted the noble and learned Lord, Lord Mance, who said that he was not taking a final view. It is with the greatest reluctance that we see before us legislation that amounts to control orders by another name. Liberal Democrats in the Commons made it clear what they thought by voting against Clause 1— the guts of the Bill. We will do our best later today to ensure that the legislation that emerges is appropriate and not excessive. I can certainly assure the noble Lord, Lord Pannick, that no magic wand will be waved from these Benches.