Terrorist Asset-Freezing etc. Bill [HL]

My Lords, the purpose of the amendment is to provide for a High Court judge to make the interim designation, not a Treasury Minister. The Minister makes the application for an order, but it is the judge who should make the order. That is the normal course of events when a person’s assets are being frozen, for whatever reason, and it is right, given that the freezing of a person’s assets has all the dire consequences described by the Supreme Court in the case of Ahmed. What is proposed makes the defendant, in effect, a prisoner of the state, as Lord Justice Sedley said in the Court of Appeal and as was repeated in the Supreme Court. It is normal for asset-freezing orders to be made by judges. That has been the case since long before Resolution 1373. It was the judges, after all, who invented the Mareva injunction in the middle of the 19th century. I may have meant the 20th century—perhaps I was a century out. Such injunctions enabled a plaintiff with a good arguable case to go before the judge and obtain an order or injunction freezing the defendant’s assets, if it seemed likely that those assets would be dissipated before any judgment against him. This happened often—I have granted many such freezing orders—and the system worked. The defendant, for obvious reasons, was not given notice of the application before it was made, otherwise it might have proved fruitless—he would have dissipated the assets before the order was made. When the order was made, he could come before the judge and seek to have the order set aside or varied. That is a well established system, as any judge or lawyer in the House would know. I cannot understand why that procedure should not be applied here. The Minister was pressed at some length in Committee to give reasons why it should not work in that way. He said that in the end it came down to speed and complexity. However, there is nothing in either of those grounds. As soon as the Minister has grounds for suspicion, he can go before a judge the very next day and get his order. That is what happens as a matter of course in the commercial court, so I see no difficulty on the ground of speed. Of course, the Treasury Minister, when he makes his application, will have to have formulated his grounds, but he would have to have done so in any event, since the defendant, as soon as he has notice that he has been designated and that his assets have been frozen, will certainly go straight to the judge on appeal, as he will now be entitled to do. Since he can do that, and since the Treasury Minister will have to explain at that stage—perhaps the very next day—why the order has been made, clearly the Minister will have to have his tackle in order before the application is made. I suggest that there is nothing in the ground that this cannot be done quickly enough in the ordinary way. The ground of complexity is equally without foundation. It is absurd to suppose that judges in the Administrative Court cannot understand these things. They have to understand them as soon as the defendant who has had his assets frozen goes to the judge, as he can do the very next day, so why can they not be made to understand them before the order is made by the Minister? If there is no objection on either of those grounds to the order being made in the usual way, what is the real objection? It seems that this is the way in which it has always been done by the Treasury. Another reason is that the decision is more suited to the Executive and, indeed, is the proper function of the Executive. I regret to say that I cannot agree. Indeed, I hope never again to hear it said that a decision that takes away a man’s right to deal with his property as he thinks fit is more suited to the Executive than the judiciary. In Committee, I asked the noble Lord, Lord Carlile, whether he could think of any other order of this type that affected the liberty of the subject in this way. He could think only of a control order, which hardly provides a trouble-free precedent for what is proposed in this case. Let us assume that the result of the review being carried out by the Home Office is that we get rid of control orders, as I profoundly hope that we shall. How then can we justify continuing the regime that the noble and learned Lord, Lord Brown, described as ““scarcely less restrictive”” than control orders and which he said could be ““even more paralysing””? I repeat what I said in Committee: I am in favour of interim orders being made on the basis of suspicion. To that extent, the Government are right. However, I am wholly against the orders being made by the Executive rather than by a judge in the ordinary way. I beg to move.