Terrorist Asset-Freezing etc. Bill [HL]

My Lords, as has been said, it is entirely obvious that one should seek to freeze the assets of terrorists to prevent them accessing funds for the purposes of terrorism; but that, as both noble Lords who have spoken have indicated, does not describe the Bill in full. I appreciate that it was the previous regime, operated in a rather different way from that of the last year or two, that was mauled by the Supreme Court in Ahmed, but it is worth remembering some of the terms that were used, such as ““draconian””, ““devastating””, ““drastic””, ““dire”” and—not alliteratively—““oppressive””. Today and during the passage of the Bill we look for assurance that it is not in danger of being found not to be human rights-compliant, not only because human rights and civil liberties are inherently important, but also because, if there is a successful challenge to the Bill, the banks will be open to claims, we will have expensive mechanisms that do not protect the public, and the people who will win—this point was made several times when we dealt with the interim Bill—will be the lawyers, while those designated and their families will suffer. I say to the noble and learned Lord, Lord Davidson, that ““coalesced”” or not, those behind the Minister will seek to be not just critical but constructively critical. My first question, which again has been anticipated, is not ““Why this?”” but ““Why now?””. We asked for pre-legislative scrutiny at the time of the temporary provisions Bill. The consultation that has taken place was welcome, but it is not the same. Although we are still dealing with protection against terrorism, the governmental and legislative contexts are different. The coalition Government have made it clear, as the Minister said, that they will be, "““strong in defence of freedom””," and will introduce safeguards against the misuse of anti-terrorism legislation. The review that is being conducted by the Home Office is due to report in the autumn. I appreciate that some of these terms have wide meanings—I am not sure how long autumn will go on this year—but I hope that the Government will adapt the timetable for the Bill to take account of that review. I understand the problem of the sunset clause in the existing legislation, but there must be ways of dealing with this in order to get the right outcome for this Bill co-ordinated with the work that is going on in the Home Office. For too many years there has been rivalry between Whitehall departments, and I hope that this is not a case of unnecessary demarcation. The Minister used the words ““co-ordinated”” and ““aligned””. I would have liked to see a single review of asset freezing, but I hope that they will be as co-ordinated and aligned as possible. The remit of the counterterrorism review does not extend to this measure and I hope that the Government will not see themselves as committed to a Bill in these terms if the outcome of the counterterrorism review produces points that should be reflected and included. The Joint Committee on Human Rights will not have its first meeting until the autumn, and I am sure that it will have comments to make on the Bill, as did the Constitution Committee in what I thought was a very helpful and balanced report. I, too, should like to see plans for the consolidation, rationalisation and, indeed, perhaps reform of everything that ranges over the statue book on terrorism, terrorist financing and asset-freezing. I do not think that the fragmented regime is entirely helpful. I query whether the Treasury, as distinct from the Home Office, is the appropriate arm of the Executive to deal with these orders but, more fundamentally, I question orders being imposed by the Executive without any judicial input or evidential review. It would be possible, for example, to provide for the courts to deal with an urgent situation on an ex parte application by the Executive and then to take the matter over on an inter-partes basis. Having judicial input at the start would automatically provide a mechanism for appeal, which is also missing from the regime. The reasonable grounds for suspicion are set at a very low threshold and we will need to be convinced that it needs to be so low. Proving to the court on a balance of probabilities that someone is, or has been, involved in terrorist activity—or, if we are stuck with ““reasonable suspicion””, an objective test to so designate a person—would, again, deal with a number of concerns. In Committee, I think we will also want to understand how far in the past the terrorist involvement will need to have been to put someone in danger of having their assets frozen. There is no connection between suspected involvement and an ability or intention to use assets for terrorist activity. An individual with limited means would have no scope for such use but nevertheless could, by definition, given the issues around benefits, be designated. Should not the Executive be required to show that the individual has access to sufficient funds so that use for terrorist purposes is a possibility—a risk, in other words—that the funds will be so used? Reference has been made to judicial review. If there were a right of appeal instead of judicial review, that would not jeopardise the making of orders by the Executive. However, I am concerned that judicial review gives no opportunity to challenge the evidence on which a decision is made—not that the designee can be sure on what basis the Executive is basing its decision, given the closed material/special advocate procedures, which, in my view, are inherently incapable of delivering a fair hearing. Special advisers are not accountable and I am unpersuaded by the references that I have read to the Bar Council standards. It has never issued guidance, nor has it addressed the ethical issues, and indeed special advisers are not professionally accountable to those whom they represent. Judicial review can test the legality—a matter of vires—but, in dealing with the reasonableness of a decision, it is only Wednesbury reasonableness, to use the shorthand. That is not the same as proportionality, which addresses the outcome as distinct from the boundaries to discretion. Nor am I persuaded that quarterly reporting and consideration by an independent reviewer are sufficient. They come after the event; they are not a replacement for an appeal. However, to be more positive, I welcome the provision now in the Bill that benefit payments to spouses and partners will not be caught. That, though, does not address the fundamental point of whether the regime is compatible with fundamental rights. We have a licensing regime, and one must question whether it is possible for that to be effective against somebody who is determined to outwit it. Human rights were not the basis of the Ahmed case—only two justices thought that the regime would pass the human rights test if brought in as primary legislation. The others declined to deal with this, having decided against the Government on other grounds. We are all aware of the Al-Jedda case, which has gone to Strasbourg on appeal. If it reversed at the same time as this Bill is concluding its passage through Parliament, I am glad I shall not have to deal with that dilemma. Restrictions imposed in the past have been severe. At the time of the interim Bill, I was shocked to learn that they extended to funding for legal advice and representation. The paper reporting on responses to the consultation stated that controls will remain on any state benefits being paid directly to the designated person. I wonder how one aligns this with the DWP expecting the person to look for work, but perhaps that is a different issue. However, there is a big impact, and a stigma, on the family as well as on the individual. I appreciate the Government’s commitment to bring forward amendments in time for us to discuss them in Committee. Asset freezing is close to a control order by another name. Those orders are being reviewed, and so should the asset-freezing regime be as part of a single co-ordinated review. I hope that the Minister and the House understand that the points that I am making—and those that others will make—are suggestions of changes to the Bill and approaches to the issue which would make acceptable the necessary freezing of assets. In my view, the Bill has not quite got there.