Terrorist Asset-Freezing (Temporary Provisions) Bill

Unfortunately, there has not been an opportunity for the Joint Committee on Human Rights—or anyone else, for that matter—to scrutinise the emergency legislation from a human rights point of view. That is ironic in view of the Supreme Court's reasons for quashing the order—that asset-freezing measures with a dramatic effect on individuals' fundamental rights had been made by Executive order without parliamentary scrutiny. It is not clear to me whether the lack of opportunity for the Joint Committee to scrutinise the Bill is the fault of the Government or of the Supreme Court. It is probably a mixture of both. Personally, I would have preferred it if the Supreme Court decision had been postponed for a while, as suggested by Lord Hope, to provide at least some opportunity for parliamentary scrutiny of the emergency legislation's compatibility with fundamental rights. It looks as though the Supreme Court's order has deprived Parliament of the opportunity to scrutinise the legislation from the human rights point of view, by refusing to postpone the coming into force of that order. In that respect, Lord Hope's dissenting judgment looks a little more persuasive. My Committee has a good record of carrying out such scrutiny quickly. The last time was on the anonymity of witnesses emergency legislation. We produced that report extremely quickly, and we could have done so in this context too, in just a few days. One further complication is whether we would have been able anyway to scrutinise properly the Bill's compatibility with the Human Rights Act, in light of the al-Jedda judgment. That is an open question, because the judgment is going to the European Court of Human Rights for determination. The al-Jedda judgment said that UN obligations trump any domestic human rights treaty obligations—in this context, the European convention on human rights and, I suppose, the Human Rights Act. However, we would have been able to scrutinise the legislation for compatibility with common-law fundamental principles, which it might also offend. Another interesting question is whether this emergency legislation, or the draft legislation that has been published, will in due course attract a certificate of incompatibility. That may test the lawyers in the light of the al-Jedda judgment. Last March, the Secretary of State for Justice spoke at a public lecture, I believe at Clifford Chance, and said that the time had probably come to revisit the breadth of our counter-terrorism laws. This episode illustrates why that is necessary. What has happened recently in the challenges to control orders, the AF judgment and now the latest judgment illustrates the importance of such an overall review of our counter-terrorism laws to ensure that we get things right in the first place. There is no doubt that there is a human rights obligation to protect the public from the threat of terrorism, but one of my concerns is that the House never gets an opportunity to scrutinise that threat properly. The director-general of the Security Service is happy to make speeches to the Society of Editors and answer journalists' questions, and to speak to other learned bodies, but he is not prepared to make the same speech and answer questions before a Committee of the House of Commons or a Joint Committee such as my own. There is no doubt that it is right and proper to freeze terrorist assets, but it should be done justly and fairly. We are not talking about a huge amount of money— £150,000, which is probably only a fraction of the amount spent on lawyers to argue about the matter. It is probably less than a tenth of that amount. The judgment that I mentioned concerned five men whom the Treasury suspects of involvement in financing terrorism. It is important to note that none of the men has been charged with, let alone convicted of, terrorist financing or, as I understand it, any other terrorist offence. We have heard about UN Security Council resolution 1373, which obliges us to act to freeze the funds of"““persons who commit, or attempt to commit, terrorist acts””." It makes no mention of freezing the assets of those only suspected of involvement in financing terrorism. We should examine our terrorism laws in that context. We have a very broad definition of terrorism, going way beyond that of the UN. We also have an enormous range of terrorism offences, which I suspect is more broad than anywhere else in the world—it is certainly in the top bracket—but even in that context none of the individuals involved has been charged with or convicted of an offence. As we have heard, there is no provision for them to challenge the basis on which they have been suspected of involvement. I shall say a little more about judicial review later. It is worth repeating some of what was said by the Supreme Court. Lord Hope stated:"““It is no exaggeration to say…that designated persons are effectively prisoners of the state…their freedom of movement is severely restricted without access to funds or other economic resources, and the effect on both them and their families can be devastating.””" He stated that the orders"““strike at the very heart of the individual's basic right to live his own life as he chooses””." Lord Brown stated:"““The draconian nature of the regime imposed under these asset-freezing orders can hardly be over-stated.””" To return to my point about resolution 1373, Lord Phillips stated that it"““nowhere requires, expressly or by implication, the freezing of the assets of those who are merely suspected…Even if the test were that of reasonable suspicion, the result would almost inevitably be that some who were subjected to freezing orders were not guilty of the offences of which they were reasonably suspected. The consequences of a freezing order, not merely on the enjoyment of property, but upon the enjoyment of private and family life are dire.””" We have already heard about the comparisons with other common-law countries, but the real problem is the contradiction with our own basic fundamental principles of the common law. There is no doubt that if this were a Human Rights Act case—because of the al-Jedda case we do not know whether it is—the right to property under article 1 of the first protocol of the European convention on human rights, the right to respect for the family and private life under article 8 and the right of access to the court, protected both by common law and article 6, would be engaged. That prompts the question whether the law before us, in the current emergency legislation or in its final version, will give rise to a certificate of incompatibility under a further legal challenge. Lord Phillips commented:"““Access to a court to protect one's rights is the foundation of the rule of law””," and that is not provided for in the Bill. Lord Hope concluded:"““The consequences of the Orders that were made in this case are so drastic and so oppressive that we must be just as alert to see that the coercive action that the Treasury have taken really is within the powers that the 1946 Act has given them.””" That was why the Supreme Court ultimately quashed the orders. We will obviously have to have further primary legislation, but we must consider whether it is needed. We heard from the hon. Member for Twickenham (Dr. Cable) a long list of laws that we already have which could deal with the matter. The Chief Secretary said that they apply only to foreign cases, but we have heard no evidence today about how many of the people currently subjected to the orders in question are exclusively in the foreign domain and how many would therefore be caught by the existing laws. When the Exchequer Secretary responds, it would be helpful if she could say whether it is true to say that none of those cases could have been dealt with under the Anti-terrorism, Crime and Security Act 2001 for jurisdiction reasons, never mind for raisons d'état. Lord Rodger stated that"““the harsh reality is that mistakes in designating will inevitably occur and, when they do, the individuals who are wrongly designated will find their funds and assets frozen and their lives disrupted””." We have heard about the sunset clause, which will come into effect on 31 December. That inevitably means that we are enacting retrospective criminal legislation, and I understand that we may be asked to do that again later this week in another matter, which I shall not go into. The notion of retrospective criminal legislation is always profoundly suspect in any democracy governed by the rule of law. Article 7 of the ECHR makes it clear:"““No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed.””" The other problem with the sunset clause is that it will take us into the next Parliament. My hon. Friend the Member for Walthamstow (Mr. Gerrard) said that we do not have to rush permanent legislation through by 31 March, but having read the draft Bill, I believe that a couple of months would be sufficient to scrutinise it properly and take it through. This Parliament has gained considerable experience in scrutinising counter-terrorism legislation, as we have seen in the significant reductions in Government majorities on it as time has gone by. As Back Benchers have felt more concerned about what has been going on, they have become more confident about challenging some of the arguments advanced. A new Parliament, in which we understand at least a third of all Members will be new, may not have the confidence to challenge the new Government, whether Labour is returned or the Opposition win. That is why it is important that the matter should be dealt with in the existing Parliament. We have shown that we are prepared to stand up, for example on 42 days. The question is whether the new legislation will move us closer to compliance with Security Council resolution 1373. I do not believe that it will, because we will still have the grounds of reasonable suspicion for making orders, rather than the commission or attempted commission of terrorism acts. There will not be a right of appeal on the facts, and I take issue with the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg) on that. He said in an intervention that all the Government would have to prove was that a Minister had acted on reasonable suspicion. That is not right, because on judicial review, the claimant, not the Government, would have to prove on the Wednesbury test that the Minister had acted in such an unreasonable way that no reasonable Minister could have concluded that there was reasonable suspicion of an offence having been committed. Let us remember that that is on the basis of the person concerned not even having a case against them in the first place. A lot of the evidence will be closed, possibly through the special advocate procedure, and not open to the person involved. It might possibly be available through gisting, but certainly the whole case will not be available to them. If there were a case against them, the chances are that they would have been charged and prosecuted. The prospects of judicial review under the new legislation are a chimera, because it would be impossible to secure judicial review to challenge the basis on which orders are made. We have to have a proper judicial right of appeal, as with the decisions of Sir Thomas Legg, as the hon. Member for Poole (Mr. Syms) said. If we are entitled to have that right on the question of our expenses, surely people in the circumstances that we are discussing are entitled to have a similar procedure to challenge the freezing of all their funds and assets, no matter how small they may be. Judicial review is simply not a fair way of dealing with the issue. We have heard about legal aid and living expenses being provided under the licensing regime. I challenged my right hon. Friend the Chief Secretary about how that could be appealed against, and he said that it could be challenged in court. Again, however, that would be under the same judicial review test. He gave the example of buying trainers or books, but do we seriously expect a vast amount of legal aid money to be wasted on a judicial review challenge about whether somebody is entitled to buy books or trainers for their kids? That would be the consequence of there not being a proper right of appeal, judicial or otherwise, on the facts of what has been decided, which cannot be fair or right. Transparency is of course important, but let us remember that in most of these cases we will publish people's names. This is the first counter-terrorism judgment that I have read that names the individuals concerned. In other cases, people are called Mr. A or Mr. B or whatever—their anonymity is protected because they have not been convicted of any offences, and quite rightly. Those in the 14, 28, or 42-day cases have their anonymity protected, as do those subject to control orders, but those in the cases to which I have referred do not. It would be difficult to protect anonymity and achieve the object of the freezing order, but we need to think about some degree of confidentiality. It might be okay to tell the banks, but is it fair to broadcast it to the next-door neighbour? There are many issues of fairness in the Bill. I suppose the Minister will say, ““Well, this is determining a civil issue, not a criminal issue,”” but time and again that argument has been thrown out by the courts. Whether we like it or not, when it comes to counter-terrorism legislation, the courts determine criminal responsibility, which should be done using the criminal test. I have grave doubts about the Bill. The right hon. and learned Member for Sleaford and North Hykeham mentioned the Joint Committee on Human Rights sixth report of 2003-04. That report was published before I was on the Committee, but I wholly agree with its endorsement of the recommendation of the Newton Committee"““that freezing orders for specific use against terrorism should be addressed in primary legislation””." I think we all agree with that, which I suppose is why we are here today. If that had been done at that time, we would not be here today and the matter would have been resolved long ago. The Joint Committee report also states clearly that"““judicial review provides only a very limited protection against legislative orders of this kind””." I concur with that. The draft legislation that we will soon be debating simply does not provide the required safeguards. I say to my right hon. and hon. Friends on the Front Bench that I suspect that after the Joint Committee has scrutinised that Bill I will be making a similar speech, should I be re-elected.