HL Deb 06 December 2001 vol 629 cc1036-62

9.22 p.m.

Consideration of amendments on Report resumed.

Clause 34 [Certificate that Convention does not apply]:

Lord Dholakia moved Amendment No. 34: Leave out Clause 34. The noble Lord said: My Lords, in moving this amendment, I shall speak also to Amendment No. 35.

I raised my concerns about Clause 34 at Second Reading. It is a matter of concern that we are trying to some extent to bypass the refugee convention. We have supported that convention since 1951 and the Government have yet to explain why such draconian measures are necessary.

There is no disputing the fact that the UNHCR and the UK Government share common ground on the importance of the 1951 convention as an international instrument that is precisely framed to provide protection for those who need it while ensuring the exclusion of those who do not deserve it. That has been the practice to date, and it has served us fairly well.

The point at issue is that every aspect of the case should be known and considered by SIAC. Furthermore, examination within the asylum process should ensure that the final decision to exclude, with all of its potentially serious implications, takes full account of the competing nature of potential prosecution and the seriousness of the grounds for exclusion.

The international nature of the protection regime means that participating states have a legitimate interest in knowing how the decision to exclude, rather than to grant asylum, has been arrived at. That is of considerable importance when excluded cases are removed to another country.

The stated purpose of the clause is to allow the Home Secretary to certify people who are suspected of terrorism as being either undeserving or outside the scope of the 1951 refugee convention. So long as such a certificate remains in force SIAC would not be able to consider that person's asylum claim.

Certificates issued under Clause 33 will state that a person is excluded from refugee status under Article 1(F) of the refugee convention (persons considered not to be deserving of international protection) or can be returned under Article 33(2) on national security. However, SIAC will be prevented from examining substantive asylum claims. Under this clause SIAC will be able to decide only on whether the certificate was properly made. It is difficult to see how it is possible to make a proper judgment about whether someone should be excluded under Article 1(F) or Article 33(2) without considering his or her whole story in the form of a substantive asylum application. Only through such a full consideration can people be safely excluded from the 1951 refugee convention.

It is unclear why the provision is deemed necessary. SIAC was established in 1977 precisely to consider appeals by people, including asylum seekers, being removed on grounds of national security. Under existing powers, SIAC simultaneously considers the substantive asylum claim and evidence that the applicant is a threat to national security. In cases where national security considerations are present, it is able to access intelligence information in a way that does not compromise sources and then make a determination on an asylum or immigration claim.

It is worth noting that only three cases have ever been referred to SIAC. We can see no justification, including on grounds of national security and efficiency, for the provision to limit SIAC's consideration of such cases only to the issue of the Home Secretary's certificate. That is why we suggest that there should be a full substantive interview to decide the asylum claims and only then a decision on whether to exclude on the basis of Article 1(F) or Article 33(2). The call for an integrated and comprehensive approach is also the view of the UNHCR. All asylum applications should be considered fully and on their own merits before any decision is taken.

I believe that the system of international refugee protection, enshrined in Article 14 of the Universal Declaration of Human Rights and embodied in the 1951 refugee convention, would be seriously undermined if individual states were able to pick and choose which asylum applications should be considered. We need an explanation from the Minister of why the clause is necessary when there are adequate safeguards under Article 1(F)(b). In view of the seriousness of the issue and the consequences of an incorrect decision, the application of any exclusion clause should continue to be individually assessed, based on all available evidence and conform to basic standards of fairness and justice.

With their asylum policy already in administrative shambles, the Government are generating further procedures which are a blot on the rights and liberties of the individual so clearly prescribed in the refugee convention.

I asked the UNHCR to cite me some case studies on how the clause would be applied. I have been given an interesting case study of an outspoken campaigner on women's rights who lives in a repressive regime with a poor human rights record. It is well documented that torture is routinely used in its prisons. He is the founder and director of a small human rights charity which, contrary to government legislation, utilises financial donations from a western European state. When that is discovered he is tried and sentenced to 20 years' imprisonment on charges of corruption and endangering state security and is not allowed legal representation. His conviction has been denounced by a human rights group. He seeks asylum in the United Kingdom. What happens? Under existing procedures all aspects of the case would be examined with a view to determining whether the applicant fulfils the criteria for refugee status. Facts indicating the relevance of Article 1(F) issues would emerge in the course of a comprehensive fact-finding process. At the point of decision a complex range of factors would be carefully weighed. These would include whether the threat of individualised persecution was grave enough to offset the seriousness of the charges against the applicant.

The interplay between persecution and prosecution would be looked at and the laws of the country would be set against international human rights standards. Asylum would be granted if, notwithstanding the applicant's alleged crime, he is deemed to deserve international protection. Under Clause 34 as it stands, by contrast it would appear that this applicant would he automatically excluded and the asylum claim dismissed solely on the ground that he committed crimes in his own country.

I now deal with Clause 35. We require better clarity here. Can the Minister confirm that it is not his intention that this clause in the Bill will not lay down a rule of construction applicable to all asylum cases? If it does then the issues raised take on even more importance. The clause removes the requirement to balance the gravity of exclusion grounds with the gravity of the consequences of return.

In circumstances where exclusion from the refugee convention is being considered, this clause seeks to prevent any consideration of the gravity of persecution a person has suffered, or would suffer, if returned to his or her own country. There is some doubt as to the purpose and scope of this clause. It is unclear whether its scope is limited to Clause 33 on certification or whether it is freestanding.

As a signatory to the refugee convention the UK has a legal obligation to fully consider all asylum applications on their merits. This clause threatens at a fundamental level our commitment in that regard. Only the consideration of the full facts of a case can lead to a decision which is sound and which does not risk the grave consequences of removing a person to face persecution.

The SIAC is equipped to consider such matters including evidence from the intelligence services. This clause runs counter to the UNHCR handbook on the interpretation of the refugee convention. It states that in applying the exclusion clause in the refugee convention, it is also necessary to strike a balance [between] the nature of the offence presumed to have been committed by the applicant and the degree of persecution feared". The reasons for exclusion under Article 1(F) and Article 33(2) are not limited to terrorism. For example, they also exclude the commission of a serious, non-political crime outside the country of refuge prior to an asylum seeker's admission to the country. These convictions may have been politically motivated in the absence of a fair judicial process. The Government must clarify the purpose of the clause and respond to the concern that it also affects people that it does not suspect of terrorism.

I wonder whether there is some serious confusion between Clauses 34 and 35. I understand that these clauses were one clause. They were split into two clauses for the sake of clarity only. Will the Government confirm that Clause 35 is not freestanding and only an aid to the construction of Clause 34? We need to have a proper balance between maintaining national security while protecting basic liberty. The draconian powers sought by the Secretary of State are unnecessary and undermine the fundamental right to seek asylum.

We already know how easy it is to generate hostility towards genuine asylum seekers. There is a danger that they will soon he equated with potential terrorists. That is precisely the opposite of what the Government intend. The danger is that it will create a situation in which asylum seekers and members of ethnic minorities will face a heightened risk of social exclusion, racial attacks and harassment. There is enough evidence to confirm that. I beg to move.

9.30 p.m.

The Lord Bishop of Portsmouth

My Lords, I am grateful for the opportunity tonight to have this debate after last Thursday night. I believe it was Ibsen who wrote that no one should put on their best trousers when going out to do battle for freedom and truth. Although I he condition of the trousers I am wearing at the moment may not be visible, I fear that on this particular clause hangs much of the balance of applying freedom and truth to the very complex issues addressed by this Bill. We have had many manifestations of those complexities so far.

Clause 34 would prevent SIAC from looking at asylum claims when it should and would deprive those against whom it is directed from any kind of status as asylum seekers. To put it bluntly, this clause not only ties the hands of SIAC but also gags the appellants. I believe that it should be removed. In my view, and in the view of my colleagues, it is an over-reaction. It does not sit easily with our democratic traditions and I am concerned that the Government appear so willing to pay such a high price to achieve what I believe to be comparatively little.

It appears to me that Clause 35 is as unsatisfactory as Clause 34. According to this clause, any court faced with asylum claims involving serious crimes cannot in certain circumstances consider issues relating to persecution or well-founded fear. That is my understanding. It appears to be a re-interpretation of the Geneva Convention of 1951. It prevents the whole picture from being considered.

Article 1(F) and Article 33(2) appear to provide exactly what is needed and no more. Article 33(2) has its own safeguards and ensures that criminals are properly identified. In the view of these Benches, these clauses are unnecessary and misguided.

Lord Avebury

My Lords, I support the amendment moved by my noble friend. I draw attention to those parts of the clause that the amendment seeks to delete that reinforce the remarks made by the right reverend Prelate. The commission has only two options. Once the Secretary of State has issued a certificate, the commission has to decide only whether it agrees with the statements made by the Secretary of State in support of the certificate and, if not, it quashes the decision or action against which the asylum appeal is brought. If the commission agrees with the statements, it must dismiss the asylum application. As the right reverend Prelate said, that means that the applicant is never entitled to a substantive hearing on his application for asylum.

It seems to me that Clause 34(6) gives the Secretary of State an unlimited power to make a new decision, following an adverse decision by SIAC. If the Secretary of State does not succeed in convincing SIAC that the statements that he has made in support of the certificate are true, he can refuse the individual's application on any other ground that comes into his head. That is how I read subsection (6).

Furthermore, the original application that was put on ice while SIAC considered the certificate, is then treated as undecided for an indefinite period following a ruling by SIAC against the Secretary of State, while the Secretary of State determines whether to make a new decision. There is no question of autre fois acquit in such matters. First, the Secretary of State fails in his certificate before SIAC and then he can take an indefinite time to produce a new refusal on totally different grounds. It seems to me that that is entirely contrary to natural justice.

In considering what is being attempted here, the articles cover a far wider range of circumstances than terrorism. I shall confine my attention to Article 1(F) because Article 33 applies rather different criteria than deciding whether a person having been granted asylum should be protected from refoulement. Therefore, I would consider that it is inappropriate in the context of a decision on whether to grant asylum in the first place. That stage has not yet been reached. Article 1(F), as has been said, provides that the convention shall not apply to any person who has been convicted of a serious non-political crime in a country other than the United Kingdom.

The UNHCR handbook, to which my noble friend Lord Dholakia has already made an indirect reference, on the interpretation of the convention makes it clear that, in applying the exclusion clause [1(F)] it is … necessary to strike a balance between the nature of the offence presumed to be committed by the applicant and the degree of persecution feared". In connection with that, I ask the Minister whether a conviction in another country is to be taken as conclusive? Obviously, it is not at the moment. It will depend very much on the legal system which prevails in the country where the conviction was secured and the question of proportionality, which has already been referred to, whether the applicant has a fair trial or whether the defence that he committed was outweighed by the degree of persecution that he feared. None of those considerations can be dealt with by SIAC since it has to decide only on the truth or otherwise of the certificate with which the Secretary of State presents it.

So the Secretary of State comes along and says, "This person has been convicted of such and such an offence in another country". If that is true it makes no difference what the quality is of the legal system in that country and whether or not the offence committed should have been counterbalanced by the degree of fear which that person experienced.

My noble friend gave a hypothetical and very good example which he obtained from UNHCR. I shall quote a real life example. I draw your Lordships' attention to a very disturbing case taking place at the moment in Russia. It is the retrial of Grigory Pasko, a journalist. He is charged before the Court of the Russian Pacific Fleet in Vladivostok on charges of spying. The ingredient of the offence was that in September 1997 Mr Pasko attended a meeting of the Military Council of the Pacific Fleet in order to cover it for his newspaper, Boyevaya Vaktha. He took some notes for possible later use in an article.

According to the indictment, Mr Pasko kept the notes at home. They were confiscated by the police on 20th November 1997. The prosecution claimed, without presenting any evidence, that the notes contained state secrets and that Mr Pasko had transferred the notes to Japan.

Suppose that he was convicted of this very serious offence of spying. By some means he then escaped from Russia. He presented himself at Dover and asked for asylum. He would have a conviction, assuming that that is the way that it goes, and I hope that it does not. The Secretary of State would be perfectly entitled to sign a certificate and say to SIAC that this person had been excluded from consideration from asylum in this country by one of the subparagraphs of Article 1(F).

Many other examples might spring to mind. We were earlier talking about Zimbabwe. Everyone knows that the judicial system in Zimbabwe has been seriously undermined by President Mugabe, and that it would be quite difficult in certain circumstances to get justice before the courts in that country. Someone comes here from Zimbabwe, having been a member of the opposition and convicted in the courts of an offence in connection with an election rally and asks for asylum. The Secretary of State certifies that he was convicted in Harare of causing disorder at an election meeting. He is automatically barred from any further consideration. The substantive case for his application for asylum cannot be considered.

Your Lordships could develop other examples. But we have said enough to show that this is an extraordinarily dangerous course. I hope that, having done that, we shall, unlike on other occasions, convince the Minister that the Government should think again. There has been precious little of that today—or, indeed during the Bill's previous stages. I hope that, on this matter at least, the Minister will do the sensible thing and, if he is not satisfied with the amendment, return with one that removes those dangerous powers from the Bill.

9.45 p.m.

Lord Rooker

My Lords, I shall do my best to answer some of the points raised, but I am clearly not going to convince noble Lords who give every impression that they do not think that Articles 1(F) or 33(2) should exist. That is the thrust of most of the speeches to which I have just listened. The fact is that there are international treaties and obligations that some people—I stress, some people—exploit, which sends out all the wrong messages. Those provisions are there in international treaties; we will not abuse the situation.

I draw noble Lords' attention to United Nations Security Council Resolution 1373, passed on 28th September, which required states to, take appropriate measures in conformity with the relevant provisions of national and international law, including international standards of human rights, for the purpose of ensuring that the asylum-seeker has not planned, facilitated or participated in the commission of terrorist acts". I intend to meet noble Lords on one point, which has been legitimately made. I shall come to that in a moment.

Why do we want the clauses in the Bill? They send out a clear message that we will not tolerate people whose actions clearly exclude them from the protection of the convention. We are not rewriting the refugee convention; the provision is already there. No one wants to talk about that; people will talk only about the positive provisions for refugees with a well-founded belief. No one ever refers to the fact—there is no press comment and no speeches are made on it—that parts of the convention do not apply to certain people because they put themselves outside it.

The noble Lord may shake his head, but the provision would not be there if it were not for the fact that when the convention was drawn up it was envisaged that some people would by their own actions put themselves outside its protection. All that we are doing is drawing attention to the fact that we are not prepared to have people abusing our asylum system when they have put themselves outside the convention's protection. How we operate that system is important.

Some noble Lords have argued that the provisions are detrimental to the standing of the convention. I do not agree. It has been suggested that it is not possible to come to a view about whether Articles 1(F) or 33(2) apply, except in the context of considering the whole asylum claim. We think that concern misplaced. In considering whether Article 1, for example, was relevant, we would consider any relevant information.

For example, if there were grounds for believing that a person was involved in terrorist activities and that person sought to argue that his involvement had been unwitting or had been a marginal involvement which he had undertaken only as a result of coercion, we would consider those points as part of the assessment of the claim and whether to issue a certificate. We would not just take ill-considered decisions on exclusion without hearing the person's case. Nothing in the clause is intended to produce such an approach. I must say that noble Lords are reading more into the clause than is there.

Others may be concerned that by focusing on the exclusion aspects, we will ignore or pay less attention to humanitarian factors. It is true, of course, that we would not consider whether a person had a well-founded fear of persecution under the refugee convention—a point to which I shall return in the debate on Clause 35. But we would give proper consideration to factors put forward by the applicant as to why he should not be removed from the United Kingdom. That would include any European Convention on Human Rights issues raised.

Others would argue that it is pointless treating asylum claims of certain individuals in that way when their removal may not be possible because of considerations such as Article 3 of the ECHR. That has already been argued outside debate on the Bill. It has been argued in this House since I have been a Member that if we cannot remove people we should simply weigh them in, accept them and not bother about anything else. We are not prepared to do that. Just because we know we cannot remove them does not mean to say that we should not go through a full claim so that their status is made clear. Different countries are involved and times change. Removal may not be possible in some decades, but it may be possible in others. People may be able to return home when the situation changes.

We do not therefore agree that that is a reason to take no action as regards the asylum claim. Refugee status is an important one and we want to protect the integrity of the convention by making proper use of its exclusion provisions. We are talking about the exclusion provisions in the convention, not those in the Bill. They already exist and have done so for decades.

We are sending out that clear message. It is not intended to be abusive. Noble Lords have given two examples in terms of consideration but I cannot comment on them from the Dispatch Box. One is hypothetical and one is real. I accept that. However, the fact is that we are not merely going to say, "You have been convicted and therefore you are out with". We shall give proper consideration to the case before the certificate is issued. That may lead to the certificate not being issued.

Lord Avebury

My Lords, I am sorry to intervene. The noble Lord said that all these issues would have been considered before the certificate was issued. That is not stated on the face of the Bill and I am sure that he could go some way towards reassuring the House. Perhaps between now and Third Reading he can devise some words which would require the Secretary of State to go through all the considerations of proportionality which we have discussed prior to issuing the certificate.

Lord Rooker

My Lords, we are not in non-listening mode and every suggestion we can make sense of we will consider. I take it as axiomatic that those considerations will be in the mind of the Home Secretary before he issues the certificate. It is not a question merely of signing the certificate because someone says, "This person is not bona fide". We will look at the case. On the other hand, if there is anything we can do with the wording to meet that point if it is not implicit, we shall do so.

The Lord Bishop of Portsmouth

My Lords—

Lord Rooker

My Lords, I am not going to be able to get to Amendment No. 35 and I have got something good to say about it.

The Lord Bishop of Portsmouth

My Lords, I am sorry, carry on.

Lord Rooker

My Lords, I want only to comment en the point made by the noble Lord, Lord Dholakia. Clause 35 as drafted looks as though it is free-standing. There is nothing in it which directly connects it to Clause 34. As a lay person and not a lawyer—we have to take advice on these matters—I would be happier if it were connected to Clause 34 in an explicit way if that can be done. It is not our intention to abuse the legislation. We are examining it between now and Third Reading or before the Bill returns to the other place.

I do not believe that we can return to the original drafting of the clauses. They were separated for clarity, as the noble Lord, Lord Dholakia, said. However, if there is a way of connecting them which retains the policy objectives so that people can be assured that Clause 35 would not be abused—no one has said that but the implication is that if Clause 35 were free-standing it could be applied in other circumstances— we shall consider that. It is contained in the Bill for the reason which applies to all the other provisions. If we can find a way of tying Clause 35 into Clause 34 which does not cause us problems with policy objectives, we shall examine that. I had discussions with officials before the debate took place.

Furthermore, I reiterate the point I made about the concern expressed by the noble Lord, Lord Avebury. The rules and procedure under which the Home Secretary would issue a certificate would cover those points and if there were any way in which we could achieve additional clarification we would certainly consider it.

The Lord Bishop of Portsmouth

My Lords, I believe that all noble Lords are grateful to the Minister for his response to the debate thus far. Speaking also as a layman, the point at issue is that in the view of many noble Lords the House is dealing with rushed legislation which is not entirely clear. If the Minister can somehow meet some of the points raised in a way that draws Clauses 34 and 35 together and reassure noble Lords about how the legislation will be put into practice, it will go a long way to meet the concerns expressed so far.

Lord Rooker

My Lords, I can only reiterate what I have said. We are actively looking at one of the two points anyway, and, given the way the matter has been raised, we shall see whether we can do something about the other. It is not our intention to send out the wrong signals or to build Fortress Britain. Our aim is to ensure that the rules under which we implement the convention are not abused by others who have the kind of background that is implicit in what we have said.

Lord Dholakia

My Lords, I am grateful to the Minister. I should very much like consideration to be given to those two points. If the Minister can communicate with us before Third Reading it will give those noble Lords who disagree with him an opportunity to move the appropriate amendments. In the light of that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 35 [Construction]:

[Amendment No. 35 not moved.]

Clause 36 [Destruction of fingerprints]:

Lord Dholakia moved Amendment No. 36: Leave out Clause 36. The noble Lord said: My Lords, while we accept that in relation to asylum seekers suspected of involvement in terrorism the keeping of fingerprints may be justified, we do not accept that it is justified in relation to the 99 per cent of innocent refugees. Therefore, the clause should be restricted to those to which Clause 21 applies. I beg to move.

Lord Rooker

My Lords, I can only repeat that, while it may not apply to 99 per cent of cases, the provision allows for the retention for 10 years of certain fingerprints taken in asylum and immigration cases which were previously destroyed once the matter had been dealt with. Since 1993 all asylum seekers have been fingerprinted. The process is now digitalised and there is a good deal of technology involved in it. If an asylum seeker wins his case and becomes a refugee he is no longer an asylum seeker and his fingerprints will ordinarily be destroyed. If an individual fails to become a refugee his fingerprints are retained. Cases have arisen in which people have become refugees and reapplied as asylum seekers to create different identities with new passports and new social security numbers, for whatever reason.

As I believe I said at Second Reading, on my first visit to Croydon someone was picked up following an intervention. This clause is a precautionary measure and does not affect anyone. The power arises only if someone has already been fingerprinted under one identity and turns up to make another claim for asylum. It beggars belief but it happens. With the available technology, even a small number of cases can be prevented. For that reason, we believe that the clause should remain in the Bill.

Lord Dholakia

My Lords, the Minister gave that example on a previous occasion. The number of cases that we are talking about is very low. However, in view of the lateness of the hour, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 1 [Forfeiture of terrorist cash]:

Lord Kingsland

moved Amendment No. 37: Page 1, line 9, leave out "a magistrates' court" and insert "the High Court The noble Lord said: My Lords, I realise that we are operating under a fairly tight time schedule and so I shall speak only to those amendments that I consider to be of particular importance. As to the group of amendments led by Amendment No. 37, here we are concerned with the appropriate court in which to make an application for a restraint of cash order and, subsequently, a forfeiture order. We recognise the need for such a procedure. However, as I said in Committee, the magistrates would be faced with difficult questions of fact and law. We believe that the nature and complexity of those questions require the skills of a High Court Chancery judge. I beg to move.

10 p.m.

Lord Rooker

My Lords, I respect what was said by the noble Lord, Lord Kingsland, and so I, too, shall be brief. However, if I had realised that this matter would be raised again on Report, I would have asked all the Members of this House who are magistrates to be present at what is a fundamental attack on the competence of magistrates. I think that I should have said that the last time round.

Lord Kingsland

My Lords, I wonder whether the noble Lord would allow me to intervene.

Lord Carter

My Lords, I remind the noble Lord that we are at the Report stage.

Lord Kingsland

My Lords, perhaps I may say with enormous respect to the noble Lord the Government Chief Whip that I was very brief in my opening remarks. I simply want to say that one of the consequences of House of Lords reform is that very few active magistrates are left in your Lordships' House.

Lord McNally

My Lords, we are approaching the hour that I warned the noble Lord about some 12 hours ago.

Lord Rooker

My Lords, I want to support the magistrates because I have good friends who are magistrates. Further, I want to make the point that this is not a cheap exercise, for the reason that I shall give. Since 1991, in the drugs-related cash scheme, for which proceedings are always held in magistrates' courts, we have seen no evidence of any problems. No such problems have been adduced in the Chamber tonight. Indeed, last year some £4.5 million worth of drug-related cash was forfeited via the magistrates' courts. That is not a cheap point; £4.5 million worth of positive credit has been achieved by the work going on in the magistrates' courts.

The new provisions should assist the magistrates in determining whether cash sums represent the proceeds of terrorism. Previously magistrates would have needed to work that out for themselves. These matters are suitable for magistrates' courts because the issues at stake are generally straightforward. We think that moving the scheme to the High Court would undermine it. Further, as I said on the last occasion, it would increase the expense of running the scheme and might cause problems as regards meeting the 48-hour deadline for the first hearing.

I am sorry to be so negative in response to the noble Lord on this matter. However, the issues are the same and thus the reply must be the same.

Lord Kingsland

My Lords, I confirm the Minister's description of what he has said as "negative". I should like to say to noble Lords that I am a great supporter of the lay magistracy. Indeed, earlier this week I spent a considerable time supporting magistrates in a debate. Nevertheless, I believe that the complex financial issues that will be raised by the necessity to trace and subrogate will require a Chancery judge. If the Bill has a long life, the Government will need to reconsider the use of magistrates for this purpose. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 38 not moved.]

Schedule 1 [Forfeiture of terrorist cash]:

Lord Kingsland

moved Amendment No. 39: Page 75, line 11, at end insert "whether legal tender or not The noble Lord said: My Lords, Amendment No. 39 again raises issues connected with banknotes that are not regarded as legal tender, including counterfeit currency and, in particular, the question as to whether they come within the ambit of the Bill in relation to forfeiture, seizure and the detention of terrorist cash. The noble and learned Lord promised to return to these matters on Report.

I know that the noble Lord, Lord Williamson of Horton, is anxious to hear about the problems connected with German currency and that the noble Earl, Lord Mar and Kellie, wishes to address the matter of Scottish banknotes. I should also like to know whether the Minister has thought again about the wisdom of relying on the existing criminal law to deal with counterfeit money—does it really enjoy such expeditious and complete measures of control as the Government are proposing in the Bill?

As far Amendment No. 47 is concerned, I was puzzled by the Minister's response to this amendment at Committee stage. The amendment seeks to ensure that the civil procedure to forfeit cash cannot take place until, criminal proceedings have been concluded". We are of the view that an application for civil forfeiture should be made only after a determination in the related criminal proceedings. We do not believe that forfeiture without compensation is an appropriate remedy for someone who has acquired a sum of money innocently, and for consideration, even though that money had its origins in a terrorist act.

Amendment No. 52 concerns exceptional loss. It inquires about the circumstances in which it would be appropriate for a court to award compensation. In our view, if under paragraph 10(4) of Schedule 1, the applicant has suffered loss as a result of the detention of the cash", and the court is satisfied that it would be reasonable to award compensation, then compensation should be awarded.

The Minister said, by contrast, that the Bill was correct in stipulating that the circumstances should be exceptional. I was concerned by the way in which the Minister justified this provision. He said that authorised officers may be fearful of making seizure orders because they might be responsible for large pay-outs. As I said in Committee, I cannot accept that public officials would be influenced to behave in that way. I beg to move.

The Earl of Mar and Kellie

My Lords, I should like to add one or two comments in regard to Amendment No. 39, which has been prefaced as the "Scottish banknotes amendment". I remind the House that not only do banks in Scotland issue notes, but so do banks in Northern Ireland, in the bailiwicks of Guernsey and Jersey and in the Isle of Man. It would be sensible to clarify this issue now and avoid future arguments about the legitimacy of these currencies. They are acceptable tender but they are not legal tender, and it would be wrong for anyone to get the impression that they were safe homes for terrorist cash. The Minister promised to go away and think about the matter. I look forward to hearing what his thoughts came to.

Lord Rooker

My Lords, I am grateful for the opportunity to come back to these amendments. My answers in regard to Amendment No. 39 may sound the same, but they are a result of the consideration given—even in the time available—to some of the issues raised. This gives us an opportunity to have another think about the drafting of the Bill.

Amendment No. 39 takes into consideration the possibility of an authorised officer coming across counterfeit cash. The key objective is to take terrorist cash which is legal tender out of circulation. If the cash is not legal tender, there are other powers to deal with it. It probably is not much use to a terrorist anyway, so no particular purpose will be achieved by the amendment. If the cash was known to be counterfeit, it would be liable to seizure under the normal criminal law for the appropriate offence, whatever it may be.

Where the cash was not known to be counterfeit, it might be seized unwittingly in accordance with the Schedule 1 scheme, but, once it was discovered to be counterfeit, it would revert to being dealt with by other powers. We do not believe that there is any need for the cash seizure scheme to cover cash which is not legal tender because powers already exist to deal with such cash and to remove it from circulation. Scottish banknotes could be seized like any other currency and are covered by the definition of "cash" in paragraph (a).

The issue was raised of the European currencies that are soon to be redundant. The definition catches notes and coins if they have value as a current medium of exchange. It follows that at a certain point currencies converting to the euro will lose their value and will become collector's items only—one has only to go to the Travel Office in the Commons and look at the box in which coins are collected for charity. As collector's items only, they will not be seizable. The issue, therefore, is about alerting authorised officers to the dates on which the currencies lose their value. The dates are not all the same, which complicates matters. That is the only issue at stake—namely, the point at which the cash ceases to be legal tender. After that, it is not much use either to ourselves or to the terrorists.

Amendment No. 47 seeks to link the seizure of terrorist cash with criminal proceedings. The key point to remember is that this is a procedure for the forfeiture of terrorist cash which stands alone from the criminal proceedings. It is quite separate from the main thrust. It is about forfeiture only.

We are aware of the arguments advanced in Committee about linking seizure to Clause 1(1), setting out the circumstances under which the cash may be seized. But we do not see why this should mean that the procedures themselves should await the outcome of the criminal proceedings. The procedure for the seizure of cash stands on its own. We believe that that is by far the best way to operate it.

As regards Amendment No. 52, I note what noble Lords have said. Examples were given in Committee. Those whose cash is detained but not ultimately made the subject of forfeiture will already have been paid interest, because the cash will have been put in an interest-bearing account after a few hours. If their cash has not been put in an interest-bearing account, the person may be paid compensation in lieu of interest in accordance with the relevant paragraph in the schedule.

The amendment is concerned with the circumstances in which the additional compensation may be paid. We believe that it should be paid where the circumstances are "exceptional". In Committee, I gave the example of a business deal that could not be concluded, although the precise circumstances would be for the courts to determine.

I also indicated in Committee and prompted debate on the fact that a lower test for compensation may result in authorised officers being deterred from making seizures for fear of being responsible for large pay-outs. That is not an attack on public officials, nor does it seek to undermine them in their work. I suspect that police officers come across this kind of situation every day and have to decide whether to issue a caution. It depends on the circumstances.

In circumstances where the test may result in a larger claim—where the circumstances are on the margin—the officer may decide that it is not worth the risk for that reason if the test is lower. That might be an unwelcome side-effect of the amendment. I cannot give examples as I do not know whether records are kept on this matter; namely, on the decisions of Customs and other officers making inquiries and investigations on whether to use their statutory powers. They are all governed by the legislation. Much of it gives authorised officers a degree of discretion as to how to proceed. The officer is the person on the front line.

I cannot expand on the situation any more than I did in Committee. We have re-examined the issue, but we are satisfied that the provision in the Bill as drafted will operate efficiently.

Lord Kingsland

My Lords, I am deeply unsatisfied with the Minister's reply to all three amendments. I simply cannot understand why he is not delighted with Amendment No. 39 and with the expression, whether legal tender or not". It would solve, most elegantly, all the problems about which noble Lords have expressed concern.

It is clear that the provisions in the criminal law will not be as effective with respect to counterfeit money as they would be with the amendment that is proposed; and with great respect to the noble Lord, I do not think he answered the questions that were posed by the noble Lord, Lord Williamson, in Committee.

As far as the other two amendments are concerned, both of them are about the same issue—and that is making sure that innocent parties who find themselves in possession of funds that are connected with terrorism are properly compensated. In my respectful submission to the Minister, his arguments give no comfort to such persons. In the circumstances, however, I beg leave to withdraw my amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 40 to 52 not moved.]

10.15 p.m.

Lord Glentoran moved Amendment No. 53: After Clause 3, insert the following new clause— "OVERSEAS FUNDING FOR TERRORIST-RELATED POLITICAL PARTIES

  1. (1) No funding shall be permissible from outside the United Kingdom for any political party or organisation which the Secretary of State reasonably believes to be, or to be closely connected with, a terrorist organisation, or any of whose members are also members of a terrorist organisation.
  2. (2) Section 70 of the Political Parties, Elections and Referendums Act 2000 (c. 41) (special provision for Northern Ireland parties) shall cease to have effect.
  3. (3) Any order in force which has been made by the Secretary of State under section 70(1) of the Political Parties, Elections and Referendums Act 2000 prior to the coming into force of this Act and which has the effect of—
    1. (a) extending in relation to a Northern Ireland party the categories of permissible donors specified in section 54(2) of the Political Parties, Elections and Referendums Act 2000 (permissible donors), or
    2. (b) disapplying, in relation to a Northern Ireland party, any specified provisions of Part IV of the Political Parties, Elections and Referendums Act 2000 (control of donations to registered parties and their members etc.),
    shall cease to have effect on the commencement of this Act."
The noble Lord said: My Lords, I wish to speak to this amendment very briefly. I realise that the House is very short of time. Hence I will be brief. We on these benches have stood unequivocally behind the Prime Minister in the weeks since September 11th in his fight against terrorism, and we continue to do so. We also agree with him that one of the key weapons in the fight against terrorism is to choke off the international flow of funds to organisations which are terrorist organisations or which support such terrorist organisations.

Once more the House voted last week to remove from the Bill the artificial distinction between two types of terrorism, which we welcome. As the House well knows, terrorist organisations like the Real IRA and the Provisional IRA are closely linked to overseas terrorist organisations.

These amendments aim to end the exemption under the political parties Act and render impermissible any funding from outside the UK to terrorist or terrorist-related organisations. Surely the logic of this must be absolutely clear: that is the right course of action. There is no normality if Sinn Fein and Northern Ireland parties alone of all those in the United Kingdom are allowed to receive foreign funds.

As time is short, I make this statement. The arguments are very well understood. I sincerely hope that the Government will not reject this amendment. As I am sure that noble Lords on the Government Benches will know, I am pretty passionate about it and I believe, and those of us who take an interest in Northern Ireland believe, that this is a right, sensible and, in fact, the only road to go unless we are to follow the Mandelson road. I beg to move.

Lord Rooker

My Lords, I shall be brief. I hope that the noble Lord, Lord Glentoran, does not criticise me for this but, to be honest, this Bill is not a suitable vehicle for changing our electoral law. That is the reality. We have been criticised throughout for what—

Lord Glentoran

My Lords, I am sorry to interrupt but it is nothing to do with electoral law. It is to do with political parties' funding.

Lord Rooker

My Lords, that is elect oral law. It has got to be. Sometimes I have had a hard time in the last six days making the connection between crime, the funding of crime, the funding of terrorism and linking them all together. I cannot do it. I cannot link electoral law and electoral practices in the funding of political parties to this Bill. That just does not fit in this Bill. I have got nothing else to say about it.

Lord Glentoran

My Lords, I am sorry to hear the Minister's response and I apologise if I was a bit abrupt in my hurry to get the deal done. I beg leave to withdraw this amendment and reserve the right to bring it back at Third Reading.

Amendment, by leave, withdrawn.

Schedule 2 [Terrorist property: amendments]:

Lord Kingsland moved Amendment No. 54: Page 85, line 19, after "that" insert "each of the requirements for the making of the order is fulfilled The noble Lord said: My Lords, I shall speak also to Amendments Nos. 60, 62 and 64 in this group, which reflect my greatest concerns.

Amendment No. 60 deals with the matters that must be satisfied before a judge can make an account monitoring order. As I said in Committee, we believe that the judge should be satisfied not only that there are reasonable grounds for suspecting that the person specified in the application has committed a terrorist offence, but also that there are reasonable grounds for believing that the accounts information will be of substantial value to the investigators. The Minister replied that the grounds would not be unreasonable. En those circumstances, what possible objection could there be to accepting the amendment?

On Amendment No. 62, in Committee the Minister was reassuring on the appropriate level of protection for legal professional privilege. However, if I recall correctly, I asked him to reflect before Report on whether he felt that the Bill's silence on the point was sufficient protection in the context of the legislation, when many other rights normally accorded to litigants were being suspended or abandoned.

Amendment No. 64 concerns the offence of failing to disclose information relating to certain criminal activities under the Act. It would impose a duty on a person to disclose information that led him to suspect that another individual had committed a terrorist offence. We are perfectly content with the new offence; but, again, as I said in Committee, we see no point in imposing a duty to disclose certain information if it is already in the public domain. Moreover, I question whether the circumstances are appropriate for reversing the burden of proof. I beg to move.

Lord Rooker

My Lords, I shall do my best to separate out the amendments that the noble Lord has referred to specifically, because I do not want to digress. I hope that I get the information right on Amendment No. 60—if I do not, I shall take advice—because it is mixed up in my notes on the whole group.

Amendment No. 60 takes the wording from the production orders in paragraph 6 of Schedule 5 to the Terrorism Act 2000. It would introduce a higher threshold in that the account information must be likely to be of substantial value to the investigation. The difference in the threshold is justified on two bases. First, account monitoring orders are more closely connected with the financial orders, the provision for which is in the model for the requirements in the Bill. We think that it is right that the two orders should be available on a similar basis. Secondly, an account monitoring order will necessarily be more speculative than a production order. The aim of an account monitoring order is to find evidence of a transaction that has not yet happened, whereas a production order is focused on material that already exists or will soon exist. Therefore it is possible to be more specific about the value of the investigation material sought by way of a production order. We see great value to the police, the courts and financial institutions in framing the two powers in similar terms.

The difference between the Government's approach and that adopted by the noble Lord is essentially twofold. First, the court would not be able to make an order unless it was satisfied that there were reasonable grounds for suspecting the person specified of a terrorist offence. Secondly, the police would have to demonstrate that the information to be obtained would be of substantial value to the terrorist.

In the first case, there is an assumption that the person specified will be suspected of an offence. That may be true in the majority of cases, but it will not necessarily be so. The police may wish to obtain information relating to transactions on an account when the account holder—that is, the person specified—may well be innocent and may be being used by others. The amendment would preclude the use of the order in such cases. Even in those cases where the person specified is the suspect, the requirement to have reasonable grounds would preclude the use of this investigatory tool at an early stage in the investigation when it might not be possible at that point to establish such reasonable grounds.

Regarding the other two amendments which we debated in Committee, I had hoped that I had offered comfort to people who thought they might be in such a position. The amendments seek to provide that a person does not commit an offence by failing to disclose information which is already in the public domain. The Bill already provides that a person does not commit the offence if he has a reasonable excuse for failing to disclose. As I indicated in Committee, that would be capable of covering the case where a person believed the information to be so widely known it did not need to be passed to the police. The provision provides a way to assess whether that person would be relieved from his criminal liability; that is, was it reasonable of him to act as he did? That is the proper way to deal with what the amendment refers to as information "in the public domain".

The noble Lord talked in Committee about the reverse burden of proof and discussed the normal circumstances in which the courts are prepared to tolerate reverse burdens of proof. For the reasons stated, we do not believe that that argument is valid. There is a good defence set out in the legislation for people who genuinely believe that the relevant information is in the public domain. It would be very easy to make that defence in whatever circumstances anyone can think of. If someone is accused of withholding information, and he or she says they believed it to be in the public domain, they will be able to point to it, whether it is in the form of a transcript, press cutting, media monitoring or whatever. They will have evidence that it is in the public domain. Therefore, there will be a perfectly honourable defence to put before the courts in those circumstances.

Lord Kingsland

My Lords, I thank the Minister for his reply. I draw some comfort from the last point that he made. As to his response to the first amendment to which I referred, I shall look at it carefully and see whether it might be appropriate to bring it back at Third Reading. In the meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 55 to 64 not moved.]

Lord Kingsland moved Amendment No. 65: Page 91, line 8, at end insert—

  1. "(13A) If the first and second conditions are satisfied and the person concerned discloses the information or other matter in satisfaction of the third condition, that person shall not disclose that he has done so to the person whom he knows or suspects or has reasonable grounds for knowing or suspecting that he has committed an offence under any of sections 15 to 18.
  2. (13B) If a person discloses information or other matter in satisfaction of the third condition and does not inform the person whom he knows or suspects or has reasonable grounds for knowing or suspecting that he has committed an offence under any of sections 15 to 18 that he has done so, it shall be a defence in any civil or criminal proceedings that the person disclosing the information or other matter did not inform such other person that he had done so in order to comply with the restriction in subsection (13A)."
The noble Lord said: My Lords, this amendment seeks to ensure that a person who suspects another of committing an offence does not "tip off" that other person—to use the Minister's words in Committee—about the fact that the police have also been informed. The Minister believes that the answer to that lies in Section 18 of the Terrorism Act, which provides that it is an offence for a person to enter into, or become concerned in, an arrangement which facilitates the retention or control by another of terrorist property. In my submission, this is incorrect. Section 18 simply is not wide enough to encompass the circumstances to which I refer in the amendment. I beg to move.

Lord Rooker

My Lords, as I hope that I said in Committee, the amendment tabled by the noble Lord and the noble Baroness has a sensible aim. It seeks to ensure that a person who knows or suspects another of committing an offence does not "tip off" the other person about the fact that the police have been informed. The amendment provides protection to the person disclosing information to the police should civil or criminal proceedings be brought against him for doing so.

The first aim is already covered. As the noble Lord indicated that I said in Committee, it is covered by Section 18 of the Terrorism Act 2000 which provides that it is an offence for a person to enter into or become concerned in an arrangement which facilitates the retention or control by another of terrorist property. We genuinely believe that that meets the concerns behind the noble Lord's amendment.

The second aim is already provided for in new Section 21B, where a person discloses information to the police. The second part of the amendment is therefore unnecessary. In the light of that, I hope that the noble Lord will not press his amendment.

Lord Kingsland

My Lords, I am most grateful to the noble Lord for that response. I shall reflect on what he said. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

10.30 p.m.

Clause 4 [Power to make order]:

Lord Kingsland moved Amendment No. 66: Page 3, line 8, leave out "United Kingdom's economy (or part of it)" and insert "economy (or part of the economy) of the United Kingdom or a country or territory outside the United Kingdom". The noble Lord said: My Lords, in moving Amendment No. 66 I wish to speak also to Amendment No. 67. The argument here has already been made in Committee and, I am sure, is fresh in the Minister's memory. Why should this power be limited to protect the United Kingdom economy and United Kingdom nationals and residents? What about funds in the United Kingdom that are free for use in terrorist attacks aimed at the United States economy or United States residents? As I said in Committee, global terrorism needs to be tackled globally. We all know that the United States is the prime target for Al'Qaeda. Therefore, why cannot the Government take powers to freeze funds that are designed for terrorist use outside the United Kingdom?

So far as concerns Amendment No. 67 this amendment is similar to the one tabled by the noble Lord, Lord Goodhart, in Committee—we believe that the power to make an order must be constrained in some way, or, at least, to a greater extent than it is in the current draft of the Bill. As I said in Committee, it is not enough simply to show that the action about which a complaint is made will cause some damage to the United Kingdom economy. That is the purpose of the amendment. I beg to move.

Lord McIntosh of Haringey

My Lords, these are "pushmi-pullyu" amendments. They push in one direction and pull in another. They merely cancel each other out. I hope that Amendment No. 66, which is concerned with widening the conditions for freezing orders to include threats to other countries, recognises the fact that there are strong powers to impose sanctions unilaterally. They are designed to protect our national interests but they are not appropriate measures to counter threats to other countries.

The powers will be available where an attack aimed primarily at another state also affects the United Kingdom. That, of course, is the example of September 11th, which clearly affected both United Kingdom lives and the United Kingdom economy. Other powers are available to support states which face similar threats. We have continued to implement sanctions agreed by the United Nations or in the European Union. We have also laid an Order in Council to allow enforcement in the United Kingdom of forfeiture and restraint orders made in designated countries, to include the European Union and the G7 states. Therefore, the amendment seems to be unnecessary in the light of the international powers which are available.

On the other hand, Amendment No. 67 limits the conditions only to unlawful or intentional actions against the United Kingdom economy. In that case, we do need a broad and flexible power if we are to respond effectively to ever-changing threats to our national interests. We appreciate that the conditions of Clause

4 might also be met in situations where we would not wish to act; for example, where a foreign firm was damaging United Kingdom industry through legitimate trading activity. But here, of course, the overriding obligations of European and international law, the provisions of the European Convention on Human Rights and the requirements for extensive scrutiny of any order will ensure that the powers are not abused.

The proposed amendment would not contribute any additional safeguard and could hamper use of the power where it was entirely appropriate. The primary subjects of the freezing order would not be subject to UK law, begging the question against whose laws their actions would be judged unlawful. That is not resolved in the amendment.

We might wish to make an order even where there was no intention of damaging the economy. It is arguable whether even the attacks on the World Trade Centre fell into that category. The built-in safeguards will be more reliable than such a subjective test. The Treasury must base its decisions on a reasonable belief that the conditions are met. Orders are to be made by affirmative resolution.

Amendment No. 68 would widen the trigger to cover threats to persons rather than to the lives of UK nationals. We must ensure that the use of the powers is proportionate to their serious nature but the amendment would widen the power unacceptably. The current drafting will catch actions such as kidnapping or serious injury, where there would certainly be a threat to life even if the threat were not carried out. If we change the wording to cover less serious threats to persons, that would go beyond the purpose of the emergency measures. We would find ourselves dealing with much smaller offences—for which these draconian measures would not be appropriate. I hope that the amendments will not be pressed.

Lord Kingsland

My Lords, is the Minister saying that Amendment No. 66 is unnecessary because, in circumstances where there was an intention to damage the US economy, the Bill would fasten on the funds in any case?

Lord McIntosh of Haringey

My Lords, I am saying that we have other powers to support states that face similar threats. I gave the example of the sanctions agreed by the United Nations or the European Union and the powers we are getting to allow enforcement of forfeiture and restraint orders. We are not helpless in the face of threats to other states but powers under UK law should be confined to the United Kingdom.

Lord Kingsland

My Lords, I am surprised by that reply. After all, we are allies with the United States and have been close to them for the whole of the 20th century. Is it not government policy to take as stern a view of terrorist threats to the United States as to the United Kingdom? I accept entirely the Minister's observation that there are powers in other legislation.

Lord McIntosh of Haringey

My Lords, that is why we took the lead in implementing Article 5.

Lord Kingsland

My Lords, can those powers be effected as speedily—and are they as comprehensive as the powers in the Bill?

Lord McIntosh of Haringey

Yes, my Lords.

Lord Kingsland

My Lords, I shall take the Minister's word for that. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 67 and 68 not moved.]

Clause 5 [Contents of order]:

Lord Kingsland moved Amendment No. 69: Page 3, line 36, at end insert "in connection with the action referred to in section 4 The noble Lord said: My Lords, in the interests of the House, in concluding these proceedings by 11 o'clock, I shall address only Amendment No. 70. The Minister will recall that as being Amendment No. 42 in Committee and that in moving it, I spoke also to Amendments Nos. 43 and 44. The Minister replied: We all agree with the principle. Our view is that that is the effect of the current drafting read in accordance with the Interpretation Act 1978. However, we agree that the Bill should expressly provide that in making changes to freezing orders the Treasury must have a belief, as well as stating that it has a belief, that the relevant conditions are met, and that that belief should be reasonable. We shall table amendments on Report to meet that point".—[Official Report, 28/11/01; col. 358.] I thought at that stage that the Minister was referring to Amendment No. 42—now Amendment No. 70—as well as to the other two amendments. However, he made it clear later in Committee that that was not the case. I therefore return to Amendment No. 70. I ask the Minister, since I had not understood this in the context of his reply in Committee, why is he not prepared to accept the insertion of the word "reasonable" in the circumstances to which the amendment would give rise? I beg to move.

Lord McIntosh of Haringey

My Lords, the noble Lord, Lord Kingsland, is of course quite right to say that I gave an undertaking to introduce amendments on Report. They are Amendments Nos. 74 to 77. I then woke up a little late to the fact that we did not agree with Amendment No. 42, as it then was, and I dissociated myself from that amendment.

I spent many happy hours in opposition trying to insert the word "reasonably" into legislation, and I have spent many happy hours in government trying to resist its insertion into legislation. In either capacity, I have never really understood the basis on which parliamentary counsel sometimes thinks that it is reasonable to include "reasonable" and sometimes thinks that it is not. But I do my best.

Lord Carter

My Lords, which side is my noble friend on?

Lord McIntosh of Haringey

My Lords, I am against the amendment.

Paragraph 6 of Schedule 3 provides for a freezing order to require specified people, engaged in business in the regulated sector, to disclose any dealings with the subjects of the order. Disclosures are to be made to the Treasury as soon as is practicable. It is debatable whether the proposed amendment adds anything to the sense of the provision. We consider that "practicable" involves a clear test and we should oppose any further qualification. This is an occasion on which I understand what parliamentary counsel is doing.

The obligation can cover banks and other financial institutions engaging in activities that are already regulated in respect of money laundering. Disclosures can provide essential information for terrorist investigation. We consider the requirements laid on them in the schedule to be entirely consistent with the standards of due diligence that are expected of the regulated sector.

Lord McNally

My Lords, although I understand the way in which the noble Lord, Lord Kingsland, is sprinkling qualifications through the Bill, does the Minister agree that a change of attitude on the part of the regulated is needed? It is clear that our financial services industries have been used—often unknowingly—as part of the terrorist network. There has to be an end to what the police call wilful ignorance in handling these matters, and there has to be a change of psychology through the industries so that they are not used by terrorists in that way.

Lord McIntosh of Haringey

My Lords, I rather suspect that the amendments for which the noble Lord, Lord McNally, voted, and which were agreed to earlier this afternoon, give the lie to what he has just said. I rather suspect that by undesirably and damagingly limiting various parts of the Bill to explicit terrorist activities rather than to crimes that may assist terrorist activity, he has damaged the case that he is now reasonably making. The minor point that I am making on this minor amendment—I do not think that the noble Lord, Lord Kingsland, will be offended by that description—is that "practicable" is a perfectly good word and does not need to be qualified by the word "reasonable".

Lord McNally

My Lords, I should have known better than to proffer an olive branch to the Minister at a quarter to eleven; I should have known that he would hit me over the head with it!

10 45 p.m.

Lord Kingsland

My Lords, bearing in mind the doctrine of Pepper v. Hart, if the Minister does not think that "reasonably" adds anything to "practicable" I am content to beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 3 [Freezing orders]:

[Amendment No. 70 not moved.]

Clause 7 [Review of order]:

Lord Kingsland moved Amendment No. 71: Page 4, line 5, at end insert "and must revoke such freezing order if it ceases to have reasonable grounds to consider that the conditions set out in section 4 are fulfilled The noble Lord said: My Lords, as the Minister knows there appears to be no protection in the Bill as drafted against the Treasury letting a freezing order run for the full two years even if the reasons for it have fallen away. Amendment No. 71 requires the Treasury to lift the order when the conditions are no longer fulfilled. Therefore the victim of the order has some legal recourse if the Treasury fails to act.

The Minister responded in Committee but was not prepared to accept the amendment. I said: If the Treasury ceases to have reasonable grounds, in those circumstances, it is hard to imagine any conclusion that the Treasury could reach other than revocation. Perhaps the noble Lord would like to reflect further on this clause before he returns to your Lordships' House at Report stage". The Minister replied, I am glad to do that. I always reflect on these matters".—[Official Report, 28/11/01; col. 362.] I beg to move.

Lord McIntosh of Haringey

My Lords, what I did not say is that I tend to reflect at four o'clock in the morning when I suffer particularly from insomnia. It is not very productive and it has not been very productive on this occasion.

Amendment No. 71 provides that the Treasury must revoke an order when the conditions are no longer met. As drafted, the Bill includes a provision stating that the Treasury must keep a freezing order under review. This is a meaningful commitment. As I said in Committee, where there is no longer a need for a freezing order the Treasury will revoke it. Ongoing review will also provide a basis for amending an order where that is appropriate. But an obligation to revoke an order when the conditions in Clause 4 were no longer met could seriously reduce the effectiveness of the power. We can imagine situations where the original reasons for freezing funds no longer apply but there are other good grounds, which have arisen Knee the original order, for the order to remain in force.

For example, an overseas terrorist who was the subject of a freezing order might move to the United Kingdom. A freezing order cannot be made in respect of a UK terrorist. While often it would be appropriate to revoke the freezing order and use the UK criminal law to target that person, revocation of the order should not be an obligation.

However, we appreciate that this is a serious power. Freezing orders should not be permitted to stay on the statute book indefinitely. That is why we have taken the unusual step of providing for ongoing review by the Treasury with a freezing order lapsing automatically after two years. The order will also be open to judicial review on an ongoing basis. It is not right to say, as did the noble Lord, Lord Kingsland, that the victim has no legal redress.

Amendment No. 72 provides that the Treasury may renew an order. Again, we accept in principle that it may be appropriate to renew an order after the maximum period of two years is complete. Of course it must. But we would wish such a renewal to be subject to the same standards of parliamentary scrutiny as the original making of the order. There is nothing to prevent the Treasury replacing a freezing order under the current drafting. Amendment No. 72 is not only unnecessary; it would weaken parliamentary scrutiny.

Amendment No. 73—the noble Lord, Lord Kingsland, did not speak to it—is about publication in—the Gazette. There is no benefit in requiring orders in the Gazette. That would be a very unusual step. That is not the normal procedure with secondary legislation.

Under the Statutory Instruments Act 1946, all statutory instruments are sent immediately after being made to the Queen's Printer of Acts of Parliament to be printed and sold as soon as possible. As an operational matter—I made this point in debate in Committee—financial institutions are notified of the order and the requirement to freeze funds by a circular from the Bank of England. Surely, that is better than placing it in the Gazette, which is read only for very specific purposes.

Lord Kingsland

My Lords, I thank the Minister for his reply. I have not spoken to a number of amendments, as I said earlier, because of the time constraint. The wisdom of my approach is borne out by the clock.

I have one reflection on Amendment No. 71. Would the Minister agree that if the Treasury ceases to have reasonable grounds to continue to freeze funds, it is hard to imagine any conclusion that the Treasury could reach other than revocation?

Lord McIntosh of Haringey

My Lords, that could well be true, but that is not the point. The amendment imposes an obligation to revoke an order. As I understand the question, if the original reasons for freezing the funds no longer apply, we would have to revoke. I do not agree with that because there may be other good grounds which did not exist at the outset for an order to stay in force.

Lord Kingsland

My Lords, that is a most interesting response to my further question. My understanding of my amendment is that it would cover any grounds and not just the original grounds.

Lord McIntosh of Haringey

My Lords, we are in danger of getting into a Committee discussion and I should not do that. The amendment states, if it ceases to have reasonable grounds".

Lord Kingsland

My Lords, I would say, ceases to have any reasonable grounds". But we are on Report. I thank the Minister for his reply. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 8 [Duration of order]:

[Amendment No. 72 not moved.]

[Amendment No. 73 not moved.]

Clause 11 [Procedure for making certain amending orders]:

Lord McIntosh of Haringey moved Amendment No. 74: Page 5, line 24, leave out "further order states that the Treasury" and insert "Treasury reasonably". The noble Lord said: My Lords, in moving this amendment I shall speak also to Amendments Nos. 75, 76 and 77. It has been made clear in debates on previous amendments that we tabled these amendments in response to the proposals made at the Committee stage that the Treasury should be required to have a reasonable belief that the relevant conditions are met when amending a freezing order as well as when making it. I said that we agreed to that in principle and that is provided for in these four amendments. I beg to move.

On Question, amendment agreed to.

Lord McIntosh of Haringey moved Amendments Nos. 75 to 77: Page 5, line 26, at end insert "and the further order contains a statement of the Treasury's belief Page 5, line 34, leave out "further order states that the Treasury" and insert "Treasury reasonably Page 5, line 36, at end insert "and the further order contains a statement of the Treasury's belief".

On Question, amendments agreed to.

Lord McIntosh of Haringey

My Lords, I beg to move that consideration on Report be now adjourned.

Moved accordingly and, on Question, Motion agreed to.

House adjourned at six minutes before eleven o'clock.