Terrorist Asset-Freezing etc. Bill [Lords]

If we assume that the legislation will receive Royal Assent, it will stand. However, clearly, all terrorist legislation is kept under review and it would be wrong to prejudge the outcome of any other court case. We have taken forward the best form of the legislation, which was, as the right hon. Gentleman knows, based on the previous Government's proposals. The Bill reflects case law as it stands. Despite the approach we have taken on reasonable belief, the Bill will not result in the Treasury making decisions where it thinks it is more likely than not a person is not involved in terrorism. The point is that the decision maker should believe, from a careful assessment of what may well be a complicated intelligence picture, that a person is involved in terrorism. The threshold of reasonable belief for a decision is one used in many contexts, including in decisions made about terrorism, such as under the Anti-terrorism, Crime and Security Act 2001 and under schedule 7 to the Counter-Terrorism Act 2008. The courts are then asked on an appeal or review to determine whether there are reasonable grounds for that belief. That is the right test. It provides an assurance that a proper burden is placed on those seeking to impose a designation but, at the same time, it enables action to be taken to protect national security when needed. Let me move on to amendment 3, which, as the hon. Member for Cambridge pointed out, reflects the report by the Joint Committee on Human Rights. I understand that the amendment would ensure that individuals are sufficiently informed of the reasons for their designation at the point their assets are frozen in order to enable them to mount an effective challenge. As I stated in Committee, the Government do not believe it is necessary to include such an obligation in the Bill because the JCHR's proposal was intended only to ensure that the Treasury complies with the basic administrative law principle of giving reasons for such decisions. It is the Government's view that administrative law principles apply regardless of whether a duty is specified in this legislation. Writing such an obligation into the Bill is therefore unnecessary. I think that that was the commitment the hon. Gentleman was seeking. Amendments 5 and 11 were considered in the other place and in Committee. It is worth reminding the House that the Prime Minister announced in July that the Government will review the whole matter of the use of sensitive material in judicial proceedings and will issue a Green Paper next year. We expect the Green Paper to be published in the summer. The Government do not consider it appropriate to pre-empt it, which we would certainly be doing if we were to accept amendment 5. Let me consider the amendment in detail. It seeks to create a new subsection within section 67 of the Counter-Terrorism Act 2008, which provides for the content of court rules about disclosure in financial restrictions proceedings and which will apply to court rules made in relation to challenges to decisions under the Bill. The amendment would place a requirement for the court rules, which are to be made initially by the Lord Chancellor for England and Wales and Northern Ireland, to ensure that the Treasury provides sufficient open disclosure to enable the designated person to give effective instructions to the special advocate. That form of words is based on the European Court of Human Rights judgment in the case of A, which was applied by the House of Lords in the case of AF and others to the stringent control orders that were before it. The effect of the amendment would therefore be to apply ““AF No. 3”” principles to challenges to final designations. I reassure the hon. Member for Cambridge that persons designated by the Treasury will have the full protections afforded them under article 6 of the European convention on human rights. Section 67(6) of the 2008 Act states:"““Nothing in this section, or in the rules of court made under it, is to be read as requiring the court to act in a manner inconsistent with article 6 of the Human Rights Convention.””" It is therefore absolutely clear that article 6 rights apply in full to asset freezing. However, the Government do not accept that ““AF and others”” principles automatically apply to asset freezing. The application of this judgment to asset freezing has not yet been determined by the courts. The courts have determined that ““AF and others”” principles apply to the stringent control orders before them in that case and also to the financial restrictions under the Counter-Terrorism Act 2008. However, the courts have not determined that ““AF and others”” principles apply to asset-freezing cases, and it would be wrong to say that legally there is no room for doubt on this. As I said in Committee, in our view ““AF No. 3”” principles do not apply to asset freezing because asset freezes are not as significant in their human rights impact as stringent control orders can be, nor are they as wide-ranging in their financial and economic impacts as decisions to impose financial restrictions under the 2008 Act. However, this is something that it is open to the courts to determine if the Government's position were to be challenged. Should the courts decide that ““AF and others”” principles apply to asset-freezing cases, any court rules that cut across this will be read down to ensure compatibility with the ruling. It would not be necessary to amend the legislation. I hope that hon. Members agree that it would not be right to prejudge such a determination by the court and require now the disclosure of sensitive information that could damage national security or the detection or prevention of crime. Doing so would clearly not be in the public interest. Let me return to my point about the Green Paper. It would also be wrong to adopt a piecemeal approach to this important issue. The issue of special advocates and the use of intelligence material clearly cuts across a number of areas. If we try to address these important issues ad hoc in individual pieces of legislation, we risk ending up with different requirements in different pieces of legislation.