My Lords, the Terrorist Asset-Freezing (Temporary Provisions) Bill makes provision for the temporary validity of Orders in Council that impose financial restrictions on, and in relation to, persons suspected of involvement in terrorist activity, and for connected purposes.
The whole House will, I know, understand that terrorism continues to pose a threat to the UK. The Home Secretary recently raised the UK terrorist threat level to “severe”, meaning that an attack on the UK is highly likely at any time. As noble Lords know, terrorist organisations including al-Qaeda have executed or planned a succession of attacks with the aim of causing mass casualties. Measures to prevent terrorist finance are at the heart of the international effort against terrorism. Without resources, terror networks are unable to plan, to organise or to execute attacks. For this reason, the United Nations requires that all states freeze, without delay, the assets and resources of people who commit, attempt to commit, participate in or facilitate the commission of terrorist acts. Our tools to combat terrorist finance therefore, have become an important part of the UK’s counterterrorist strategy. Our measures must be proportionate but they must also be robust and effective. Terrorist attacks are not expensive, and even small amounts of money in the wrong hands can cause devastation. The attacks in London on 7 July 2005 cost the perpetrators just £8,000.
While financial sanctions have a long history, their use against terrorists is only around a decade old. The UN Security Council established an asset-freezing regime against the Taliban in 1999. It was quickly extended to include Osama bin Laden and persons associated with al-Qaeda. In the weeks after 9 September 2001, the UN created a separate requirement on member states to freeze the assets of those involved in terrorism more generally, where those individuals were identified by member states. The UK acted quickly; using secondary legislation under the United Nations Act, we were able to ensure that our freezing regime was in place by 10 October 2001, only 12 days after the UN Security Council passed the resolution.
Some people have asked why we used secondary legislation under the UN Act in the first place rather than putting our regime into primary legislation. The answer is that in good faith we believed that the United Nations Act was the right legal base. Section 1 of the United Nations Act has been used since 1946 as an established basis for successive Governments to implement our UN obligations on matters concerning threats to international peace and security. Section 1 of the UN Act says:
“If, under Article forty-one of the Charter of the United Nations, the Security Council of the United Nations call upon His Majesty’s Government in the United Kingdom to apply any measures to give effect to any decision of that Council, His Majesty may by Order in Council make such provision as appears to Him necessary or expedient for enabling those measures to be effectively applied”.
Given that there are clear UN Security Council obligations to freeze the assets of terrorists, the Government believed that the UN Act gave them legitimate authority to make secondary legislation to freeze terrorist assets. The Court of Appeal upheld the Government’s position. The Supreme Court decided on 27 January 2010 that the United Nations Act does not go so far as to give us that authority and that the Orders in Council we have used were therefore not validly made.
However, I hope noble Lords will appreciate that until the Supreme Court made its judgment, the correct interpretation of the United Nations Act was unclear. The Government acted in good faith when using it as the basis for implementing UN asset-freezing obligations.
The Supreme Court ruled that the Terrorism (United Nations Measures) Order 2006 and the Al-Qaida and Taliban (United Nations Measures) Order 2006 were beyond the scope of the power provided by Section 1 of the United Nations Act 1946, and quashed both orders. On 4 February, it ruled not to grant the Government any stay or pause before its judgment took effect.
Assets frozen under the UN regime on al-Qaeda and the Taliban remain frozen under the effectively parallel EC regulation. However, the Supreme Court’s judgment has the effect of removing the sanctions for breach of its provisions, so we will attach sanctions to the EC regulation through secondary legislation. This will be debated in the House in due course through an affirmative procedure.
The court then also struck down the terrorism order 2006, and in so doing rendered vulnerable the terrorism orders of 2001 and 2009. There is no back-up EC regulation for the UK’s designations under the terrorism orders. Primary legislation is therefore needed to ensure that we can continue to freeze terrorist assets.
Currently, more than £150,000 is frozen in the UK under the terrorism orders. We need to act quickly to ensure that this money remains frozen and that suspected terrorists are not allowed to use the financial system to raise and move funds. That is why this Bill is being fast-tracked, with all stages being considered in this House in one day. I appreciate that one day is inadequate to consider legislation of this significance, but I hope noble Lords will understand why we need to act quickly.
The Bill seeks to provide a temporary legal base for the Orders in Council, aimed at freezing assets of those we reasonably suspect are involved in terrorism where it is necessary to protect the people of this country. This Bill will, if passed, restore the UK’s terrorist asset-freezing regime in primary legislation as a stop-gap, before a full Bill can be considered and, I hope, passed into law. This course of action allows the House to scrutinise our proposals, while eliminating any risk of a gap in our asset-freezing regime. Through this action we are able to provide legal protection for the banks, to ensure that terrorist assets remain frozen, even though the Supreme Court judgment was not stayed. We have already published the full Bill to which today’s legislation is merely a bridge. I hope the House will agree that the fuller Bill deserves a great deal of scrutiny.
When that fuller Bill is considered in the House, will it take account of the fact that, while this freezes some terrorist assets at present, many terrorists are closely involved in serious organised crime? The figures the Minister has given for what is actually going to be frozen under this are minute compared to the resources available to some of these organisations. One of the tragedies of recent years and successive Administrations around the world is the total failure to deal effectively with money-laundering by terrorists and serious organised crime.
I note the observation from the noble Lord, Lord King. Matters relating to serious organised crime are already dealt with by other agencies and legislation. This legislation focuses on the use of finances that are specifically related to the risk of terrorism activity which threatens the United Kingdom. No doubt the authorities will at all times be vigilant in recognising the area where organised crime may well abut terrorist activity, and will be alert to ensure that we are vigilant in addressing that risk.
I should make it clear at the outset that today’s Bill, and the fuller Bill, seek only to restore the asset-freezing regime that is implemented through the terrorism orders— that is, the regime mandated by UN Security Council Resolution 1373, where listings are made at the national level. The Bill does not seek to restore the UN al-Qaeda and Taliban asset-freezing regime. That is the regime mandated by UN Security Council Resolution 1267, where listings are made at the UN. As I mentioned earlier, the al-Qaeda regime remains in effect through a directly applicable EC regulation. Noble Lords will be aware that the Supreme Court had specific concerns about the UN al-Qaeda regime—in particular, the lack of direct access to a court for people who are listed at the UN. Those specific concerns do not arise on this Bill, because it seeks only to restore the terrorism order regime, where decisions are made nationally and individuals have access to UK courts.
With the House’s permission, I shall briefly outline the Bill’s effects. It seeks to maintain the Treasury’s power under the Orders in Council to designate persons if they meet both the required conditions of a legal test: reasonable suspicion that the person is involved in terrorist activity, and that the designation is necessary for public protection. The effect of a designation is to forbid dealing with a designated person’s funds and economic resources; to forbid making funds or economic resources available to such persons, and to forbid funds or economic resources being made available to a person when the designated person will obtain significant financial benefit. The orders will continue to provide for licences to permit access to funds and to ameliorate the effect of the sanctions. The Treasury will remain open to legal challenge to its asset-freezing decisions, including the procedures approved by Parliament in the Counter-Terrorism Act 2008.
Perhaps I might turn briefly to retrospection. The Bill makes retrospective provision in one respect only. It gives retrospective legal authority for banks and any other institutions to maintain existing freezes between the dates of the Supreme Court judgment—4 February—and Royal Assent. I know that retrospective legislation is a very serious business and should be contemplated only where absolutely necessary. I assure your Lordships that this provision is necessary; without legal cover, banks would not have been able to maintain existing asset freezes for the past five days, and asset flight might already have happened at a cost and risk to our national security.
The Bill is time-limited to expire on 31 December 2010. We believe that the end of the year is the right timetable, as it will allow time for more permanent asset-freezing legislation to be given full consideration both in Parliament and in pre-legislative scrutiny. I could not be confident that, given elections and recesses, this job of scrutiny could be safely dispatched and a full Bill could then be taken through both Houses before 31 July 2010. Today’s Bill is unavoidably urgent, but we do not believe that we should be fast-tracking two asset-freezing Bills through Parliament in close succession.
I want to respond to a number of points concerning human rights safeguards that were raised yesterday in debating the Bill in the other place, and which I expect noble Lords will also want to discuss today, both at Second Reading and in Committee. There are fundamental issues that are important to all Members of this House. Our intention is that all those issues be fully considered and debated when this House considers permanent asset-freezing legislation in the coming months. However, I understand that noble Lords will want some discussion of these issues today to be satisfied that the regime they are voting to extend in this Bill today until the end of the year is proportionate and fair.
Before coming to some specific issues, I want to explain that our asset-freezing regime is tried, tested and fit for purpose. It was subject to rigorous analysis by the Financial Action Task Force in 2007 and was judged to be, in its words, “fully compliant” with international best practice—we are the first country, incidentally, to get this top mark—and we have improved it through experience. For example, as the Supreme Court itself pointed out, the Terrorism Order 2009 is an improvement on the 2006 order, with more safeguards and greater proportionality.
One question that was raised yesterday in the other place, and which I see is also raised in an amendment we will discuss later, is whether “reasonable suspicion” is the right legal test. We believe strongly that it is. If we want the regime to be preventive rather than punitive, which we all do, freezing people’s assets only when they are convicted is not the right approach. Such an approach is not very preventive as it may mean that freezes cannot be imposed for more than a year after someone has been detained, while they are still awaiting trial. Indeed, waiting to freeze assets until someone is convicted may simply appear punitive; an additional form of punishment on top of a prison sentence. The Financial Action Task Force is clear that reasonable suspicion is a proper legal basis for meeting UN asset-freezing obligations. As I mentioned earlier, we do not simply rely on the reasonable suspicion test. Designations must also be necessary for public protection, which acts as a safeguard against any arbitrary use of the power to make designations.
A number of Members in the other place expressed concern that using reasonable suspicion as a test may leave people in a sort of limbo situation where they have their assets frozen without knowing the case against them, without being charged with a criminal offence and without any means of getting an asset freeze removed. I will explain why this perception is not accurate. First, it is not true that people do not know the case against them. When people are designated, we provide them with as much information as we can share about the reasons for their listing. Only relatively few cases involve closed source material that cannot be shared directly with the designated person. Of the 33 UK people currently designated under the terrorism orders, six were designated on the basis of closed information and 27 were designated on the basis of open material.
Secondly, it is not true to say that people on an asset freeze list are never charged with a criminal offence. In fact, a clear majority also face action through the criminal justice system. Of the 33 people designated under the terrorism orders, 27 have been charged with a terrorist offence. Of these, 22 have been convicted; four are awaiting trial or retrial; one has recently had their charges dropped and we are urgently reviewing their listing.
Finally, it is not true to say that people can never get off an asset freeze list. The Treasury has a track record of actively reviewing designations and revoking them when they no longer meet the legal test. Of the 51 UK designations made under the orders to date, 18 have been revoked following a Treasury review; for example, where criminal charges have been dropped or where an individual is no longer assessed to pose a significant threat. Under the Bill, the Treasury will continue to carry out such reviews on a yearly basis, or more frequently when there has been a change in a person’s circumstances.
A further question raised on several occasions yesterday in the other place was whether the right of individuals to challenge their designations in court under a judicial review procedure provided sufficient redress. The Government are of the view that court scrutiny should happen after freezing decisions have been taken and individuals have decided to challenge them. We do not believe that courts should be taking the decision to impose the freeze in the first place. These are decisions that the Executive can rightly take, with the safeguard, as I outlined earlier, that all decisions must be necessary for public protection and supported by proper evidence.
We believe that judicial review is the right procedure for the courts to examine cases that are brought before them. Judicial review is not, as some might argue, a light touch that lets the Executive off the hook. On the contrary, as we have seen in control order cases that have come before the courts, a judicial review procedure closely scrutinises the Government’s decision-making processes and the evidence used to support them.
It might help if I explain in detail how the judicial review procedure works for control orders. There is an automatic review process by the High Court to determine whether the Secretary of State's decision to make a control order was flawed. In other words, the judge must agree: first, that there is reasonable suspicion that the individual is or has been involved in terrorism-related activity; and, secondly, that a control order is necessary to protect members of the public from a risk of terrorism. The judge must also satisfy himself that each obligation imposed by the order is necessary and compliant with the ECHR, including Article 5, which deals with the right to liberty, and Article 8, which deals with the right to respect for private and family life. The judge will further ensure that the individual's right to a fair hearing in accordance with Article 6 is protected.
If any of these tests is not met, the judge can quash the order, quash one or more obligations imposed by the order or give directions for the revocation of the order or for the modification of the obligations that it imposes. The court may consider the case in open or closed session, depending on the nature and sensitivity of the information under consideration. Individuals are represented in open court by a lawyer of their choice. Special advocates are used to represent the interests of the individuals in closed sessions.
Finally, I know that a number of noble Lords will be concerned about the human rights impacts of the asset-freezing regime and will have noted the comments of some of the Supreme Court judges referring to the regime as “draconian” and designated persons as “prisoners of the state”. Again, these points were raised in the other place yesterday. I should stress that the Supreme Court did not make findings that the asset-freezing regime breached human rights. It quashed the orders because of the legal base. Given that the court did not make human rights findings, we should be careful not to take some individual comments in the judgment as representing definitive views of the court about the nature of the regime.
Some of the Supreme Court Justices expressed clear views that the orders were not disproportionate. The noble and learned Lord, Lord Brown, for instance, said:
“I am unimpressed by the alternative grounds on which the Order is challenged, those of certainty and proportionality. Primary legislation introducing this same asset-freezing regime could not have been declared incompatible on those grounds. It is only because the Order was plainly insufficiently mandated by the SCR 1373 that I would hold it invalid”.
The noble and learned Lord, Lord Mance, with whom the noble and learned Lord, Lord Phillips, agreed, said:
“I agree with the Court of Appeal’s reasoning and conclusion that the relevant provisions of articles 7 and 8 were and are sufficiently certain to be valid … I am at present also unpersuaded that the content of the Orders could be challenged on grounds of lack of proportionality, although I need express no final view about this. Combating terrorism, and the freezing of funds or resources which can be used for terrorist purposes, are undoubtedly matters of first importance”.
We take great care to ensure that the regime is proportionate.
As set out in the Written Statement that I laid before this House on Friday, central to this is our licensing regime. We make sure when we designate people that we immediately issue a legal aid licence so that people can receive legal aid, if eligible. We also immediately issue a licence to allow them to receive and use their state benefits without delay. We do not limit people only to basic expense. We impose licence conditions, but only conditions that are proportionate to ensuring that funds are not diverted to terrorism. As I announced on Friday, we no longer require spouses of designated persons to report to the Treasury on how they spend benefits money. That will help to minimise the impact that the regime has on spouses and families.
In closing, in these times of severe threat to our national security, we cannot afford to fail to take the necessary steps to prevent terrorists raising and using funds for purposes of terrorism. Without primary legislation of the kind before the House today, we will leave gaps in our defences which could be exploited by people who intend serious harm to the British public.
The Bill ensures that the proper safeguards we set out in the Terrorism Order 2009 will continue to apply. At the same time, the Bill will provide Parliament with the proper time needed to consider and debate the permanent legislation in full. I therefore commend the Bill to the House.
Before the noble Lord sits down, perhaps I may ask for information on one point which I do not entirely understand. He referred to £135,000 as having been frozen under the orders of 2001 and 2009, but am I not right in thinking that those orders have in fact been quashed? So at the moment, at any rate, they are quite safe. It is only the 2006 order that has been quashed, and that relates to £16,000 only, which has presumably now gone. Is that the right analysis?
I believe that the noble and learned Lord is correct, but that we can no longer depend on the other orders in the light of the Supreme Court’s decision. If, however, officials give me a more precise answer, I will of course make sure that I provide it to the House and to the noble and learned Lord in my closing speech.
My Lords, I thank the Minister for introducing this Bill. Let me say at the outset that these Benches support and have consistently supported the Government in helping to ensure that terrorists do not threaten the security of the UK or, indeed, of other nations. We have supported a bewildering array of anti-terrorism measures in the past decade and we will support the Bill before us today. However, in lending our support, we reiterate our call for a review of the totality of anti-terrorism legislation. This patchwork of legislation, not just for asset freezing, lacks clarity, and it is time that the Government moved beyond a piecemeal and reactive approach. We are committed to reviewing and consolidating national security-related legislation and to ensuring its compatibility with fundamental rights and freedoms.
Our support for anti-terrorism legislation is never unconditional. That legislation has to be proportionate, and inevitably there is a balance to be struck between the rights of individuals and the public interest, but Parliament is the right place for that balance to be determined. The Supreme Court decision handed down on 27 January made plain the impact on individuals affected by the various freezing orders covered by the Bill, and the Minister has quoted some of the words used in the Supreme Court: “draconian”, “drastic”, “burdensome”, “oppressive” and “prisoners of the state”. However, as the Supreme Court made clear, Parliament should have been involved in determining whether and how the rights of the individuals were to be protected under the orders. The Supreme Court was clear that it was for Parliament to determine.
When the United Nations Act 1946 was passed, it was in the context of a very different world from today. All of the orders made under that Act prior to 2001—and indeed a good number of those made subsequently—deal with sanctions against countries rather than individuals. I rather doubt that the 1946 Act, with its Order in Council process, would get through your Lordships’ House unamended today, possibly even if it were restricted only to sanctions against nation states.
In 2001, however, the Government decided to use the 1946 Act for the anti-terrorist measures mandated by the UN Security Council. The Treasury has some form in using legislation in a way for which it was not initially intended. We all recall that the Treasury surprised many people, including the Icelandic nation, when it used the asset-freezing powers of the Anti-terrorism, Crime and Security Act 2001 to freeze the assets of certain Icelandic banks.
The Treasury has never fully explained why it chose to use the 1946 Act rather than primary legislation which could have been processed through a fast-track procedure in 2001. The Written Ministerial Statement of 27 January, and the Minister today, referred to the Government acting,
“in good faith based on their belief that section 1 of the United Nations Act was an appropriate legal vehicle”.—[Official Report, Commons, 27/1/10; col. 54WS.]
Did it never occur to the Government that they had taken too much power to the Executive, to the detriment of those who were targeted by the orders? Did they never stop to think that Parliament ought to have been involved in the decisions? Did they not recognise the rights and liberties of the individuals who might be affected? If they had done so, the only logical conclusion to have drawn would have been that the balance between the interests of national security and those of individuals were best decided by Parliament and not by the Executive alone.
If it did not occur to the Government that they were acting inappropriately in 2001, did they not pause for thought when the Judicial Committee of the Privy Council, chaired by my noble friend Lord Newton of Braintree, highlighted in 2003 the human rights issues involved in asset freezing? Or perhaps when the Joint Committee on Human Rights issued its sixth report of the 2003-04 Session? Or even when New Zealand and Australia replaced their regulations with primary legislation? The Government have known since the High Court ruled against them in April 2008, after a legal challenge, that their use of the 1946 Act was vulnerable.
It is unattractive when the Executive try to take maximum power for themselves and then are prepared to go right through the courts to defend it. I cannot help but think that it would have been more responsible for the Government to recognise the force of the arguments in the High Court judgment that have now been endorsed by the Supreme Court, and to have brought forward primary legislation in 2008.
Would the noble Baroness kindly give way? I am most grateful. The point that she made about the decision of the High Court in April 2008 is perfectly valid. However, I am sure that she will accept that the Court of Appeal reversed the decision—I think unanimously—a few months later.
From memory, it was not a unanimous decision: there was criticism of some aspects of it. However, I accept that the Court of Appeal ruled in favour of the Government. My point is that the Government were on notice that they were vulnerable, but they chose to battle on through the courts rather than put the legislation on a more secure basis by involving Parliament. It should have been clear to the Government that Parliament had not been properly involved in the early decisions, and that the proper way forward was to bring legislation that would involve Parliament in the construction of the way in which individuals’ assets would be frozen. However, they stuck it out until the very end and lost in the Supreme Court. That made it inevitable that we would have emergency legislation. We are in this position because the Government failed to act.
The Government first informed us nearly two weeks ago that they intended to take through the legislation, which was published in draft form last week, on an expedited basis. The Bill would replace the orders under the 1946 Act with a dedicated Bill. Dates had been provisionally agreed that would have allowed both Houses to consider the Bill on a rapid but acceptable timescale. The plan was for the Bill to start in the other place today and for it to have been completed in your Lordships’ House, with Second Reading, Committee, Report and Third Reading taken over the first two weeks of March. However, once the Government heard that their application for a stay had been rejected by the Supreme Court, they abandoned that Bill and opted for the minimalist Bill before us today. They have dressed this up as the virtue of pre-legislative scrutiny; but they showed no interest whatever in extensive or pre-legislative scrutiny right up to the time that their stay application failed.
There is also a puzzle. The Government have asset-freezing powers in the Anti-terrorism, Crime and Security Act 2001, which the noble and learned Lord, Lord Hope, the Deputy President of the Supreme Court, said could have been used for the cases covered by the appeals. I believe that that legislation has been used only once, in the case of the Icelandic banks to which I referred earlier. The Government have not properly explained why they do not use that legislation for terrorist asset freezing; in what ways their view differs from that of the noble and learned Lord, Lord Hope; or, indeed, why a simple amendment to that Act could not give them the legislative cover that they need.
The Bill has a sunset date of 31 December 2010. It could have been managed perfectly well with a 31 March sunset. It would have been possible and, in our view, desirable if the longer Bill putting terrorist asset freezing onto a proper footing had stuck with the timetable that we had already agreed. We told the Government last week that we were ready and willing to do that in addition to dealing with this emergency Bill this week. The chairman of the Human Rights Committee said yesterday in another place that 31 March would have allowed his committee enough time to scrutinise the longer Bill. The Government are still running away from proper parliamentary scrutiny.
We believe that it is about time there was a debate in Parliament about the balance between the rights of those who are the subject of asset freezing and the needs of national security. We need to debate whether there should be some involvement by the courts in the designation orders themselves, by way of review or confirmation. We should examine why terrorist asset-freezing orders are more draconian than asset freezing for money laundering or criminal purposes, for example under the Serious Organised Crime and Police Act 2005, where the courts have a greater involvement.
We need to debate whether the appeal processes first set out in the Counter-Terrorism Act 2008 are appropriate. They are based solely on judicial review processes and remedies and so are heavily weighted in favour of the Executive. I disagree with the Minister's analysis of judicial review. It does not allow an examination of the merits of the case and it also does not allow, for example, for orders to be varied, which is important when dealing with licences for the use of financial resources. We need to debate the way in which the various offences are constructed and why some of them are restricted to situations where significant benefit is involved while others are not. We need to subject the information provisions to scrutiny and ensure that the privilege regarding self-incrimination is not damaged.
We have a long list of more detailed points which can be taken forward only in the context of a longer Bill. We are denied the opportunity to deal with those points because the Government have chosen the minimalist emergency legislation. All the points that I have mentioned are relevant to the minimalist Bill but they cannot be debated given the structure of the Bill and the timetable to which we are working. I know that the noble Baroness, Lady Hamwee, has tabled amendments for our Committee stage this evening, but I do not think that this short Bill is the right place for them.
Let me reiterate that we believe in a strong and effective regime which can minimise the threat posed by terrorism in whatever guise it appears. However, we are mindful of the need to accord those suspected of involvement in terrorism the sort of rights that a civilised and libertarian society accords its citizens. The Bill does not allow a proper consideration of those issues. We shall return to some of them when we reconvene later today for the Committee stage but we shall not debate them properly until there is a full Bill to scrutinise. I regret that the Government are denying Parliament that opportunity.
My Lords, the judgment of the Supreme Court established three principles which the House will wish to have well in mind during the course of this debate. First, the Supreme Court decided that the international obligations of this country under the UN resolution extend only to those persons who are involved in terrorism. Secondly, the Supreme Court explained that because the relevant orders purport to go much further and apply to those in respect of whom there are only reasonable grounds for suspecting their involvement in terrorism, the orders were not validly made under the United Nations Act 1946. Thirdly, the court emphasised the destructive effect of these orders on the lives of those affected and the consequent need for considerable care and attention in ensuring the legality of any order so made. Some of the language of the justices has already been quoted in this debate.
The undoubted urgency of this matter has meant that there has not been an adequate opportunity for your Lordships to reflect on the important issues raised by this Bill. There has also been no time for your Lordships’ Select Committee on the Constitution, of which I am a member, or for the Joint Committee on Human Rights to consider and to report on the major constitutional and human rights implications of this Bill.
No doubt we have no choice but to accept this Bill. However, we should record and we should regret that we are in this difficult position because of the Government’s failure to heed earlier warnings that they were acting unlawfully in relation to these measures to combat terrorism. This Government have a very poor record of ignoring advice that their measures relating to terrorism are unlawful—detention in Belmarsh, control orders, stop-and-search powers and now the freezing of assets. I declare an interest as counsel in some of the litigation in relation to these matters. If the Government were to listen more carefully and with, if I may say so, a little more humility to bodies such as the Joint Committee on Human Rights and the organisations, JUSTICE and Liberty, for example, the Government would not need to come before this House today and ask for help in clearing up the mess that they have created.
I hope I am not the only noble Lord for whom the constitutional principles set out by the Supreme Court matter. I hope I am not the only noble Lord who is most reluctant to wave a magic wand over these measures to validate, even temporarily, what is otherwise constitutionally objectionable. It is ironic indeed that when the Supreme Court has found these orders to be invalid because of the absence of parliamentary debate and parliamentary approval we are now asked to negate that invalidity by a procedure which allows for the most limited debate in Parliament. Like the noble Baroness, Lady Noakes, I am concerned that the Government prefer orders rather than primary legislation precisely because they do not value debate on these important matters. We will need reluctantly to approve a temporary measure, but all its provisions must be scrutinised most carefully in Committee to ensure that they are necessary and proportionate.
Noble Lords will not dispute the need to validate freezing orders against people who have been found to be involved in terrorism. Noble Lords will also accept the need to validate such orders against people who the Secretary of State believes, on reasonable grounds, to be involved in terrorism. As the Minister rightly said, of course freezing orders must be available against people who have not yet been convicted for terrorism. But the orders go much further: they impose restraints on people merely because there are reasonable grounds for suspecting that they are involved in terrorism. That is unacceptable, especially as the United Nations resolution imposes no such obligation.
The noble and learned Lord, Lord Brown of Eaton-under-Heywood, in his judgment in the Supreme Court, said at paragraph 199:
“To suspect something to be so is by no means to believe it to be so. It is to believe only that it may be so”.
The House should not be asked to fast-track legislation that will have a destructive effect on the lives of people without the Minister being able even to say that he believes on reasonable grounds that the persons concerned are involved in terrorism.
Perhaps I may also ask the Minister about the retrospective effect of the Bill. He mentioned that Clause 2 has a retrospective effect, back to 4 February, to protect the interests of the banks. However, as I understand it, the Bill has no retrospective effect for the period before 4 February. That means, I assume, that someone whose funds were frozen last year and who asked the bank to release the funds on 27 January—the date when the Supreme Court handed down its substantive judgment—would have a good claim against the bank for damages. Will the Minister please clarify whether my understanding is correct, because I do not understand the point in distinguishing in this temporary Bill between what occurred on 3 February and what occurred on 4 February?
I also suggest that 31 July 2010 would be a much more appropriate date for the termination of this legislation, even allowing for the intervention of a general election. The date of 31 December in Clause 1 gives a strong impression to your Lordships that the Government are content to rush through this Bill and then relax, with the pressure off, rather than, as should be the case, ensuring that the substantive measures receive full debate as soon as possible.
Later today, the House will of course approve the Bill. But I ask noble Lords to remember the wise words of Mr Justice Frankfurter in the United States Supreme Court in 1950, that,
“the safeguards of liberty have frequently been forged in controversies involving not very nice people”—
or, in the context of this Bill, people who the Secretary of State has reasonable grounds for suspecting to be not very nice.
The noble Lord is obviously more familiar with the judgment than I am, but am I right in thinking that the noble and learned Lord, Lord Brown, was the only one of their Lordships to take the point about the difference between suspecting and believing? I think he was alone.
Other justices took the same point. Indeed, it was fundamental to the judgment because the United Nations resolution did not allow for action against those who were merely suspected of being involved in terrorism. Therefore, the United Nations Act was not a lawful instrument for the making of the orders.
My Lords, we are faced with a difficult situation, as the noble Lords, Lord Pannick and Lord Myners, said. I would like to express my appreciation of the way in which the noble Lord, Lord Myners, introduced the Bill, and of the difficult situation in which the Government find themselves. There is no doubt that statutory instruments are extremely useful if you wish to do something quickly. The speed with which the legislation was introduced after the Security Council resolutions were passed is commendable. The problem with legislation that proceeds in that way is that it is by no means as secure as primary legislation. Indeed, primary legislation in our country is so secure that no court can overturn it, except possibly the court in Luxembourg in cases where it is supposed to contravene European law.
The important difference is between primary legislation and secondary legislation. As the noble Lord, Lord Pannick, said—I shall not repeat what he said on this point—the Supreme Court decided unanimously that the two orders that it quashed went beyond the empowerment that the United Nations Act 1946 gave for the purpose of implementing United Nations Security Council resolutions because the reasonable suspicion basis was not included in that resolution.
That has another effect. So far as I know, the United Nations has not found it necessary to pass resolutions requiring member states to introduce legislation dealing with people against whom there is only reasonable suspicion, so these orders were without the authority of a United Nations Security Council resolution. That does not mean that, after a broad and careful assessment of the situation, the Government might not think that, because of our special circumstances, it was necessary to have legislation that went beyond the United Nations resolutions. I think I am right in saying that New Zealand and Australia took the view that that was necessary and passed primary legislation. We did not do that and have stayed with secondary legislation that enables one to take action very quickly but in which, in this case, Parliament was not involved because there was no need for a negative or affirmation resolution procedure.
The difficulty with that is that the legislation is nothing like as secure as primary legislation, and in due course the Supreme Court, having examined this with considerable care, came to the conclusion that these orders were beyond the powers conferred by the Act of 1946 and therefore should be quashed. That has the effect of making them null and void from the time they were originally passed. They have no authority whatsoever.
This was a situation of very grave difficulty for the Government if, as I assume, they believed that there was a serious risk to this country arising from people against whom they had no more than a reasonable suspicion. On that basis, it was necessary to take immediate action. My original thought, when I read of this occurrence, was that we have a range of anti-terrorism legislation which has been passed by Parliament over a number of years. It is quite a patchwork. Therefore, I wondered why it would not be possible to resort to one or other of these pieces of legislation to deal with this sudden difficulty. The answer to that is contained in the speech that the Exchequer Secretary made to the other place yesterday. She said:
“Let me deal with a point raised by the hon. Member for Twickenham”—
that is Dr Cable of the Liberal Democrats—
“Why do we not use other existing counter-terrorism legislation? It has been suggested that counter-terrorism legislation is already in place, and that we should use those powers rather than introducing asset freezing. We have a comprehensive framework to counter financing of terrorism, but none of the other legislation replicates the effects of the asset-freezing regime under the terrorism orders in its preventive nature and in its ability to restrict suspected terrorists' access to the financial system. Furthermore, no other legislation contains such a comprehensive range of prohibitions on third parties' making funds available to terrorist suspects, such prohibitions being essential to preventing terrorists from circumventing the restrictions and accessing funds.”—[Official Report, Commons, 8/2/10; cols. 697-98.]
That immediately shows that there was a huge hole in the primary legislation system for dealing with terrorism on the basis of the nature of the threats which the Government believe to exist.
We are going to deal with this today on the basis of this Bill, but I would venture to humbly suggest to the Government, and to any other Government who may have responsibility in the future, that it is vital that the counterterrorism legislation, which is important, should be primary legislation, even if one has to take secondary legislation in order to get quick action. It should be followed up by primary legislation.
Secondly, it is amazing, looking at the patchwork of counterterrorism legislation that we have had, that it was not appreciated that this risk existed. I can understand that we are all fallible—at least, that is the general view—and that this kind of loophole or difficulty may be overlooked. However, it is extremely important, in the light of what has happened, that the whole pattern of counterterrorism legislation should be examined to see that, in all its aspects, it is reasonably secure and fit for purpose in what is a fundamental protection for our citizens.
The Bill is temporary—there is argument about how temporary it should be—and the Government have indicated that they will replace it with primary legislation. I venture to think that that would be a superb opportunity for considering the whole range of anti-terrorism legislation, which has been introduced piecemeal, so that we have a comprehensive system that will work in all circumstances, so far as we can see. As my noble friend Lord King has noted, there is a rather difficult grey area between terrorism and serious crime, and the provisions for seizing assets from serious crime are extremely complicated, as I think anyone who has tried to operate them will agree. I know that the Government have other work to do, but this may be a good opportunity to consider whether these two systems could profitably be linked together.
My Lords, I start on a positive note by thanking the Government for keeping these Benches informed at the end of last week of what they were proposing—not, of course, that we on these Benches would have started from here—and for the command paper with the draft full Bill, which has provided some material for amendments, which we will discuss later. I should say to the noble Baroness, Lady Noakes, that some of them are relevant for now.
Like the noble and learned Lord, Lord Mackay, I very much appreciated the Minister’s introduction, although I would have appreciated it even more if I had been able to take it away and read it before responding to it. However, here end the compliments.
I put on record our thanks to JUSTICE and Liberty for their briefings. Second-hand compliments are often the most credible. One of my colleagues who questioned me about the Bill yesterday had read the briefing material as soon as it arrived, and the organisations should take that as a compliment.
Nothing that is said from these Benches should be taken as our opposing proper measures to stop funding getting to terrorist groups or as our resisting our international obligations. However, we detect the Government’s air of panic to which other noble Lords have referred. We, too, asked: why such a rush? The judgment was made at the end of last month, and a supplementary judgment was made when the Supreme Court refused to grant a stay on 4 February, but the case did not start this year. I accept that the High Court order to quash the relevant orders was superseded by the Court of Appeal, but it was made in April 2008, so the Government were clearly on notice, as the noble Baroness put it, of the issue, and, as the noble Lord, Lord Pannick, said, they have failed to heed warnings for a considerable period.
In the Supreme Court judgment, the noble and learned Lord, Lord Mance, expressed,
“concern about the development and continuation over the years of a patchwork”—
a word used by noble Lords this afternoon—
“of over-lapping anti-terrorism measures, some receiving Parliamentary scrutiny, others simply the result of executive action”.
As noble Lords have said, we have had a great deal of terrorism legislation and criminal, serious organised crime legislation. Speaking as a lay person in this, I find it difficult to believe that terrorism is not serious organised crime.
If the Acts of 2000 and 2001, which were used against the Icelandic banks, and 2008 did not cover the issue—the Government take that view but there is a dispute about this—why did they not make them? Even if the Government thought that Orders in Council were adequate, such important provisions, with such an impact, should have been brought into primary legislation. I follow the noble and learned Lord, although not as eloquently or no doubt as technically correct, in saying that the answer is not that an Order in Council is the usual way to go. Later today, there will be amendments from these Benches to seek to apply some existing primary legislation for the interim period.
As has been said, only small sums are currently frozen. Although I accept that it is not necessarily expensive to carry out an act of terrorism, the issue of proportionality obviously arises. It is right to protect the banks which are caught in the middle. But if an individual who is subject to freezing took proceedings to get his money back, it would not be dealt with overnight. That would, in effect, allow a little more time for the Government to take this in a rather more measured way. In any event—I think that I read this in the same way as the noble Lord, Lord Pannick—the rights of individuals against the Treasury are preserved. Taking legislation a little more slowly would simply extend by a small amount the period in respect of which an individual might claim. Having made that point, I welcome the fact that those rights are preserved.
We are unpersuaded of the need for emergency—or, as it is now perhaps a little euphemistically known, fast-track—legislation. But the House of Commons passed this Bill and it is clear that by tomorrow morning we will have a new Act of Parliament; so I do not want to spend much more time on this aspect.
The Government have been hauled over the coals by the Supreme Court for bypassing Parliament and now the use of emergency legislation is sought to overturn that judgment. Much as we might object to this, our task is to make the legislation more palatable. I hope that our amendments will help to achieve that end.
I said that it was right to protect the banks which have been caught in the middle. But that is not as important as protecting the citizens in the face of disproportionate interference with their human rights in ways not required by the UN resolutions. The terms “remorseless”, “devastating”, “draconian” and “paralysing” are used to describe the conditions imposed on those who are merely suspected—these are the Supreme Court’s adjectives and have been used by other noble Lords today. No evidence is required and there is no possibility of judicial challenge.
It is important that permanent legislation is scrutinised thoroughly. We would support pre-legislative scrutiny perhaps by a Joint Committee of the two Houses or some other bespoke procedure. There is no reason why one should not design a procedure for this unusual circumstance. But it is far from clear that, even with a general election intervening, it is necessary to wait for as long as the end of this year. It certainly is clear that the asset-freezing regime to which an individual is made subject should itself be subject to supervision by the courts. Such orders should not just be made by the Executive. To quote the noble and learned Lord, Lord Mance, again, he said that the wording of UN resolution 1373,
“does not suggest that the Security Council had in mind ‘reasonable suspicion’ as a sufficient basis for an indefinite freeze”.
The 2001 Act has the test of “reasonable belief”. However, the Government come nowhere near evidence in the Bill, although I heard what the Minister had to say. Furthermore, promoting a Bill with no judicial oversight when a person is designated and no appeal—in other words, no judicial oversight at the beginning and no appeal at the end—and no appeal in respect of the licence terms that might apply is something that we find offensive; that would not be the wrong word. The Minister referred to judicial review and said, I think, that it was not a light touch. I believe that it is the wrong touch for this situation. It is about process and as described it accepts the premise on which the original order was made. That of course is one of the matters about which we complain.
It is of great importance that the orders are themselves proportionate, but their impact has been described as “very burdensome” on all members of the designated person’s family. The impact on normal family life is remorseless and can be devastating. Noble Lords have heard of some of the restrictions. The wife of one respondent could not even receive welfare benefits until the regime was relaxed. It was what amounted to an invasion of privacy of a wife who was not a listed person. Solicitors have reported to the Supreme Court the break-up of the marriages of some of the individuals concerned. Although the Minister covered some of this in his opening speech, I want to ask particularly about what is routinely licensed. What is the approach and how are the needs of the whole family assessed? Indeed, how are their representations heard? Incorporating some sort of minimal level would be right, and I would say too that it goes against every principle that the actions of providing money to fund a challenge to an order or legally to represent a designated person should be an offence. That is itself offensive. The noble Lord mentioned legal aid. I am a little perplexed because it is difficult to imagine that someone subject to one of these orders would have the funds not to require legal aid. As we have seen in the draft longer Bill, the Government consider that periodic reports from the Treasury and an independent review of the process would be proper, so why not import those here?
This is an emergency largely of the Government’s own making. The Minister referred to human rights legislation and has made a statement under the Human Rights Act that the Bill complies with the Act. Can he confirm that it complies only because the Human Rights Act and the European Convention on Human Rights do not apply? The UN charter trumps them both. As I understand it, the Supreme Court thought that as the Al-Jedda case is still continuing, that precluded it from considering the human rights position. The Minister quoted the noble and learned Lord, Lord Mance, who said that he was not taking a final view.
It is with the greatest reluctance that we see before us legislation that amounts to control orders by another name. Liberal Democrats in the Commons made it clear what they thought by voting against Clause 1— the guts of the Bill. We will do our best later today to ensure that the legislation that emerges is appropriate and not excessive. I can certainly assure the noble Lord, Lord Pannick, that no magic wand will be waved from these Benches.
My Lords, I apologise for not being here for the first part of the debate, but I was taking part in important discussions in the Joint Committee on Human Rights appertaining to another issue, and I had to be there. As has just been mentioned by the noble Baroness, Lady Hamwee, the noble Lord, Lord Myners, states on the front of the Bill that nothing in the Bill is incompatible with the European Convention on Human Rights. How do the Government know that? The noble and learned Lord, Lord Hope of Craighead, suggested that the JCHR could have looked at it, but we have not looked at it. For the Government to say that the legislation is compatible with the ECHR without even subjecting it to parliamentary scrutiny is, I regret to say, fairly disgraceful. Obviously the Bill has got to go through, but with my human rights hat on, I must raise the strongest objection to how it is being done. This rush and panic reflect the Government’s track record of totally disregarding the liberties of the subject, about which some of us feel very strongly.
My Lords, this has been a stimulating debate, one that I approached with considerable trepidation given the contribution we could expect from Members of the House with great experience in matters of the law.
As the whole House recognises, the threat to the UK today from international terrorism is very real and significant. Terrorists need financing to be able to carry out attacks, the costs of which, as we have seen, do not have to be great. Terrorists also need financing to maintain their infrastructure; for training, equipment and recruitment, and to promote their ideology. The capabilities of terrorist groups are severely constrained without access to funds.
The asset-freezing regime, implemented in good faith under Orders in Council, has proved over the years to be a valuable tool for disrupting and preventing terrorist financing. The Supreme Court ruled that the Terrorism (United Nations Measures) Order 2006 and the Al-Qaida and Taliban (United Nations Measures) Order 2006, implemented in good faith, were beyond the scope of the power provided by Section 1 of the United Nations Act 1946 and quashed both orders. This had effect from 4 February.
National security and public protection continue to be an absolute priority for the Government. Our aim is to prevent a gap in the asset-freezing regime and ensure that suspected terrorist funds cannot be diverted and used for terrorist purposes, and that suspected terrorists do not get free access to the UK’s financial system.
That is why this legislation is being moved today. We considered it necessary to the UK’s national security to act swiftly to restore the asset freezing on a temporary basis under primary legislation, while we introduce permanent legislation with time for Parliament to fully scrutinise our proposals in great detail.
I welcome the many points made by Members of the House. I will deal first with the points raised by the noble Baroness, Lady Noakes. The noble Baroness kindly offered support for the intention of the legislation, and we welcome and greatly appreciate that. At the same time, the noble Baroness quite correctly lost no opportunity to point out what she regarded as the Government’s failings, which led us to have to introduce this legislation on a fast-track basis. No doubt there were warnings which could have led many to believe that primary legislation should have been introduced from 2001. The noble Baroness referred to the work produced by the noble Lord, Lord Newton, in 2003 in that respect; and also, as the noble and learned Lord, Lord Mackay of Clashfern, referred to, the actions taken in primary legislation in New Zealand and Australia.
However, I remind your Lordships’ House that the Government were acting in good faith and under advice that it was correct and proper to rely on Section 1 of the United Nations Act 1946. We cannot rush to Parliament every time a piece of legislation goes through some form of court challenge, certainly not in a situation where the Court of Appeal found in favour of the line that the Government had taken. However, the judgment from the Supreme Court required us to take the necessary action to protect the country and our people from the risk of terrorism facilitated by the use of financial assets and access to the financial system, while at the same time putting in place detailed legislation that can be subject to intensive scrutiny as it makes its way through the House.
The noble Baroness is correct in observing that the decision of the Supreme Court to reject a stay in respect of its decision led us to require urgent action. The Supreme Court in its judgment directs us towards the need for fairer scrutiny, which is precisely what we are going to achieve by the process of putting forward two pieces of primary legislation—one to be adopted through the fast-track mechanism and the other through the very detailed scrutiny that this House and others will apply to the legislation, as we wrestle with reconciling the need to preserve security against the risk of terrorism while not encroaching unreasonably or disproportionately on individual freedom and rights, which we regard as of the highest possible importance. The noble Baroness in her various questions demonstrated why we need a very serious debate and scrutiny of the permanent legislation, which is precisely what we plan to ensure.
The noble Lord, Lord Pannick, referred to the undoubted urgency to validate orders and asked why the Joint Committee on Human Rights and the Constitution Committee had been circumvented. The House will be aware that the answer is simply the lack of time. The Bill was introduced only on Friday, and the Joint Committee on Human Rights does not meet until tomorrow, and the same applies to the Constitution Committee. Both committees will have a very full role to play in scrutinising our permanent Bill, and we very much welcome that.
The noble Baroness asked why we were not using the Anti-terrorism, Crime and Security Act 2001. The answer was provided largely from her own Benches by the intervention from the noble and learned Lord, Lord Mackay of Clashfern, in referring to the answer given in the other place yesterday by the Exchequer Secretary to Dr Cable. I might respond also to another point that the noble and learned Lord, Lord Mackay, made, relating to what he described as the patchwork of legislation. There is much to commend his observation that we should at an appropriate moment review the myriad pieces of legislation which deal with terrorism—to go back to the earlier intervention in my opening speech from the noble Lord, Lord King—to satisfy ourselves that the interface with other forms of legislation, particularly those relating to serious organised crime, is looked at in its totality to ensure that they are comprehensive and complete and that there are no inconsistencies or gaps. I have had the opportunity already to discuss this matter with my noble and learned friend the Attorney-General. It is a matter on which we will no doubt reflect—but we can rest assured without any doubt that the permanent legislation that we propose to follow this temporary Bill will receive very close scrutiny.
The noble Baroness asked why we did not simply amend the Anti-terrorism, Crime and Security Act 2001. The Act covers a wide range of threats but is primarily aimed at countering threats from overseas and is framed appropriately. Amending it to allow for a meaningful terrorist asset-freezing regime that could be used to tackle threats within the UK would substantially change the nature of the Act, and we judge that this would not be an efficient way of addressing our particular concerns.
I will go back to answer some more points made by the noble Lord, Lord Pannick. He expressed concern about the speed with which the Bill is being rushed through. I fully sympathise with his comments, and I think everybody on the government Benches and elsewhere in the House would rather we never had to use fast-track processes. However, the House also recognises that this is not necessarily a case, as the noble Baroness, Lady Hamwee, suggested, of a hint of panic; rather we are acting expeditiously and with appropriate urgency in the light of developments. We are not, of course, asking noble Lords to accept permanent asset-freezing legislation on such a fast-track basis. This Bill simply restores the existing regime for a temporary period to provide time for Parliament to consider permanent legislation more fully.
Concern was also raised about our use of reasonable suspicion tests, and whether this exceeds our international obligations under United Nations Security Council Resolution 1373. I accept that UNSCR 1373 does not spell out precisely that action should be taken on the basis of reasonable suspicion. However, it is clearly intended to be preventive, and the international Financial Action Task Force has made it clear that, in its reasonable view, suspicion is a proper standard for implementing UNSCR 1373. I suggest to your Lordships’ House that this is also an area where one operates within the framework of UN thinking but according to the particular circumstances as they are perceived to apply in one’s own territory. I am afraid we know from very painful and tragic experience that the United Kingdom is a country in which the threat of terrorism is particularly pronounced, as indicated by my right honourable friend’s decision recently to raise the security level. That ability to form a judgment as to the particular circumstances that will apply to our situation in this country, within the framework of 1373, is a reasonable way of proceeding.
The noble Lord, Lord Pannick, also said that he was a little puzzled as to why Clause 2 gives retrospection to the banks only back to 4 February, and raised the question of what would happen if banks were to be sued for having maintained frozen accounts on 27 January, after the first Supreme Court judgment. We believe that retrospection should be used only where absolutely necessary, especially in a fast-track Bill. The reason we do not provide banks with retrospective cover predating 4 February in this Bill is that the Supreme Court judgment did not take effect until 4 February. Prior to that date, the banks were therefore in a position where they could reasonably argue that they properly thought they had a valid legal base to freeze terrorist assets. The noble Lord also expressed concerns about why we—
I hear what the Minister says on retrospection. Am I right in thinking, as the noble and learned Lord, Lord Mackay, indicated, that as a result of the Supreme Court decision, these orders have been null ab initio—from the very beginning? Therefore, previously, if a person failed to comply with a prohibition or obligation—prior to 27 January, for example—they might have been guilty of a crime. However, is the Minister saying that no crime will have been committed if a person failed to comply with a prohibition or obligation under these orders prior to 4 February, or even 27 January?
I thank the noble Lord, Lord Wallace, for his intervention. I will no doubt reflect on that question while I complete my answers to the noble Lord, Lord Pannick. With assistance, I might provide him with the accurate and precise answer that his question justifies, and which I know that he would expect. As I think I said, we abhor retrospection—particularly in a fast-track Bill—and would only seek to use it where we believed that the arguments for so doing were compelling.
The noble Lord, Lord Pannick, also raised the issue of the length of the sunset clause. The noble Baroness, Lady Hamwee, also mentioned that, and preferences were expressed for an earlier date. That will no doubt receive our attention during the Committee stage, if noble Lords so wish. We believe that 31 December is the right deadline to allow sufficient time for pre-legislative and parliamentary scrutiny. We also believe that our existing regime is tried, tested and fit for purpose, that it has appropriate human rights safeguards already in place, and that it can reasonably continue in operation until the end of the year and until we are able to introduce permanent legislation.
As I am sure the noble Lord, Lord Pannick, would appreciate, 31 December is the absolute deadline. We will seek to bring this legislation forward and to have it debated by the House—and passed into legislation, if that is the wish of Parliament—well before 31 December. As must already be clear from this excellent Second Reading debate, there are significant issues that will require debate when we come to the substantive measure.
I do not have a date for Second Reading now, but I will certainly use my good offices to encourage that it is brought forward as soon as possible and as soon as it is compatible with good pre-legislative scrutiny. As the details of the Bill are already available, that scrutiny process has already commenced within an informal structure. Having reflected carefully on the question from the noble Lord, Lord Wallace, I can now advise him and the House that the orders are void. There are therefore no offences to prosecute; and, in any event, no prosecutions have been brought. I trust that that answers his question.
I thought that there was an old convention in this House that nobody should seek to anticipate the Queen’s Speech. With respect to the Minister’s response to the noble Lord, Lord Pannick, he seemed to be anticipating somebody else’s Queen’s Speech.
The parliamentary experience of the noble Lord, Lord King, once again shines forth for the benefit of the whole House, and my own inexperience is visible to all. However, I think that I said words to the effect of, “if it were left to me” or, “I would use my own efforts”. Far be it for someone as humble as me to anticipate the content of the Queen’s Speech. I am grateful to the noble Lord for correcting me if I seemed presumptious in that respect.
The noble Baroness, Lady Hamwee, made a very thoughtful contribution. I am sure that we will see much more of the logic behind her arguments displayed in Committee. In my opening comments I endeavoured to address some of the issues that will be raised by the amendments, but no doubt she will reflect on whether I have provided an adequate response or whether she still wishes those amendments to be placed before the Committee. I heard what she said about judicial review but I emphasise that it is not a light touch. It is a serious challenge and we should not disregard its powerful protection against abuse of privilege by the Executive.
The noble Baroness, Lady Hamwee, asked about the basis of individual need. The Treasury carefully evaluates, and it has certainly sought to ensure that its understanding of the needs of individuals is properly taken into consideration in the permitted licensing arrangements.
I go back to the question raised by the noble and learned Lord, Lord Lloyd of Berwick, in respect of the amounts of money frozen. The 2006 order was quashed on 4 February. The 2001 and 2009 orders are still in force but are at risk of being quashed on the same grounds as the 2006 order. As regards frozen funds, all £150,000 remains frozen; £135,000 under the 2001 and 2009 orders, because they remain in force, and £16,500 under the 2006 order because we are giving the banks retrospective legal cover in this Bill.
The noble Baroness, Lady Hamwee, also asked about a Section 19 statement based on the ECHR not applying. I advise her that we do not rely on the al-Jedda judgment. As regards Section 19 certification, we believe that the Bill is fully compliant with human rights requirements. I re-emphasise that I absolutely agree with the noble and learned Lord, Lord Mackay of Clashfern, about the importance of primary legislation. With hindsight, we wish that we had not relied on the powers in the United Nations Act 1946, but we are now somewhat belatedly seeking to rectify that with primary legislation.
I think that I have covered most of the points raised. I must emphasise again that these are times of severe threat to our national security. We cannot afford to fail to take the necessary steps to prevent terrorists raising and using funds for terrorist purposes. Without the primary legislation before this House, we would leave gaps in our defences which people who intend serious harm to the British public would be able to exploit. At the same time, the Bill will provide Parliament with the time needed to consider and debate the permanent legislation in full. I therefore commend the Bill to the House.
Bill read a second time and committed to a Committee of the Whole House.