Fourth Standing Committee on Statutory Instruments, &c.


Thursday 2 March 1995


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The Committee consisted of the following Members:

Chairman: Mrs. Ann Winterton

Anderson, Ms Janet (Rossendale and Darwen)

Beith, Mr. A. J. (Berwick-upon-Tweed)

Bell, Mr. Stuart (Middlesbrough)

Campbell, Mrs. Anne (Cambridge)

Fox, Dr. Liam (Woodspring)

Gilbert, Dr. John (Dudley, East)

Horam, Mr. John (Orpington)

Hutton, Mr. John (Barrow and Furness)

Jackson, Mr. Robert (Wantage)

Kennedy, Mrs. Jane (Liverpool, Broadgreen)

Maclean, Mr. David (Minister of State, Home Office)

Mates, Mr. Michael (East Hampshire)

Michael, Mr. Alun (Cardiff, South and Penarth)Neubert, Sir Michael (Romford)

Rumbold, Dame Angela (Mitcham and Morden)

Shepherd, Mr. Colin (Hereford)

Spicer, Mr. Michael (Worcestershire, South)

Thomason, Mr. Roy (Bromsgrove)

Mr. D. W. N. Doig, Committee Clerk

3 Fourth Standing Committee on Statutory Instruments, &c. Thursday 2 March 1995

[MRS. ANN WINTERTON in the Chair]

Draft Prevention of Terrorism (Temporary Provisions) Act 1989 (Enforcement of External Orders) Order 1995

10.30 am

The Minister of State, Home Office (Mr. David Maclean): I beg to move, "That the Committee has considered the Prevention of Terrorism (Temporary Provisions) Act 1989 (Enforcement of External Orders) Order 1995. This draft order has been brought before the House with the purpose of enabling the United Kingdom to implement a bilateral agreement which we concluded with the Indian Government in September 1992. The agreement paved the way for wide-ranging cooperation between our countries in tracing, freezing and confiscating or forfeiting the proceeds and instruments of serious crime, including the funds of terrorist organisations. The order, which has been considered by the Joint Committee on Statutory Instruments, now takes care of the part of the agreement that deals with terrorism. Once the order is made, we will be in a position to implement the agreement. Successive Governments have long regarded terrorism as a uniquely pernicious form of criminal activity which must be countered by all legitimate means at our disposal. In recent years, attention has focused, not surprisingly, on terrorism connected with the affairs of Northern Ireland. The threat from other forms of terrorism remains a very real one, as the attacks on Jewish targets in London last July demonstrate. Terrorist groups campaigning against foreign governments or against the authorities in their own countries are very ready to establish a presence abroad where, they hope, they will be out of reach of their domestic law enforcement agencies. Terrorists nowadays recognise no natural boundaries. They operate on the world stage. That is why international co-operation is so important in the fight against terrorism. One of the most important lifelines of any terrorist group, and therefore potentially one of its weak points, is its access to funds. As the Committee will know, the Prevention of Terrorism (Temporary Provisions) Act 1989 introduced powers to tackle the finances of terrorist groups operating in the United Kingdom. As well as allowing those responsible for providing the funds to be prosecuted, the Act empowered the courts to order the restraint and forfeiture of those funds. 4 That brings me to the order itself. Schedule 4 to the prevention of terrorism Act 1989 provides that the restraint and forfeiture powers may be used in the United Kingdom on behalf of any foreign country that has been designated by Order in Council under the Act. This draft order seeks to designate India for such purposes. The order breaks new ground in that it is the first of its kind to be made under the prevention of terrorism Act 1989. But it is not innovatory in its form, which the Committee will recognise is based on the Orders in Council that Parliament has already approved under various Acts. The practical effect of the order will be to make it much more difficult for terrorist organisations operating in India to use the United Kingdom as a safe haven for their funds. It will allow prosecutors here, at the request of the Indian authorities, to register in the High Court restraint or forfeiture orders made by the Indian courts, so that they can be enforced here as if they had been made by our courts in the first place. The order incorporates a number of safeguards to ensure that injustice does not result from the exercise of these powers. A forfeiture order will be registered and enforced only if the High Court is satisfied that it is in force and not subject to appeal, that the subject of the order appeared in the proceedings in which it was made or was given the opportunity to contest it, and that its enforcement would not be contrary to the interests of justice. Similar safeguards apply in respect of restraint orders. The High Court is already experienced in dealing with restraint and confiscation orders sent to us from overseas. Large sums of money are currently under restraint on behalf of other countries under the legislation I mentioned earlier. There have also been confiscations. Tried and tested procedures therefore exist in the United Kingdom courts to handle any requests for restraint or forfeiture which arise from this order. I trust that the draft order, like its predecessors, will receive the Committee's support. It represents a significant advance in our ability to co-operate internationally against terrorism. As such, it sends an important message to international terrorist groups about the United Kingdom's determination to make life as difficult as possible for them. It is, of course, also a token of our willingness to co-operate with India. I commend the order to the Committee.

10.34 am

Mr. Alun Michael (Cardiff, South and Penarth): We whole-heartedly support the intention of sending a clear message about our determination to combat terrorism at home and abroad—as we support the principle of the strongest possible co-operation with other democratic countries. In that sense, we welcome the agreement with India. The principle of confiscation is also not at issue. We support that as a weapon in the fight against terrorism. 5 Will the Minister present more of the context in which the statutory instrument comes before the Committee today? It is the first to be presented under the 1989 Act. What other such mechanisms were brought forward under earlier legislation? Are there differences between their operation and that of the new provision? The Minister has said that in general the mechanisms are similar to those adopted in other instances. The Minister said that the passage of the measure would put the Government in a position to implement the agreement with India to which he referred. Would that implementation then be complete, or would further steps be required? Will the Minister tell us about the mechanisms for implementation? He said that the High Court must be satisfied that the appropriate mechanisms have been properly followed in the country where proceedings have taken place—India, in this case. Technical requirements must be satisfied in the High Court, as to processes undergone and evidence produced, before the mechanisms allowed by the order can be pursued. On what points would the court need to be satisfied? What quality of evidence is required? To what extent is the procedure in the High Court subject to international law or agreements, as distinct from the bilateral agreement that the Minister referred to? He will appreciate the obvious concern that provisions should not be misused—an issue which has been the subject of discussion for some time. Confiscations under previous Orders in Council form part of the context. I should be grateful for more details about that. The Minister referred to previous confiscations and uses of the relevant mechanisms. What countries were involved and what were the amounts concerned? How many orders in relation to other countries have been pursued through this mechanism? That information will help us by providing a fuller context for our decision today.

10.38 am

Mr. A. J. Beith (Berwick-upon-Tweed): We support the objectives of the order, limited as it is, in practice, to India. The message that we are sending out loudly and clearly, is that we will not allow terrorism imported from anywhere to encroach on our soil, and that all the appropriate agencies will be used to prevent it. Confiscation of funds is one aspect of that operation. Perhaps the Minister will say how much use he considers will be made of the order and what significant contribution he thinks it will make to dealing with terrorism that might otherwise be imported from the Indian sub-continent. There may be anxiety in some quarters, such as among ethnic minority groups in this country, that the measures could be used to support what might be seen as oppressive measures in India. That would be the feeling of pro-Kashmiri groups and Sikhs particularly, 6 because they are not in any way associated with militancy but may be involved in legitimate political protest over their disagreement with the Indian Government's policies. This does not mean that they are in any way associated with terrorism. The ability of our courts to handle these matters in a proper way, weighing the evidence carefully, must be a vital safeguard for that. At least we have made clear at this stage that the order is directed at dealing with those who use violent means to seek the overthrow of the democratic process and, in many cases, also import the means of violence. The clear message must be that the order is in no way a denial of people's rights to express legitimate differences of view on issues that are quite far from our shores but which excite understandable interest among people who are citizens of this country. The crucial message, with which we all agree, is that we will not let more terrorism be imported to our shores.

10.40 am

Mr. Maclean: This has been a short but excellent debate. Opposition Members raised valid points to which I shall respond briefly. The hon. Member for Cardiff, South and Penarth (Mr. Michael) asked whether we have now implemented all the agreement. Yes, the agreement may now be implemented following an exchange of diplomatic notes between India and this country. The hon. Gentleman asked why the order was slightly different from others. It has been drawn in such a way that restraint can be effected only when an external restraint order—one made in India and sent to us—has been registered by the High Court. This is not quite the usual method of achieving restraint under such orders—as with the Drug Trafficking Act. Usually the High Court is given power to make its own free-standing restraint orders in response to an application from a prosecutor in this country, acting on behalf of overseas authorities. The application would need to be supported by comprehensive details of the case in India, but it would not be necessary for an Indian restraint order to be produced. The procedures established by the order are quite adequate in themselves to enable assets to be restrained pending the making of an external forfeiture order. A free-standing restraint power would in some circumstances be a quicker and more flexible way to proceed. At present, however, such a scheme would be beyond the bounds of the enabling power in schedule 4 to the Prevention of Terrorism (Temporary Provisions) Act 1989. We intend to take the earliest opportunity to amend the enabling power in schedule 4. When that has been done, I shall introduce a further order under the prevention of terrorism Act creating a free-standing restraint power in respect of terrorist funds. That would put them on the same basis as drug finances, but this method is a suitable and practical alternative. 7 The right hon. Member for Berwick-upon-Tweed (Mr. Beith) and the hon. Gentleman asked what the safeguards were. Those were the first questions that I asked.

Mr. Michael: Before the Minister of State goes onto the safeguards, will he explain the differences in procedure? Am I to understand that, under previous orders, an application is made in this country to the High Court, and an order is made in this country, and there is no requirement to produce the order made in the country of origin, but that, in this case, the order made in the country of origin has to be produced? Does the court then need the same sort of evidence that applies in the case of other countries, in addition to evidence of that order having been made? In other words, is there an additional requirement in this process as distinct from lesser requirements?

Mr. Mclean: That question is not exactly relevant, but in some ways it is an additional requirement—a double process. The basic difference is that under the drug orders the request to make an order comes from another country. That is proceeded with by the Crown Prosecution Service, acting on behalf of the foreign Government with whom we have the agreement. An order is then made in our court. Certain evidential criteria must be satisfied, but we do not retry the case. This is on the assumption that someone has been found guilty in another country and we are trying to get assets confiscated or forfeited. An order is made in our courts by the CPS, acting on behalf of a foreign Government. In this case, the foreign Government are making the order in their courts; it is being passed to the British Government, and we then go to our courts to make a similar order based on the order that we have received. There are still certain safeguards which no doubt the Committee will be interested in, as they deal with the points which concern the right hon. Member for Berwick-upon-Tweed and, indeed, all hon. Members. Before an application is made in the High Court to register an external forfeiture order, our central authority, the Home Office, will check that the forfeiture request falls within the terms of the India agreement. Then our national criminal intelligence service, the police and the CPS will examine the request and liaise with the Indian authorities as 8 necessary. If there are doubts about a request, more information can be obtained. I consider that a most important safeguard to prevent the theoretical possibility of abuse. Our agreement with India contains a refusal clause. Requests may be refused if they would seriously impair our sovereignty, security, national interest or other essential interest. Before the High Court registers the order, it must be satisfied that it complies with the definition set out in the India order. It must be in force, and no longer subject to appeal in India, and the person against whom it is made must either have appeared in the proceedings or been given an opportunity to contest the order. That is a fundamental principle of natural justice. The final, over-arching test is that the High Court must be satisfied that registration would not be contrary to the interests of justice. In these circumstances, I am satisfied that we have built in sufficient checks and balances to prevent the possibility of an order being abused. I was asked what the practical effect of the order would be. It is difficult to say. So far, we do not know what the deterrent effect is of the other powers. The message has got out to drug dealers around the world that investing in any banks or institutions in London is not a safe bet. They know now that their assets can be touched because of the powers that we have and no doubt they will move them elsewhere rather than invest them in London. Other countries with similar powers will have been able to deter them in that way. The hon. Member for Cardiff, South and Penarth asked me for details of the effectiveness of the orders, which other countries we have agreements with, and the sums involved. This can be long and technical. With the Committee's permission, rather than recite it all today, I shall write to the hon. Gentleman, circulate other members of the Committee and leave a copy in the Library. That may be for the convenience and accuracy of us all.

Question put and agreed to.

Resolved. That the Committee has considered the Draft Prevention of Terrorism (Temporary Provisions) Act 1989 (Enforcement of External Orders) Order 1995.

Committee rose at thirteen minutes to Eleven o' clock.


Winterton, Mrs. Ann (Chairman)

Anderson, Ms Janet

Beith, Mr.

Bell, Mr.

Fox, Dr. Liam

Horam, Mr.

Hutton, Mr.

Kennedy, Mrs. Jane

Maclean, Mr.

Mates, Mr.

Michael, Mr.

Neubert, Sir Michael

Rumbold, Dame Angela

Shepherd, Mr. Colin

Spicer, Mr. Michael

Thomason, Mr.