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Terrorist Asset-Freezing (Temporary Provisions) Bill

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 27 January that struck down the 2006 order. It was confirmed by the later decision of the Supreme Court that it had no discretion to suspend the order. It had the effect of declaring that the 2006 order had never possessed legal force and that it had been void from the start. It was therefore never an order in any legal sense. Your Lordships will recall this was a matter that was discussed at Second Reading this afternoon. It is only a ““purported”” order and the amendment corrects the description of the orders in the context of this Bill. It has the effect of protecting the clause from the argument—as, for example, in the Anisminic case—that a legal nullity cannot be used to give rise to further obligations. 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.