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Article 26 of the 2009 order revokes the 2006 order, with savings only for current directions, and similar provisions in the 2006 order revoke the 2001 order. Therefore the 2009 order power is the only live direction-making power which the Treasury can legitimately use. I think that is the clarity which the noble Baroness wanted. The drafting makes that clear once you know that that is the only power. We think that matter has been covered. I thank the noble Baroness, first, for being so quick on the uptake and noticing that there might be a lacuna and, secondly, for helping us to try to close it. I can reassure her that there is nothing there to worry about.
at the end of Clause 1(3)(c). This deals with the degree of retrospection involved in this Bill, particularly in relation to criminal offences created by orders. That was raised during Second Reading by the noble Lord, Lord Wallace of Tankerness. I had already prepared this amendment for tabling and in view of the timing of this Committee stage I cannot check exactly what was said in Hansardso I apologise if I go over old ground, but I thought it wise to ensure that there is clarity on this point.
The effect of my amendment is to ensure that prohibitions and offences in the orders can apply only in relation to any acts after the Act comes into force. I know I do not need to recite to the House why retrospectivity in relation to criminal offences would be unacceptable.
It has been put to me by Justice, which has provided very helpful briefing, as other noble Lords have said, that the effect of the retrospective deeming contained in Clause 1(2), which subsection (3) expands on, is that the prohibitions referred to in paragraph (c) are similarly retrospective. I can also see that subsection (1) refers only to the period after the Act comes into force. If there is any scintilla of doubt or ambiguity about a matter as important as retrospectivity for criminal purposes, we must be quite clear in our resolve to remove that ambiguity. I hope that the Minister agrees with that. I beg to move.
Baroness Scotland of Asthal: I can reassure the noble Baroness that the amendment is unnecessary as Clause 1 already provides for this. The Bill does not provide for criminal liability for any acts or omissions
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Baroness Noakes: I thank the noble and learned Baroness for that. I thought that was what I heard during Second Reading this afternoon but, as I explained, I thought it wise to have another go to be absolutely clear. I beg leave to withdraw the amendment.
Baroness Hamwee: This amendment would replace the first clause of the Bill with a provision applying the relevant section of the Anti-terrorism, Crime and Security Act 2001 to the situation which this Bill addresses. We tabled this amendment because the Government said that the power in Section 4 of the 2001 Act to make freezing orders does not apply because the object of the order must be a foreign resident or a foreign country. It seemed to us that rather than the slightly crab-wise approach of this legislation, one could simply make it apply by leaving out the conditions relating to foreign residents and so on.
The 2001 Act has some important attributes. Some judicial oversight is already provided by the Act but it is perhaps limited in light of the discussions we have had already on the Bill. Under Section 63 of the Counter-Terrorism Act 2008, application to the High Court or to the Court of Session can be made in connection with any decision of the Treasury and in connection with its functions under the 2001 Act. In parenthesis, I ask the Minister-I have given notice of this and it is important-whether she can tell the Committee whether Section 63 of the Counter-Terrorism Act will apply to the Bill we are considering now when it is enacted. Section 63(1) refers to the UN terrorism orders, to Part 2 of the 2001 Act and to a schedule to the 2008 Act.
Under one paragraph of the schedule to the 2001 Act, regarding orders which can be applied, the Treasury must, if asked, give the reasons for including an individual
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Baroness Noakes: My Lords, I accept what the noble Baroness, Lady Hamwee, has said about the advantages of the 2001 Act compared with using the orders. On Second Reading, I asked why the 2001 Act was not used for terrorism purposes, if that is what it was put there for, and why it could not be used for this purpose. That said, I have some problems with the noble Baroness's amendment. Although it might set up a new regime going forward, I do not see how it copes with all those who are currently covered by the designations that have already been made under the existing orders. It seems to create a very severe problem. It may well be that, as a permanent solution to the problem, the noble Baroness's amendment has the core of a way forward, but in the context of dealing with the temporary problem caused by the Supreme Court's judgment, it seems to create more problems than it solves.
Lord Pannick: I respectfully agree with the noble Baroness's observations. Parliamentary approval was given to Section 4 of the 2001 Act, as I understand it, in relation primarily to foreign activities. I am concerned about the possible implications-I emphasise possible implications-of generally extending the scope of Section 4 so that it would apply to all domestic activities. That may have unfortunate implications and I would need some assurance that that was not the case before I could support this amendment.
Baroness Scotland of Asthal: My Lords, once again we have had an interesting debate that shows clearly why we need to do more work on these issues. We are very grateful to the noble Baroness, Lady Hamwee, for raising these issues. They foreshadow the sort of issues that we will have to think about and discuss in due course.
The Counter-Terrorism Act does apply to this Bill. The 2009 order is within the definition of the UN orders to which Section 63 of the Counter-Terrorism Act applies. I hope that clarifies that point. I certainly reassure the noble Baroness that all the comments made will be taken into consideration when we come to look at the final, full Bill. It gives us an indication of the sort of issues that are troubling Members of the House, and we will want to address those in due course. I hope the noble Baroness will feel that, having properly raised these issues, she is able to withdraw the amendment.
Baroness Hamwee: My Lords, this is not the first time in the proceedings on this Bill that that point has been made. We seem not to have had a proper answer from the Government. I take seriously the points that other noble Lords have made, but this amendment was tabled so that the Government could tell us something rather more substantive than, "It is because I say it is". I am not happy with such a response. We should be given more than that slightly Humpty Dumpty reply.
Baroness Scotland of Asthal: I am very happy to give the noble Baroness a short and pithy response if it assists her. However, I think that both the noble Baroness, Lady Noakes, and the noble Lord, Lord Pannick, have already identified some of the difficulties that the noble Baroness's proposal raises. To deal with those proposals properly would take some little time.
The provisions that the noble Baroness proposes would require the threat to have been from a Government or a person outside the United Kingdom. This would specifically get round the reason why the Act could not be used for domestic terrorism. However, even if it worked, it would mean designations on a reasonable belief basis, and we do not believe that that would be the right standard. Parliament would have to review the information relied on for a designation. It would require both Houses to approve designation within 28 days although many of our cases will have been charged or conducted on the basis of intelligence. In either instance, we could not disclose information of that sort.
There are very many issues. I say to the noble Baroness, with the greatest respect and understanding, that we are all trying to do the very best we can. However, the decision that was made by the Supreme Court was to enable Parliament to have sufficient time to discuss and debate these issues with a sense of decorum and propriety. I know that that is what the noble Baroness wants, and I know that that is what every person who has spoken in this debate wants. It is simply impossible for us to do justice to the issue which the noble Baroness wishes to raise in such a truncated process. I therefore invite her to think very carefully about the response that she has had both from the noble Lord, Lord Pannick, and the noble Baroness, Lady Noakes.
Baroness Hamwee: My Lords, the amendment does not seek to truncate the parliamentary process. We have already dealt with the sunset provision and my amendment would not alter that. It would merely put in place a different interim regime.
I did not sit through the proceedings on the 2001 legislation, but I find it difficult to believe that the Government allowed Parliament to ignore the kind of matters that the noble and learned Baroness has just raised. As regards freezing assets in respect of those who are subject to Section 4, surely that must have been considered and debated, and the Government must have been clear in their mind that all the corners had been covered.
Baroness Noakes: My Lords, I have not given notice that I wish to speak on whether Clause 2 should stand part of the Bill, but I have one small query that I hope the noble and learned Baroness will be able to answer. In Clause 2(2), we deal with things,
three orders had been effectively made. During the passage of the Bill in the other place, the Government tabled an amendment to Clause 1(2) to add additional orders relating to the Channel Islands, the Isle of Man and overseas territories. Why are the Government not
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Baroness Scotland of Asthal: I have to confess to the noble Baroness that having had intimate dealings with the Bill only today, I am not able to give her an immediate answer, save to say-I am thinking off the top of my head at the moment-that I do not think it is necessary. Clause 2 and its provisions are necessary to ensure that there is no gap in the UK's asset freezing regime caused by the quashing of the terrorism orders. The clause validates actions taken by any person, except the Treasury-a very important exception-to maintain existing asset freezes during the period between the court quashing the terrorism order on 4 February and this Bill receiving Royal Assent by providing that the orders will be treated as validly made, should their actions be questioned. It does not, and cannot, put them in the position where they have a legal obligation to freeze assets for this period.
My belief is that since the orders are focused on what has happened here, it is unlikely that any freezes have been made in the Channel Islands or the other places, so there is no need for retrospective cover. Therefore, retrospective cover for the banks is not required. Having thought about where we are, that is my construction. If I am wrong on any of that-I do not believe that I am-can I write to the noble Baroness and clarify the position? I do not think I am wrong because, to the best of my recollection, I saw no papers in relation to the Channel Islands or the other places that have been mentioned. That is confirmed by the note I have received. If it is wrong on mature reflection and correction, I will let the noble Baroness know.
Baroness Noakes: My Lords, I thank the noble and learned Baroness for that. Writing to me may not be a particularly good remedy for this particular circumstance. Can she check at the conclusion of this Committee stage and, if necessary, bring forward an amendment at Third Reading?
Baroness Scotland of Asthal: My Lords, I am very happy to do that. I am looking at the Box and I think my civil servants are confident that what I have told the Committee is right. I do not think that we are likely to get greater confirmation between now and Report. We have used our best endeavours to give the noble Baroness an accurate response.
Baroness Hamwee: The noble Baroness is right that a letter is inappropriate in these circumstances. I am sure that if the Government find that they should have referred to the other orders that the eagle-eyed noble Baroness spotted, they will have to do more than just write a letter about it. I am talking a little bit in case any further intelligence reaches the Attorney-General. It is entirely likely that in the circumstances we are debating, the Channel Islands, at any rate, would have featured in what has gone on over the past few years. If any correction needs to be made, as well as a further order, at least a Statement to the House would be required .
Baroness Scotland of Asthal: My Lords, I thank the noble Baroness for her elegant filibustering. I shall read the note out: "There are no existing freezes in the Isle of Man, the Channel Islands or the overseas territories, so no retrospective cover is needed. You were right". So there we are: Her Majesty's Attorney-General was correct.
(1) Within 28 days of the date of the coming into force of this Act, the Treasury must lay before Parliament a report about the exercise prior to that date of the powers conferred or purported to be conferred on him by the Orders referred to in section 1(2).
(a) the period beginning with the day on which this Act comes into force and ending with the last day of the third month during any part of which this Act has been in force;
(b) each succeeding period of three months.
Baroness Hamwee: I shall speak also to Amendment 9. The noble Baroness, Lady Noakes, has Amendment 11A in this group. My amendments are lifted directly from the draft full Bill, which is being published in the form of the Command Paper. They deal with reports to Parliament and independent review. If the Government think that these issues are appropriate for the fuller legislation and are measures that should be applied in future, why not now? The first of the amendments, Amendment 8, requires a report from the Treasury to Parliament on the exercise of the powers within 28 days and then on a three-monthly basis. The clause in the draft Bill refers to a report. That might bear a little expansion, and I have therefore added subsection (4), which gives some idea of what might be included in such a report. That is information regarding designations made, licences granted and proceedings taken for an offence. The noble Baroness's Amendment 11A requires a monthly report. My instinctive reaction is that that is a bit often and a bit of a heavy imposition, but I look forward to her arguments.
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