Terrorist Asset-Freezing etc. Bill [HL]

My Lords, the purpose of our amendments is to raise the broad issue of compensation and indemnity for consideration by the Committee. The suggested amendments have, as their provenance, the Australian terrorist asset-freezing regime. There are two principal parts to our proposed scheme: first, to indemnify persons from civil litigation for loss suffered as a result of having assets wrongly frozen when the person holding the asset has acted in good faith and without negligence, which includes protection from the Crown, needless to say; and, secondly, to compensate those persons who have suffered loss as a result of having assets wrongly frozen, when the person holding the asset has acted in good faith and without negligence. The draft of the proposed amendment differs from the Antipodean legislation but follows the same approach as adopted in Australia. The position in Amendment 52 on indemnity is self-explanatory—namely, to exclude liability when the person has acted in good faith and without negligence in compliance or purported compliance with this part. It then sets out, perhaps a little inelegantly, how the various persons and institutions might be identified by reference to designation. The second, related, aspect is compensation, set out in Amendment 46, which suggests a power for the Secretary of State to make orders providing for compensation when people have suffered loss as a result of an incorrect designation. The order may include various provisions, as is set out in the proposed amendment, on who can claim for an award, with which court the claim may be made, and so on. The phrase adopted, "““suffered loss as a result of an incorrect designation””," would include persons incorrectly covered by a designation, such as someone with a similar name or the same name as the designated person—and US experience teaches us that that has become an increasing problem with terrorist-related issues. It would also include a designated person who has had their assets frozen incorrectly—for example, inconsistently with an applicable licence. As I indicated earlier, we understand that the Government consider that there is sufficient compensation by way of a mechanism through appeal to the court. When I queried the Minister about this, I am not sure that I detected a complete response to our understanding. If my understanding is correct, one is in the position that the appeal court may make these orders, presumably by way of compensation. It would be helpful if the Minister could give some indication as to how it might be envisaged that such a process would work. It may be that it is seen as part of the judicial review process. Again, it would be helpful if it could be indicated how that might work. The Government have also not included any particular compensation scheme in this Bill, but in so doing have distinguished the Bill from the Anti-terrorism, Crime and Security Act 2001, which provides a compensation scheme to be included with a freezing order. The proposal that is before the Committee in this amendment seeks to redress the dissonance between that Act and this Bill and to provide a transparent compensation scheme together with a proposed scheme for indemnity. That would avoid what might be called collateral damage from the operation of the asset-freezing regime proposed in the Bill. I beg to move.