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Lord Bassam of Brighton: Perhaps I may deal, first, with the comments of the noble Lord, Lord Lester. I listened with great care to what he had to say. I shall read Hansard very carefully as a consequence. I fully respect and understand the points he makes, certainly in relation to human rights and the operation of this appeal mechanism. We must have careful regard to all of those issues. We may well want to reflect on them some more.
As I understand the amendments, they introduce in effect a new right of appeal additional to what we consider to be the valuable appeal arrangements already proposed in the Bill. Our argument is that this addition is unnecessary. I shall explain the procedure as we have designed it. Under the Bill, as is the case under the existing legislation, the Secretary of State may proscribe organisations which are concerned in terrorism. Once Parliament has given its approval, subject to the affirmative resolution procedure, the proscription regime takes effect. That regime includes not only the membership offences in Clauses 11 to 13 and the cash at borders powers in Clauses 24 to 31 but also the terrorist property provision in Clauses 14 to 23 and with them the arrangements for restraint and forfeiture orders in Schedule 4.
If a person thinks that an organisation is wrongly proscribed, the first step is to apply, as is understood, for deproscription. He may be able to present new information that was not available when the initial decision was taken, or he may have information which shows that an organisation which was at one time concerned in terrorism and was properly proscribed is no longer concerned in terrorism and should consequently be deproscribed. The Secretary of State will then look again at the case and may decide on deproscription at that stage. If, however, the Secretary of State refuses to deproscribe, the person can appeal against that decision to the proscribed organisations appeal commission. If the commission determines in his favour, it can make an order and the effect of the order is that the Secretary of State must lay a deproscription order or deproscribe using the urgency procedure. If it is deproscribed following such an order, not only do the offences cease to take effect but
We have always recognised that proscription is a very heavy-handed power. We believe that this procedure provides an important safeguard against its misuse by the Secretary of State. However, we also believe that the additional procedure proposed by the noble Lord's amendments would go beyond the needs of a safeguard and would be detrimental to the effective operation of the proscription regime itself.
Perhaps I may explain why we think the organisation must first apply for deproscription rather than being able to go straight to the proscribed organisations appeal commission to appeal the initial decision to proscribe. First, there is the genuine possibility that the Secretary of State may agree to deproscribe the organisation. That would avoid the need for what could be a lengthy and costly hearing before the proscribed organisations appeal commission. So it cuts out that unnecessary layer. Moreover, where an organisation has been proscribed for some time, an appeal against the decision to proscribe will not produce the right result. It could be that the initial decision to proscribe was lawful when it was made but that the situation had subsequently changed, either because the organisation had ceased to be concerned in terrorism or because the balance of factors to be taken into account in determining proscription--
Lord Goodhart: I am grateful to the Minister for giving way. Presumably, there would be a time limit within which an appeal could be made against the original proscription order. In that case it is very unlikely that in that relatively short interval, which might well be 14 or 28 days at the most, the nature of the organisation would have changed.
Lord Bassam of Brighton: That might be the case, yes. I accept the point. However, we believe that it is right to begin the process in every case with an application to the Secretary of State. The Secretary of State will be required to determine applications within a time specified in regulations. Under the current draft, the proposal is that that would be 90 days. Where he refuses, the case will have to reach the commission before very long.
Perhaps I may explain why it is our policy that the organisation should remain proscribed until the final disposal or determination. At Second Reading the noble Lord, Lord Goodhart, drew attention to this point and described it, as he did earlier, as conviction first and trial afterwards. That is not the right analogy. Proscribing an organisation is not like convicting a person. It is a powerful deterrent, not an offence in itself. That is an essential part of the consideration. The noble Lord suggests that the proscription order should not take effect until the end of the appeal process. The Government do not believe that that would work. Most obviously, under the noble Lord's
A further objection to the amendment is that, as I indicated at Second Reading, the noble Lord wishes to preserve the powers to freeze the resources of proscribed organisations. The new clause will not achieve that because subsection (2) applies only to cash at borders. In fact, the most powerful freezing provisions are the restraint orders in Schedule 4, which are inextricably bound up with the terrorist property offences in Clauses 15 to 18. Even if the proposal were redrafted to take that into account, I do not see the logic of the Government saying "You can go on being members of the organisation until the end of the appeal process, but we will freeze your assets now just in case we win". We believe that the only tenable position is that set out in the Bill whereby an organisation is either proscribed or it is not.
I recognise all of the sensitivities that have been raised by the noble Lord in moving the amendment. However, when one looks at the practicalities of the situation, I think that the amendments require further thought. I suggest that the noble Lord withdraws the amendment.
Lord Avebury: As the Minister described the procedure, the Secretary of State may proscribe the organisation and once Parliament gives its approval that proscription comes into effect. He is of course right in so far as concerns Clause 122(3), which provides that any order made under Clause 3 is subject to affirmative resolution by Parliament. There will then be a breathing space during which the organisation will know that proscription is coming and would be able to take precautions so as not to commit any of the offences outlined in Clauses 14 to 23, in particular those related to soliciting money or disposing of property.
However, perhaps I may also draw the Committee's attention to Clause 122(4). That allows the Secretary of State not to go through the affirmative resolution procedure but to declare that the matter is one of urgency so that proscription can come into effect immediately. That means that the Secretary of State could declare the matter urgent, proscribe an organisation at 10 o'clock in the morning and, from that point onwards, the members would be committing the offences specified in the Bill, even though they would not know that such an order had been made. There is no requirement on the Secretary of State, if he declares that the matter is urgent, to notify the organisation that it has been proscribed.
I do not think that the Committee will agree that someone who has no way of knowing that a proscription order had been made could be committing an offence under one of the provisions in Clauses 14 to 23. Surely this cannot be the intention of the Government?
I believe that the Minister should think again about this part of the provisions. If the suggestion of my noble friend were to be accepted, then the organisation would have a right of appeal against a proscription order whether it was made by affirmative resolution or by the urgency procedures laid down in Clause 122(4). The difficulty would then be removed. I think that the Minister will somehow have to satisfy the Committee that people will not be put into the position of committing offences of which they could not have had any knowledge.
Lord Avebury: Perhaps I may reply to that comment. The point is not whether he is a terrorist, but whether he commits one of the offences laid down in Clauses 14 to 23 which arise only when the organisation is proscribed.
I shall return to the example I gave earlier in the debate; namely, that of the Liberation Tigers of Tamil Eelam. I believe that I have made it clear that I have no sympathy whatever with that organisation. The Government would be right to take action to stop the activities of that particular terrorist organisation, which has brought such misery to the people of Sri Lanka. However, my point is this. The Secretary of State can make an order proscribing the LTTE at 10 o'clock in the morning. Someone in that organisation might continue to solicit money from its members for the purposes of the organisation--it is always declared that such donations are for the welfare of the people in the Tamil north rather than for terrorist purposes, but it is known that the money is somehow diverted into the military activities of the LTTE. Notwithstanding my abhorrence of the acts of violence committed by the organisation, if the Secretary of State makes an urgent decision to ban the organisation, its members should not be made liable for prosecution for something which they could not know had become a criminal offence by reason of that decision to invoke the urgent procedures laid down in Clause 122(4).
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