Terrorist Asset-Freezing etc. Bill [HL]

My Lords, I intend to address the amendments that relate to the final order, and I therefore wish to degroup the amendments that relate to the intermediate order. It seems that the Bill has attracted little public attention, except from our own Constitution Committee, which was very critical of the Bill, and from bodies such as Liberty and Justice, which are even more critical. Liberty and Justice state in their briefing paper that they have four major concerns. The purpose of my amendments is to meet at least some of those concerns. The purpose of the Bill is to give effect to Security Council Resolution 1373, following the decision of the Supreme Court in the case of Ahmed, which quashed the orders made by the Treasury. The Bill was first drafted by the previous Administration, but that does not matter, because the starting point of its drafting should surely have been the decision of the Supreme Court in the Ahmed case and the light that it throws on the meaning and effect of Resolution 1373. Reading the Bill in July, my immediate impression was that Ahmed had been very largely ignored. The Bill simply puts on a statutory basis, as was required, the provisions of the Terrorism Order 2006, but ignores the very serious criticisms that the Supreme Court made of the order. To make that good in Committee, I referred to a paragraph in the judgment of the president of the Supreme Court, the noble and learned Lord, Lord Phillips. Afterwards, I wrote to the noble Lord, Lord Sassoon, to explain the difficulties that I had with the Bill, and he was courteous enough to reply. I make no apology for repeating the words of the noble and learned Lord, Lord Phillips, because they are central to what is wrong with the Bill. Having referred to paragraph 1(c) of the critical resolution, he continued: "““Paragraph 1(c) requires the freezing of the assets of those who commit the acts that the Resolution has required should be criminalised and their agents. Thus what the resolution requires is the freezing of the assets of criminals. The natural way of giving effect to this requirement would be by freezing the assets of those convicted of or charged with the offences in question. This would permit the freezing of assets pending trial on criminal charge, but would make the long term freezing of assets dependent upon conviction of the relevant criminal offence to the criminal standard of proof””." I emphasise those words and the sentence that follows: "““The Resolution nowhere requires, expressly or by implication, the freezing of the assets of those who are merely suspected of the criminal offences in question””." I turn now to what the noble Lord, Lord Sassoon, said in the debate in Committee on 6 October. He said: "““The Government do not support moving to a higher legal threshold than reasonable belief, for example by imposing asset freezing only on those who have been convicted of a terrorist offence. Such a move would undermine the preventive nature of the regime””." I will come back to that. The noble Lord said that such a move would also, "““be incompatible with international best practice and the aims of the United Nations Security Council resolution””.—[Official Report, 6/10/10; col. 122.]" With great respect, that is simply not correct. To make the commission of a terrorist offence the threshold of a freezing order could not be incompatible with the aims of the resolution, since, as I have just read out, that is what paragraph 1(c) specifically requires. States are required to freeze without delay the assets of persons who commit or attempt to commit terrorist acts—nothing less, nothing more. There is no mention anywhere in the resolution of those suspected of committing terrorist acts. If it is then said that in the passage that I have read the noble and learned Lord, Lord Phillips, was, as it were, on a frolic of his own, then what about the noble and learned Lord, Lord Mance, at page 451 of the judgment? At paragraph 225, he said: "““The relevant wording of Security Council Resolution 1373 … is directed at the prevention and suppression and the criminalisation and prosecution of actual terrorist acts; at the freezing of funds or other financial assets or economic resources of persons ‘who commit””—" again, the same words— "““or attempt to commit, terrorist acts or participate in or facilitate the commission of terrorist acts’””." A little later, he went on to say that the wording of paragraph 1(c), "““does not suggest that the Security Council had in mind ‘reasonable suspicion’ as a sufficient basis for an indefinite freeze””—" what we here call a final order. I would add that nor is there any suggestion that the Security Council had in mind ““reasonable belief””, as opposed to ““reasonable suspicion””. At paragraph 197 of the judgment, the noble and learned Lord said that reasonable suspicion, "““goes well beyond the strict requirements of Resolution 1373””." The noble and learned Lord, Lord Brown, said exactly the same at page 196. I need not refer to his language because it replicates that of the noble and learned Lords, Lord Mance and Lord Phillips. The only justice to have expressed a contrary view was the noble and learned Lord, Lord Rodger, at paragraph 170, but none of the other six judges agreed with him. Therefore, in my submission there is no doubt at all about what the Supreme Court decided. That is put very well in the rather lengthy head note, of which I should perhaps refer to a very small part. It said that the appeals would be allowed because Resolution 1373 was not phrased in terms of reasonable suspicion, so by introducing such a test the terrorism order went beyond what was necessary or expedient to comply with the relevant requirements of the resolution and that accordingly the terrorism order was ultra vires the powers conferred. Therefore, again, there is no doubt about what the court decided. However, when this Bill was being drafted, those responsible for the drafting must have read the speech of the noble and learned Lord, Lord Rodger, but overlooked the speeches of the three noble and learned Lords to whom I have referred and what, on any view, was the actual decision of the court. I hope that, when he comes to reply to this amendment, the noble Lord, Lord Sassoon, will accept that my amendments are not in any way incompatible with Resolution 1373—indeed, quite the opposite. They give meaning and effect to the resolution in precisely the way that the Supreme Court indicated. As a result of the Second Reading debate, and in particular the speech of my noble friend Lord Pannick, the Government now accept that ““reasonable suspicion”” is not good enough and instead they have substituted ““reasonable belief””. The noble Lord, Lord Rodger, said that it is very difficult to say how much difference there actually is in practice between those two. I think he describes suspicion as being ““only a little less stringent than belief””, or words to that effect. Whatever the precise difference between those two, surely it is clear that exactly the same argument, which has led the Government to accept that suspicion is not good enough, must also apply to what they have now substituted; namely, belief. It is true that belief will catch fewer innocent people than suspicion, which I assume to be the reason for the change, but I doubt whether it will make much difference. The point remains the same: that belief, like suspicion, casts the net too wide; it is far wider than the resolution requires, so that more innocent people will inevitably be caught. That is why it is so important to keep to the words of the resolution and not to change the essential nature and target of the resolution. I put it to your Lordships that that means the final order must be confined to those who have been arrested and charged with a terrorist offence and that is what will be achieved by my amendments, if they are accepted. I beg to move.