Amendment 105A

National Security Bill - Committee (5th Day) – in the House of Lords at 5:00 pm on 18th January 2023.

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Lord Marks of Henley-on-Thames:

Moved by Lord Marks of Henley-on-Thames

105A: Clause 82, page 55, line 20, at end insert “provided that such evidence or submissions are not merely incidental to the principal issues in the proceedings”Member’s explanatory statementThis amendment restricts the definition of ‘national security proceedings’ to correspond with the ordinary meaning of that phrase, and not merely because some national security-related evidence has been adduced. It also prevents a public body from avoiding accountability by categorising proceedings as ‘national security proceedings’.

Photo of Lord Marks of Henley-on-Thames Lord Marks of Henley-on-Thames Liberal Democrat Lords Spokesperson (Justice)

My Lords, I am grateful for the explanation that these two groups have been combined. I spent some time today wondering why they could possibly have been separated, since they both concern the topics of a reduction in damages and freezing powers and damages. We are now dealing with all the amendments to Clauses 82 and 83 and the stand part objections to Clauses 82 to 86.

I have Amendment 105A in group two. It is what I might call an exemplar amendment, by which I mean that it is directed at one of the issues on which these provisions on the power to reduce damages under Clauses 82 to 86 are unacceptable. I say at the outset that I fully support the objections to any of these clauses standing part of the Bill, advanced by my noble and learned friend Lord Wallace of Tankerness, my noble friend Lord Purvis of Tweed and the noble Lord, Lord Pannick. I shall therefore speak at this stage on the amendments in group three as well, which relate to the reduction, freezing and forfeiture of damages proposed by Clauses 82 to 86.

I will make three points. First, these clauses are vindictive, because they are not clearly targeted towards achieving the end at which they are aimed but instead represent a far wider knee-jerk attack on the civil rights of those affected. Secondly, they are unnecessary, because existing statutory powers and legal principles are already in place to achieve that end. Thirdly, they would represent an insidious restriction of the rule of law and an unwarranted grant of effective immunity for government from legitimate action taken by citizens to recover damages for proven unlawful actions by government agencies.

I turn to my first point: that the provisions are not targeted at the end which they are intended to achieve. The aim of these provisions is described in the impact assessment. Based on the Conservative manifesto commitment to

“do all we can to ensure that extremists never receive public money”, the impact assessment says that, to achieve this aim,

“civil damages reforms will address the risk of awards of large sums of damages paid out in civil court claims being used to fund and support acts of terror and whether damages are appropriate where a claim in a national security case concerns a claimant’s involvement with terrorism.”

The first of those aims concerns the use of damages awards, which we say can be addressed by freezing orders under existing legislation, to which I will turn in due course. But the second presupposes a link between the claimant’s conduct and the award of damages.

That brings me to my Amendment 105A, which would restrict the ambit of national security proceedings under the Bill for the reduction of damages provisions. As drafted, the definition would encompass any proceedings where any party has at any stage presented any evidence or made any submissions to the court relating to national security, so it would apply whether the evidence or submissions were germane to the issues in the case or not. For example, where at an interim stage in proceedings the Government have resisted disclosure of government documents for a reason of national security and the parties have adduced evidence and submissions in respect of that objection, the proceedings would come within the definition and the provisions relating to reduction of damages would apply. In no sense are these provisions restricted to claims concerning a claimant’s involvement with terrorism; in that sense, they are simply not restricted to addressing the mischief at which the Government say they are aimed.

The Joint Committee on Human Rights made this point in trenchant terms at conclusion 35 of its report, which said:

“Damages should not be reduced based simply on factors identifying the claimant as unworthy of compensation or excusing the Government for actions that have been found to be unlawful. Before any reduction in damages should be made in the widely defined ‘national security proceedings’, the defendant should be required to satisfy the court that the damages are likely to be used for terrorist purposes.”

It is wrong in principle that damages should be reduced for a reason that is unconnected with the conduct for which they are awarded.

That brings me to my second point. Where the conduct of the claimant is in full or in part responsible for the Government’s unlawful conduct which gives rise to the award, the existing law gives the courts ample power to reduce or refuse any award of damages. The age-old Latin maxim—I apologise for quoting Latin—“ex turpi causa non oritur actio” prevents a wrongdoer from succeeding in an action which essentially arises as a result of that wrongdoing, and the maxim “volenti non fit injuria” bars a claimant who essentially willingly takes a risk of harm from recovering for the consequences of that risk-taking. Furthermore, the contributory negligence Act 1945 is not confined to negligence but gives the court power to reduce damages

“Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons … to such extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage”.

So where claimants bring damage on themselves, the courts have ample power already to reduce their awards.

Reprieve, in its excellent briefing on behalf of a number of organisations, for which I am grateful, made the point that these clauses would give the UK Government protection against entirely legitimate claims brought to recover damages arising out of the UK Government’s complicity in torture. It points out that victims’ rights to redress for torture, which are enshrined in international law, would be restricted by these provisions. It cites the case of Jagtar Singh Johal, who has a case against the British Government arising out of their allegedly sharing intelligence with the Indian authorities which led to his detention and torture.

It also cites the case of Abdul Hakim Belhaj and Fatima Boudchar, which arose out of their detention and torture in Thailand, their rendition to Libya and Mr Belhaj’s further torture there; and to whom Theresa May publicly apologised in 2018 after years of civil litigation because she accepted that:

“The UK Government’s actions contributed to your detention, rendition and suffering.”

Claimants’ pursuit of such cases against the Government would be threatened by these provisions. That is the third point I make about the rule of law.

Turning to the powers to freeze or forfeit damages, Jonathan Hall KC, the Independent Reviewer of Terrorism Legislation, set out in his note on these clauses in May 2022 a detailed analysis demonstrating that the Government have ample freezing powers, appropriately circumscribed, under the Anti-terrorism, Crime and Security Act 2001. He is highly critical of the powers the Government propose to take, particularly of them being available on the basis of a “real risk” that they will be used for terrorism, rather than requiring it to be established that they are “intended to be used” for terrorism. He says that this is an unjustified lowering of the threshold—I agree. He concluded that

“this measure not only makes it easier to deprive individuals of damages to which a court has found they are entitled, but it passes an advantage to the authorities who are most likely to be the defendants in proceedings in which these measures are invoked.”

He went on to say that the measures risk

“the impression that if the government is sued, it will have a special advantage in keeping hold of monies which is not available to other unsuccessful parties in civil proceedings.”

That elegantly encapsulates, in modest terms, my third objection to these clauses. They are inconsistent with the principle that the Government are subject to the law and so are inimical to the rule of law. I therefore support the objections to Clauses 82 to 86 standing part of the Bill.

The amendments in the third group are alternatives to the stand part notices. I support Amendments 106 to 111. Amendment 106 introduces a requirement that for the duty to consider a reduction in damages to bite, the court would have to be satisfied that any damages awarded would be used for the purposes of terrorism. I have made the point that a principal objection to these provisions is the failure to include such a required connection between the damages and the use for terrorist purposes.

Amendment 107 would remove subsections (3)(a)(ii), (3)(b) and (4) from Clause 83, dealing with the claimant’s involvement in terrorism, short of the commission of a terrorist offence. They would be removed as a national security factor to be considered in reducing damages. Amendments 108 to 110 are alternative amendments, which would remove subsections (4)(a), (4)(b) and (4)(c) respectively.

Amendment 111 enlarges the exclusion under Clause 83(6) in respect of damages awarded for breach of human rights, by adding

“or which it would award under section 8 of that Act had the claim been brought under it”.

That was an amendment recommended by the JCHR in paragraph 34 of its report, on the basis that:

“It is important that remedies for human rights violations are not reduced by the courts, simply because they have been identified through claims brought otherwise than under” the Human Rights Act. That is the basis for the amendment proposed by my noble friend Lady Ludford.

I have Amendment 111A in this group, which adds another reason for not reducing damages—I note that an “(a)” should have been inserted before the human rights exception. My amendment would add the exclusion of a reduction in damages

“where such a reduction would be inconsistent with granting the claimant appropriate access to justice.”

Therefore, where a claimant establishes an entitlement to damages that was independent of any wrongdoing, I suggest that it would be an obvious affront to access to justice to deny that claimant the right to go to court to claim damages to which they would otherwise be entitled. That is my justification for my amendment. However, all these amendments are plainly subsidiary to our wholesale objection to all these clauses which restrict access to justice for claimants in these cases on grounds that we say simply do not pass muster. I beg to move.

Photo of Lord Pannick Lord Pannick Crossbench 5:15 pm, 18th January 2023

My Lords, I have added my name to many of the amendments in these groups. I declare an interest as a practising barrister in public law cases, occasionally in cases concerning natural security.

I entirely agree with the powerful speech that the Committee just heard from the noble Lord, Lord Marks. The award of damages for civil wrongdoing is one of the primary means by which the court remedies the wrongdoing and deters future wrongdoing. That the award of damages is central to our system of justice is confirmed by Clause 83(6), which recognises that the court may not decide to reduce damages to a claimant under the Human Rights Act. By seeking to allow a reduction in damages for non-human rights cases, these clauses would introduce a lesser standard of justice.

I am very unclear why what is unacceptable for a human rights case should be thought acceptable for other civil litigation. That is especially so when the concerns which the Government have about paying damages when they are found to be liable are most likely to arise in cases which do concern human rights violations: cases where the allegation is made—and for the purpose of this clause we must assume is proved to the satisfaction of the court—that the state has been complicit in acts of torture or murder, perhaps by undercover officers. Such grave acts can be and are pleaded as human rights violations.

I appreciate that the Government are keen to remove legal liability, including human rights liability, for claims based, for example, on UK military action abroad, but if liability were to be excluded for such alleged conduct, there would be no need for provisions on damages. Why deal with this by reference to the remedy rather than to liability?

These clauses are not even concerned with a case where the terrorist’s wrongdoing had a causal connection with the Crown’s conduct, which forms the basis of the Crown’s liability for its wrongdoing. Clause 83(4)(a) makes it clear that there is no need for such a causal connection. In any event, as the noble Lord, Lord Marks, correctly explained to the Committee, existing legal principles would apply in such circumstances. Therefore, I need to be persuaded by the Minister that there is any principled basis for these clauses.

Photo of Lord Purvis of Tweed Lord Purvis of Tweed Liberal Democrat Lords Spokesperson (International Trade), Liberal Democrat Lords Spokesperson (International Development), Liberal Democrat Lords Spokesperson (Foreign and Commonwealth Affairs)

My Lords, the noble Lord, Lord Pannick, and my noble friend have comprehensively outlined why both these clauses are unnecessary in law but also go far beyond what is necessary and will be damaging in practice. I need not add very much other than to say that I have put my name to the amendments that my noble and learned friend Lord Wallace of Tankerness, who was unable to be with us today, has put down with regard to Clauses 82 to 86 stand part and, as my noble friend indicated, the other amendments that would seek to reduce the impact.

The clauses undermine considerably mechanisms for holding government to account, as the noble Lord, Lord Pannick, said, through civil claims. In addition to seeking a remedy, such claims have been positive in changing policy and practice. Therefore, the impact of the clauses, as Reprieve together with the other bodies referred to by my noble friend have indicated, could be to allow Ministers and officials to avoid paying damages to survivors of torture and other abuses overseas.

The concern about this is compounded by the previous debates that we had on Clause 28. There is now a considerable way because of the removal of the extraterritorial nature of the Serious Crime Act 2007 in Clause 28, which we debated earlier in Committee. In addition, it seems as if, together, the Government are seeking deliberately to move towards a very high level of impunity for our intelligence services, especially when it relates to some extremely serious cases.

That is why the elements in Clause 83(4) require careful consideration. The national security factors that the Government seek to put into statute would, as we have heard, include “conduct having occurred overseas”, under Clause 83(4)(a)(i). Here, it is important to raise the case of Mr Belhaj with regard to the Libyan Government, and that of Mr Johal and the Indian Government, because the practical effect of using this sub-paragraph would be to place the UK’s foreign intelligence service outside the scope of civil legal claims if any of those activities had happened abroad and, indeed, as the Government themselves so defined.

Secondly, Clause 84(4)(c)(ii) refers to

“the conduct having been carried out in conjunction with a third party.”

This opens up the valid concern raised by Parliament’s Intelligence and Security Committee in its investigation into alleged UK complicity in torture during the early years of the so-called war on terror. The committee said that the British resorted simply to the

“outsourcing of action which they knew they were not allowed to undertake themselves”, including torture and extraordinary rendition. That element of this clause would therefore mean a high degree of impunity with regard to that.

The triggering element of this issue is in Clause 83(3)(a), which refers to

“wrongdoing involving … the commission of a terrorism offence, or … other involvement in terrorism-related activity”.

A concern has been raised that this is so broad that arguably it means that anyone accused of terrorism by a foreign state can be captured by it. I would be grateful if the Minister could clarify whether that is the case because it is significantly concerning.

We have heard about the Independent Reviewer of Terrorism Legislation’s concerns regarding the restriction of victims’ right to redress. These clauses provide significant concern, not only standing alone with regards to civil law; together with Clause 28, they would be a retrograde step and should not be part of the Bill.

Photo of Lord Hacking Lord Hacking Labour 5:30 pm, 18th January 2023

My Lords, I am also in receipt of an excellent briefing from Reprieve, which was covered excellently by the noble Lord, Lord Marks—so much so that I am left with nothing further to say on that issue.

However, as I am currently the only Member on the Labour Back Benches, I want to put on the record that I wholly oppose the concepts contained in Clauses 82 to 86. They would allow Ministers and officials to avoid paying damages to survivors of torture and other abuses overseas; they would also give Ministers certain rights to reduce those damages under Clause 83. I just want to put a stake in the ground, as it were, behind the noble Lord, Lord Coaker. I hope that I speak for my colleagues on these Back Benches in saying that I wholly support what the noble Lord, Lord Marks, described to your Lordships so excellently. That is my stake in the ground.

Photo of Lord Faulks Lord Faulks Non-affiliated

My Lords, I add a couple of queries which I hope that the Minister can help with.

Clause 83(5) provides that:

“Where the court would award damages … of a particular amount, the court must decide whether, in light of its consideration of the national security factors, it is appropriate for it to reduce the amount of damages (including to nil).”

How is a judge supposed to decide whether it is appropriate? The national security factors are listed but perhaps, by way of an example, some illustration can be given to the Committee to help us understand what this legislation has in mind. Incidentally, I note at Clause 83(7)(b) the various other defences in common law to which the noble Lord, Lord Marks, referred—that is, ex turpi, volenti and contributory negligence—are reserved anyway. The question is whether anything further is needed. An explanation of why these provisions are needed would certainly help the Committee.

Photo of Lord Coaker Lord Coaker Shadow Spokesperson (Defence), Shadow Spokesperson (Home Affairs), Opposition Whip (Lords)

My Lords, I thank the noble Lords who have spoken. I very much appreciated the introduction by the noble Lord, Lord Marks. It was very carefully explained and helpful to the Committee. The only thing that I will disappoint him with is that, having heard his Latin pronunciation, I have decided that mine is not as good and so will leave it out.

Some of my remarks will be more general but none the less will ask the Government for justification—with respect to the clause stand-part debates rather than the individual amendments. The noble Lord, Lord Faulks, is absolutely right to ask what the court should take into consideration when determining what the level of damages should be, if it is to reduce them, even down to nil. The Minister in the other place talked about care costs. That is my point. It would be interesting to know what the Government’s thinking is. My remarks are mostly not as specific as those of the noble Lords, Lord Marks and Lord Pannick, but raise some of the more general points that the Government need to justify these clauses and to clarify why we must agree them in their current form. I am very grateful to my noble friend Lord Hacking, whose stake in the ground gives me hope for the future and makes me realise that I am not alone when I stand here. I appreciate his support.

Amendment 105A, moved very ably by the noble Lord, Lord Marks, raised a number of important concerns around the provision—or reduction in provision—of damages in national security cases, including, as the amendment probes, whether a public body could avoid accountability by categorising proceedings as national security. As I said, I want to address the clause stand parts but also Schedule 15, to get some clarity around the Government’s thinking.

Before anybody reading this in Hansard categorises it in a way that it should not be categorised, I make it clear that none of us in this Committee or indeed in this Parliament wishes to see damages used to finance terrorism or in any way to allow individuals or groups to benefit from them. That is the motivation behind Clause 83 and one that none of us could disagree with. However, it is important to consider how we do that. As the noble Lord, Lord Pannick, said, it is particularly important for us to do this because many people read our proceedings and so it is important that they understand the debate. The Explanatory Notes point out in stark terms, and more clearly than the Bill does, that:

“Clause 83(1) provides that the duty applies where the liability of the Crown has been established”.

The JCHR report uses even more strident language. It says this applies where the Crown, Government or state—whichever you want to call it—has been proven in court to have “acted unlawfully”. We are talking about a situation in which damages are reduced in cases where the guilt of the Crown has been proven. That is no doubt why many of us will tread carefully in this area: the state has been proven guilty and we are passing legislation that would enable the Government to further reduce damages. This is difficult territory but, with respect to terrorism and damages, it is none the less territory that we need to go to. It is true that certain human rights cases are excluded—those brought under Section 7(1)(a) of the Human Rights Act 1998—but other cases are not. As I have said, even where the court has established that the state is in the wrong and the state has been found guilty of wrongdoing with respect to an individual, and the clause applies, the state can seek to reduce those damages.

How can the Government reassure the Committee that this clause cannot be used to allow the state to avoid accountability? As I have said, of course public money should not be used to fund terrorism via the damages awarded but, as the noble Lord, Lord Marks, pointed out, the clauses seem to be drawn so broadly that potentially deserving victims may be excluded. How will the Government avoid that and ensure that the limitation of damages applies only to those who have committed wrongdoing involving terrorism, which I understand to be the point and purpose of the amendment of the noble Lord, Lord Marks, and the amendments of others?

We do not wish to see innocent bystanders caught up in a terrible situation to be excluded, but the current drafting of these clauses at the very least implies that, if there is any evidence related to any unspecified national security or intelligence services issue, the damages could be reduced or taken away completely. The Law Commission points out that this could lead to the state introducing national security evidence to avoid paying damages under the provisions of the Bill laid out in Clause 82(2)(a). Can the Minister detail for the Committee why these provisions are necessary? What additional powers do they make available to a court? Can a court not already take into account whether a claimant is deserving or not and whether there are concerns about the potential misuse of any such moneys or damages awarded to them? A point raised in the other place is that this must not be a slippery slope. Could the requirement to reduce damages from terrorism, because of our obvious horror, ever be extended to other areas where we are also horrified—for example, paedophile cases?

I have other points and questions for the Minister on Schedule 15 and other clauses in this group. Are these provisions based on experience from some existing cases, where the Government think this has happened and needs to be stopped, or are they being introduced in anticipation of it happening in the future? If they are not based on existing cases, what are the limitations of the existing legislation, on which the Government have evidence that they can present to the Committee to show why we need this new legislation?

In the other place, for example, the Government were asked what the problem is with existing legislation related to the financing of terrorism. We already have legislation that deals with reducing or removing damages that are used to finance terrorism. I think the noble Lord, Lord Pannick, also made that point, unless I misunderstood.

The freezing orders under Schedule 15 are possible for two years and can be renewed for a further period, before leading to potential forfeiture. Can the Minister explain what the term “real risk” means, for example in paragraph 1(4) of Schedule 15? If it is a standard of proof, as real risk is in the future, how will the court determine it? Will the court require actual proof to allow freezing orders to be made, or will it make a subjective judgment about something that may happen, the real risk that may occur, in the future?

Can the Minister explain the standard of proof that will be required in forfeiture cases? Again, is it the threshold of real risk which would be used for any such order, or is there a different standard of proof between freezing orders and forfeiture? In terms of freezing orders and forfeiture, what cases have shown that there is a problem? What problems are there with the existing legislation that already deals with proceeds of crime and the ability of courts to freeze bank accounts if they believe that they are to be used for criminal purposes? What is the problem that the Government are trying to fix?

On the question of proof, we are asking the courts to look into the future: they will have to determine whether there is a real risk in the future. Who will help them come to that conclusion, and with what evidence? If it were the intelligence services, would having to present evidence to a court not incur a risk for the intelligence services?

Can the Minister also outline the other factors that would need to be taken into account in any potential reduction of damages? This is the point that the noble Lord, Lord Faulks, made. We have heard that the court will have to consider this notion of real risk in the future, but in what cases, if you thought that there was a real risk of the money being used for terrorism, would you not seek to stop all of it—in other words, forfeit the whole amount immediately, rather than for a short period or only part of it? There have to be other reasons that you would say that. If this money is to be used for terrorism, or there is a real risk of it being used for terrorism, why would the court not say it would have the whole lot? Why would you only take a little bit away or half of it away, and leave the other half, potentially to be used for the purpose that you froze the first part or half of the money?

This is where it gets to the point made by the noble Lord, Lord Faulks, because the Minister in the other place said that there may be other things to take into account—for example, care costs. The noble Lord, Lord Faulks, made this point better than me: what is it, apart from the real risk of terrorism, that a court would take into account to reduce the amount of damages to be forfeited to less than the whole amount? If you think that there is a real risk of terrorism, why would you not take the whole amount away straightaway, rather than leave half of it because the other half is needed for something else? If it is needed for something else, what is that something else? Again, that is the point, if I have understood it right, that the noble Lord, Lord Faulks, is making.

Are these clauses essentially the same for wrongdoing by the intelligence services and the Armed Forces? Is it the same framework within which they operate?

Finally, I will conclude by saying that we all wish to see those who commit terrorism prosecuted with the full force of the law. There is no difference between any of us on that. None of us wants to see damages used to finance terrorism, but the Government need to explain why the new laws are needed, what the gaps are in the existing legislation that they are seeking to fill, and whether some clarification and amendment to tighten these provisions—as in the amendment, for example, of the noble Lord, Lord Marks, or maybe others—may actually improve the Bill. None of us seeks to destroy the Bill. What we are seeking to do is to improve and tighten it. As always in this Committee and in this Chamber, we wrestle with important principles, but even in this most difficult of areas, we must get the balance right between those of the state and those of the individual.

Photo of Lord Bellamy Lord Bellamy The Parliamentary Under-Secretary of State for Justice 5:45 pm, 18th January 2023

I thank noble Lords very warmly for their contributions, which were pertinent and challenging as ever. I shall make three introductory points. First, there is perhaps—and I put this as lowly as I can—a tension between those who say that this approach is wrong in principle and, on the other hand, those who say it is already covered by the general law. If it is covered by the general law, it cannot be wrong in principle. There seems to the Government to be an opposition in those two propositions.

Secondly, it is said that these provisions are intended to introduce a high level of impunity for the security services, generally reduce their accountability and effectively put them beyond the law. That is not the case, because in this legislation the decision is for the court—it is for the court to decide what to do. It does not give immunity to officials, the security services or the Government. It is a matter for the court. Essentially, this legislation is spelling out what the position is in relation to persons who have been involved in terrorist wrongdoing. It is saying in explicit terms that, where that situation arises, the court should consider—and I emphasise the word “consider”—whether damages should be reduced to reflect that wrongdoing. It is perfectly true that, at common law, such an argument could already be made, at least in theory; depending on which Latin tag you chose to use or whether you refer to the contributory negligence Act or other general principles, the argument can be made. But the point of these provisions is to spell that out in very clear terms so that the general public and potential claimants know what the position is, and one is not left to argue what can sometimes be obscure and difficult questions of common law in particular cases.

Thirdly, the overriding purpose—we can discuss the exact wording—is to convey a message. The message is that the United Kingdom is not a soft touch for those involved in terrorist wrongdoing when they come to claim civil damages. That is a message particularly directed to those beyond the seas who may be tempted to bring, and have in the past brought, proceedings in the UK courts when these kinds of situations have arisen. It is to make the civil position clear. By the same token, we have provisions relating to freezing and forfeiture which protect any damages that are awarded from subsequently being used for terrorist purposes. That is the overriding framework, as it were.

On behalf of the Government, I entirely reject the suggestion that these provisions are intended to introduce a high level of impunity for the security services or to avoid accountability, because it is ultimately for the court to decide. This is limited to national security proceedings, and the conduct of any public bodies will still be fully subject to scrutiny by the court.

With that general description, I shall try to deal with the various points which have been raised. I come first to Amendment 105A, put forward by the noble Lord, Lord Marks, which seeks to introduce an exclusion in cases where the evidence or submissions to the court about national security are merely incidental to the civil claim in question. While completely understanding the objective behind the amendment, the Government believe that it is not necessary, for three reasons.

First, national security proceedings are very clearly defined in Clause 82(2), and it is very hard to construe that definition as including a case where national security was for some reason de minimis to the proceedings concerned. Secondly, it is, in the Government’s view, hard to imagine in practical terms a situation in which a person involved in terrorist wrongdoing brings a case against the Crown, and the Crown has presented evidence or made submissions about national security, but national security is merely incidental to the issues in the case. It seems to the Government that it is most unlikely that such a situation would arise. Thirdly—this is a fundamental point that I have already made—

Photo of Lord Marks of Henley-on-Thames Lord Marks of Henley-on-Thames Liberal Democrat Lords Spokesperson (Justice)

The Minister simply has not answered the point that this provision in the Bill refers to “at any stage” of the proceedings, and any stage of the proceedings could be a disclosure stage, an interlocutory stage or an interim stage, where documents are sought to be withheld for reasons of national security that do not go to any major issue in the proceedings and are merely incidental. The Minister has simply not answered that. If he would like to do so, I would be grateful.

Photo of Lord Bellamy Lord Bellamy The Parliamentary Under-Secretary of State for Justice

I will further reflect on the question, but it seems to the Government that that specific example is unlikely to bite, as it were, on the duty of the court in the particular circumstances that we are considering, because ultimately it is up to the court to consider whether a reduction of damages is appropriate. If it were the case that, technically speaking, you could argue that national security proceedings on the face of the statute were in some way involved because there had been an earlier discovery application but it had no material impact on the remainder of the case, one could reasonably assume, and the Government do assume, that the court would not proceed to reduce damages on the basis of something that had nothing to do with the real issues.

We will always reflect and consider further, because it is very important to get the drafting right, but at the moment the Government are unconvinced that this amendment is necessary and believe that the protections, and in particular the role of the court, are sufficient to deal with the concern that the noble Lord, Lord Marks, has raised. That, I think, is the answer to Amendment 105A.

Photo of Lord Anderson of Ipswich Lord Anderson of Ipswich Crossbench

The Minister rightly emphasises the very high degree of discretion that is given to judges under Clause 83. The core of it is Clause 83(5), which allows a judge to take a view on whether it is “appropriate” for the amount of damages to be reduced. I wonder what the Minister thinks of the point that to give judges such a wide discretion is perhaps to give them a poisoned chalice. Judges did not, so far as I know, ask for this power. Does the Minister agree that they could be strongly criticised were they to fail to exercise the power to reduce damages, even in cases where it would be consistent with normal legal principles, including the principle of fairness, not to reduce them?

Photo of Lord Bellamy Lord Bellamy The Parliamentary Under-Secretary of State for Justice

The question asked by the noble Lord, Lord Anderson, highlights the tension I referred to a moment ago. It is very difficult to say on the one hand, as is being said, that the courts have this power already and that they are perfectly capable of exercising it, whether under the 1945 Act or ex turpi causa, et cetera, and on the other hand to say that it puts them in a difficult position and that they will be criticised if they do not exercise it. I think I can say this: the overall intention of this legislation is not to alter or downgrade a principle of law that is already inherent in the common law and in our various jurisdictions; the purpose is to spell out that principle in this legislation so that no one has any doubt that it applies in terrorist cases. That is the main purpose of this clause. We are, to an extent, simply reflecting where we are, but clarifying where we are.

Photo of Lord Pannick Lord Pannick Crossbench

Can I press the Minister a bit further on this pivotal point? I respectfully suggest to him that he is asserting two conflicting principles. If I understand him correctly, he is saying, first, that the purpose of these provisions is to convey a message but, secondly, that we do not need to worry about it because it is all a matter of judicial discretion. But the judges will have to decide these cases. How are they to decide? How are they to apply their discretion? What message are they expected to convey? While I am on my feet, I remind the Minister that it was, I think, Samuel Goldwyn who said that if he wanted to convey a message, he used Western Union. That is perhaps a relevant principle for Ministers to bear in mind in relation to legislation.

Photo of Lord Faulks Lord Faulks Non-affiliated 6:00 pm, 18th January 2023

Before the Minister answers, and so that he does not have to go over old ground, I will intervene. In the Government’s case, the judges will have a new power that is needed because the existing defences of ex turpi and volenti are not adequate. I think that is the case the Government are making, but I respectfully submit that a judge needs a bit of help as to how he or she is to approach this case. When judges are given discretionary powers—for example, under the Limitation Act—they are given a long list of things to take into account or something that makes their job easier. I am putting myself in the position of a hypothetical judge looking at this clause, knowing that it apparently adds something to the existing common law and asking myself how I would approach this. I wonder whether there might be reflection and a judge will be given more guidance as to how he or she should approach this very difficult and delicate task.

Photo of Lord Bellamy Lord Bellamy The Parliamentary Under-Secretary of State for Justice

My Lords, perhaps I can take this point under advisement, because it is not yet spelled out in the statute and I am reluctant—on the hoof, as it were—to put words into the mouths of judges who would go about it in due course. One can imagine that one would draw inspiration from certain aspects of the existing law, but that is to go further than the statute already provides, so perhaps the Government can consider this point further.

I return to the broad thrust of the Bill and come to the stand part notices. I have tried to explain the importance of the message. Western Union is perhaps a slightly outdated way of conveying a message these days, but there are times when primary legislation is important to clarify the legal position, and this is one of those cases.

Before I pick up the specific points that have been made, in relation to the freezing and the forfeiture, the essential point is that these provisions bite at the moment the freezing order was made. You do not have to go to Horseferry Road Magistrates’ Court or Highbury Corner to get an order. It bites straightaway and is done by the same court that was dealing with the damages in the first place. It is more efficient to deal with the same court. Although there are other powers, as noble Lords rightly point out, in the Government’s view this is the right mechanism.

To come to the point made by the noble Lord, Lord Coaker, about why we do not just take the whole lot straight off, these exceptions for care costs and so forth, this is intended to be a measured structure. You start by simply freezing for the first two years, then you have another go at it after a second two years, then, finally, if after four years there is still “a real risk”—I will come to real risk in a moment—that is the moment when the forfeiture power kicks in. It is to give people time to persuade the court that there is no risk, as it were. That is thought to be a measured and proportionate approach to this problem.

The Bill provides that the freezing and forfeiture apply only in part to the damages if the court so orders, so that if, for example, medical expenses or care costs have to be met out of the damages, the court can provide for that. It does not have to take away the whole lot all at once. It can have regard to the needs of the claimant in that context.

That is the essential structure. It is to remove the risk of the money simply being spirited away at the press of a button, down a hole to an offshore haven before the courts can move to make sure that the money remains safe. Again, that is a power of the court, not of the Government or the security services. Therefore, in our view it does not lead to an undermining of the principle of access to justice or any other relevant right. To take another important point raised by your Lordships, it certainly does not take away the human rights damages. There are no circumstances in which it affects human rights damages in any event; that is a sort of entrenched position under the Human Rights Act. But that does not prevent a court taking into account circumstances in relation to other claims where the court considers that a reduction would be justified. Even in relation to human rights cases—I am sure plenty of people here will immediately put me right if I am wrong—the European Court of Human Rights reduces damages in certain circumstances when it does not think that the claimant is fully deserving of a particularly large award because of the conduct of the claimant in question.

That is the general outline and why we say that the whole structure is balanced but proportionate. It extends to involvement in terrorist-related offences. It is not limited to terrorist convictions because of the quite obvious difficulty, particularly in terms of parties that are abroad, in managing to apprehend them, bring them to this country, prosecute them and secure a conviction. Cases have been brought by persons abroad known by the security services to have been involved in terrorist activities but not subject to a conviction in this country. That is why we have to make this a little wider than people who have been convicted of terrorist offences.

For the reasons I gave in relation to the message, the provisions are not limited to circumstances in which one should confiscate the damages because of the risk of them being used in terrorist activities. One should reduce the damages because of the conduct of the claimant, which is a normal, civil law situation. I do not mean civil law in the sense of continental civil law, but it is the normal situation in the common law.

Photo of Lord Carlile of Berriew Lord Carlile of Berriew Crossbench

I must admit that I was more favourably disposed towards some of these provisions, but the Minister has convinced me that I was wrong. He has told us that these provisions are unnecessary. They are in effect a very long text message, which apparently the public are going to consider over their breakfast tables, reminding judges of what the existing law is. Is he comfortable with using this House and this legislation for that purpose?

Photo of Lord Bellamy Lord Bellamy The Parliamentary Under-Secretary of State for Justice

My Lords, I feel that this is the first time that I have ever convinced the noble Lord, Lord Carlile, that he is wrong. The answer to the question is yes, the Government are entirely comfortable with the need to make explicit what to a large extent is implicit but rather undefined and diffuse in our legal system. This measure gives us a clear code in terrorism cases to provide a framework for the judge to consider what he should do about damages. I accept that the question of guidance for the judges is an open point, but let us reflect on that. The purpose is to provide a clear framework in terrorism cases.

Photo of Lord Faulks Lord Faulks Non-affiliated

With respect to him, the Minister is quite right: the application of ex turpi is very uncertain. There is a great deal of authority, and it is difficult to predict in particular cases whether they are going to rely on it. However, if there is going to be a statutory scheme then I return to my point: it needs to be a lot clearer so judges know how they are supposed to apply it.

Photo of Lord Hope of Craighead Lord Hope of Craighead Judge

I wonder if I may add a thought. One of the words that strike me in Clause 83(5) is “must”. If I were a judge at first instance, I would have to explain my decision, so I would have to say that I had applied my mind to the various factors. Having looked at the factors, I am still left in the dark as to what principle I should apply. I can look at them and understand them, but why should they affect the award? I do not think a list of factors is needed if the Government can explain the principle that should be applied. Is it that a kind of quasi-immunity should be given because of these various factors—some sort of overriding principle in favour of the Government’s security measures and so on that should be applied? I cannot devise that myself, but a list of A, B, C and D is not going to be helpful. We already have the factors there; it is the trigger, what the principle is that leads to the decision that the damages must be reduced, that is important. Otherwise, a first-instance court might say, “I’ve considered the factors and I can’t see any reason why the damages should be reduced”, and an appeals court will say, “Well, that’s perfectly right”, and we are left without any significant advance in this legislation. I hope I have made my position clear. I do not like lists of factors very much, but I like to have guidance as to principle.

Photo of Lord Bellamy Lord Bellamy The Parliamentary Under-Secretary of State for Justice

I can say that the principle is certainly not for the judge to be asking himself, “Should I be protecting the Government or the security services from actions for damages?” I am not drafting the Bill, and I will further consider the matter, but I would imagine that it is something like how far the claimant brought the situation on himself. That would be an ex turpi causa or contributory negligence type of consideration. However, I do not want to pre-empt the discussion any further, standing on my feet thinking aloud, because I hear what is being said: we want further precision as to how the courts are to go about this.

Photo of Lord Purvis of Tweed Lord Purvis of Tweed Liberal Democrat Lords Spokesperson (International Trade), Liberal Democrat Lords Spokesperson (International Development), Liberal Democrat Lords Spokesperson (Foreign and Commonwealth Affairs)

I think the Committee is now in a bit of a bind. The Minister stated a few moments ago that the Bill is now a clear code and explicit, but he is unwilling to tell the Committee even some basic elements of what guidance for a judge might exist. We do not know now how to proceed on the basis of this before Report, especially in the case of the specific question that I asked.

The Minister has also stated, exactly from the Government’s perspective, what the guidance for judges is. He talked at the opening of his remarks about demonstrating that

“the UK is not a soft touch for those involved in terrorist wrongdoing”.

It is very clear from what the Minister said at the Dispatch Box what the intent is. If the judge is not to take into consideration what the Minister stated, we are in a bit of difficulty.

My specific question here, and I hope the Minister can be specific in an answer now, relates to the concern that was raised that the national security factor in Clause 83(3) is broad, and that a foreign power can state that the claimant was involved in terrorist activities in a foreign country. If that is used by a party under the national security factor, my reading of that is that the judge must now take that into consideration. Surely that cannot be right.

Photo of Lord Bellamy Lord Bellamy The Parliamentary Under-Secretary of State for Justice 6:15 pm, 18th January 2023

My Lords, on that last point, I would need some notice of that question. It is not a point that I have so far had to consider.

It is the case that the court would have to be satisfied on the civil standard that that the claimant had been involved in terrorist wrongdoing. In accordance with normal statutory principles of construction, there would have to be some nexus between the United Kingdom and the terrorist wrongdoing. It is hard to imagine a case in the UK courts where there was terrorist wrongdoing without any nexus to the UK. That is as far as I can go.

I will see if I can get a bit further, if your Lordships will permit me. As far as the general position is concerned, when I said the Government wanted to say that the UK was not a soft touch, I meant that the provision makes it clear that in civil proceedings against the security services of the United Kingdom one has to be aware that the judge will consider whether the damages should be reduced. That is all I meant by that. I did not mean to say, and I do not think I can reasonably have been construed as saying, that the intention was to protect the security services from unwarranted claims for damages. The underlying principle is, I think, that if a terrorist person has brought it on himself then that should be considered, but let me reflect further on the relevant questions that noble Lords have asked.

Photo of Lord Hope of Craighead Lord Hope of Craighead Judge

Would the Minister consider the wording in Clause 83(4)(a) that says there

“need not be a causal connection”?

You can find that there is a connection, but it need not be a causal connection. I can understand that if there were a causal connection then one might get around to thinking that the damages should be reduced but, if there is not a causal connection, why should you consider a reduction in damages at all? That is one of the reasons why I am looking for a principle that gets over the point that a causal connection is not necessary. What else is there?

Photo of Lord Bellamy Lord Bellamy The Parliamentary Under-Secretary of State for Justice

The causal connection point is to do with whether there are national security factors in the first place. As to general question of what the court is to do, and whether we should have further guidance or precision in statute, that is perhaps a matter that we will need to come back to on Report to see whether we can get any further clarity.

Photo of Lord Pannick Lord Pannick Crossbench

May I test the Minister’s patience by asking him to reflect on one other matter? He said, rightly, that in assessing damages in human rights cases the court is entitled to have regard to the conduct of the claimant, yet this clause does not feel it necessary to provide any message or guidance to judges in human rights cases. I ask him to reflect on why the Government nevertheless think it necessary to send a message to provide guidance in non-human-rights cases.

Photo of Lord Bellamy Lord Bellamy The Parliamentary Under-Secretary of State for Justice

I certainly undertake to reflect on what further guidance can be given on how the courts should go about this exercise.

I have taken up too much of your Lordships’ time and am conscious that I have not perhaps dealt with everything I should have. As I think I have said, the overall intention is not in any way to undermine mechanisms for holding the Government to account, or to allow Ministers and officials to evade scrutiny. I fully agree with the noble Lord, Lord Coaker, that we absolutely have to tread carefully. I hope that this package is a balanced one, and I invite noble Lords not to press their amendments.

Photo of Lord Marks of Henley-on-Thames Lord Marks of Henley-on-Thames Liberal Democrat Lords Spokesperson (Justice)

My Lords, we have had a worthwhile and detailed debate in which the Government have been pretty hard pressed on the detail of these clauses. I am bound to say that nothing I have heard suggests to me that these clauses are in fact defensible. They introduce a very important and, we say, objectionable new power. It is not merely a power but, because of their mandatory nature, a duty to consider reduction in damages—the power being to reduce damages where there is no connection required between the conduct of the claimant and the reduction in damages. That is entirely novel.

If I may go on from there to consider a point made by the Minister fairly early in his speech, he said that those of us who criticise these provisions must face the fact that there is a tension between that criticism and the reliance we place on existing law. The reason why his position falls and why there is a tension is precisely that, under the existing law—as in the point made a moment or two ago by the noble Lord, Lord Pannick—it is the claimant’s conduct that leads to the reduction in damages. The point made by the noble and learned Lord, Lord Hope, was that there is express exclusion of the requirement for the claimant’s conduct to be responsible in these provisions before a reduction in damages is ordered. The security factors may be entirely irrelevant conduct, as far as the award of damages is concerned, but nevertheless lead to the requirement to consider reducing damages.

I suspect that the noble Lord, Lord Bellamy, because of his being so conversant with the common law, got into some difficulty when answering my question on disclosure. He said it is unlikely that consideration of evidence that came to light in a disclosure application would have any bearing on the claimant’s conduct and therefore would lead a court to reduce damages. That is to fall into the trap of ignoring the effect of these provisions where no causal connection is required.

In answer to the other central point made by the Minister, that this is not about giving impunity or immunity to the Government because it is for the courts to decide, that leads the Government directly into the difficulty that these provisions are mandatory. As has been said a number of times, if a judge is faced with a mandatory provision that requires him to consider a number of factors and decide whether to reduce damages, he cannot blithely go on to say, “Well, I looked at the factors and I’m simply going to ignore the legislation”. He then either gets into the point the noble and learned Lord, Lord Hope, made—that he is giving no effect to the legislation at all and it is a cypher, because a Court of Appeal might agree with that—or he is simply falling into error because he is not applying the legislation. It is a very difficult conundrum to face.

The central point made where the Government have got into such difficulty is that originally raised by the noble Lord, Lord Faulks. He said that there is no guidance whatever in Clause 83(5) as to how and on what principle the judge is to approach the question of whether damages should be reduced. Ultimately, the Minister was forced into the position of saying, “I’m not quite sure—I’ll take it under advisement and we may come to some conclusion about it”. Frankly, and with the greatest respect to the Minister, that is simply not good enough. This Committee needs to know what principles are to be applied to the exercise of an entirely new and, we say, entirely objectionable power.

The reality is that this point cannot be escaped from, as was said by the noble Lords, Lord Anderson, Lord Pannick and Lord Faulks, and the noble and learned Lord, Lord Hope. My noble friend Lord Purvis has again said that in an intervention. The problem is that this legislation is to be aimed at using damages to fund terrorism. That would be properly achieved, as the noble Lord, Lord Coaker, pointed out, by using the powers to freeze damages in a responsible way when there is an actual intention to use the damages to fund terrorism. It is exactly the point that the independent reviewer, Jonathan Hall KC, made: that it was dealt with by the existing legislation under the 2001 Act.

I cannot for the life of me therefore see why lowering the threshold achieves anything meaningful that is just, because it is unjust and the threshold under the existing legislation is the proper one to apply for something as serious as depriving somebody of damages or even freezing their damages. This legislation is weakening and altering other legislation in an unnecessary way, by introducing new powers that are objectionable, and therefore it ought to go.

The Minister has said that he is going to take this away and think about it. At this stage, therefore, I could not sensibly press my amendment and we would not ask for votes at this stage on clauses standing part. However, I really suggest that the Government are now under an obligation to consider whether any of these provisions are necessary at all or whether they wish to abandon them. In saying that, I beg leave to withdraw my amendment.

Amendment 105A withdrawn.

Clause 82 agreed.

Clause 83: Duty to consider reduction in damages payable by the Crown

Amendments 106 to 111A not moved.

Clause 83 agreed.

Clauses 84 to 86 agreed.

Schedule 15 agreed.

Clause 87: Legal aid for individuals convicted of terrorism offences

Debate on whether Clause 87 should stand part of the Bill.

Photo of Baroness Ludford Baroness Ludford Liberal Democrat Lords Spokesperson (Exiting the European Union) 6:30 pm, 18th January 2023

I will speak to the question of whether Clause 87 should stand part of the Bill, which is in my name. I am grateful to the noble Lord, Lord Pannick. I will also speak to the question of whether Clause 88 should stand part.

Many aspects of this Bill are problematic. This Committee on Monday debated one of the biggest aspects—the proposed foreign influence registration scheme—and has just been debating another on damages. I apologise for my unavoidable absence, which meant that I did not speak to the amendment in my name, but it was very adequately covered by my noble friend Lord Marks and subsumed in a very interesting global debate. I venture to suggest that no aspect of this Bill is so lacking in validity or is so stupidly—if I may say so and that word is not unparliamentary—counter- productive as the proposal to deny for 30 years civil legal aid to anyone convicted of a terrorist offence.

The first problem is that in their ECHR memorandum to the Bill, the Government claim that Article 7 of the ECHR, which bans retrospective penalties, is not breached because this is an administrative measure only. However, their argument involves an acknowledgement that the aim of this denial of civil legal aid is symbolic. They say:

“the aim of the measure is symbolic, in that the purpose of the restriction is to reflect the significance of the bonds with the State and society that are broken by the commission of terrorist offences.”

Should we be making law on such a basis? How can it be legal to make law which is to achieve a symbolic purpose? Surely a clash with the ECHR would beckon. Perhaps that is one that this current Government, unfortunately, might welcome.

The second problem is the rule of law challenge regarding access to justice. The report of the Joint Committee on Human rights cites the evidence from the Law Society:

“It is fundamental to the rule of law that our justice system rests on the clear principle that every judgment relies on the merits of the case brought before the court. We should not automatically be excluding people from legal advice and support because of unrelated convictions. To do so will diminish access to justice in our country and could affect the objectivity of our legal system.”

I suggest that that is a very important point. It is not as if the cohort to be affected is simply those convicted of serious terrorist offences, because it is defined broadly, catching some more minor and historic offending—indeed, some which might not be considered terrorist activity at all. It could include the offence of failing to disclose a suspicion that another person is fundraising or money laundering for terrorist purposes. As it covers any conviction, it could also affect individuals given less severe sentences, such as a referral order. It could also bar from accessing civil legal aid individuals convicted of an offence which has since been abolished. The Law Society highlighted to the JCHR that it could affect

“a person fleeing from domestic abuse who is prevented from accessing an injunction against their abuser, and protection for their human rights, because of a twenty-year old conviction for a terrorist offence.”

The ramifications are very wide. The former Attorney-General Sir Jeremy Wright said during the Second Reading debate in the other place:

“I do not think we have ever before contemplated determining someone’s eligibility for civil legal aid based on previous criminal behaviour.”—[Official Report, Commons, 6/6/22; col. 603.]

That was a previous Attorney-General. This sets out a serious question about the basis for these proposed provisions denying civil legal aid.

The third point is about the practical implications. These were raised by the current Independent Reviewer of Terrorism Legislation, Jonathan Hall KC. He said:

“Even symbolic restrictions may have practical consequences. No released terrorist offender is going to reoffend merely because their access to civil legal aid is restricted. But legal advice and assistance is relevant to securing help on housing, debt and mental health. A homeless terrorist offender, or one whose mental health needs are unaddressed, will present a higher risk to the public. There is a risk of unintended consequences.”

Do we want to seek to reintegrate people who have committed offences in the past? If we do, denying civil legal aid perhaps 20 or 30 years later for something like housing or debt problems does not seem the right way of going about it. As Jonathan Hall said, it is highly counterproductive. He said:

“A terrorist offender who goes back into society and lives quietly presents a rosier prospect than one who needs perpetual monitoring.”

Those are the practical consequences. This may be some great symbolic declaration, and I am afraid we are a bit too familiar with that sort of symbolism from this Government. In practice, it is counterproductive.

My fourth and last point is that it is counterproductive as it will create more bureaucracy. This was also highlighted by the Law Society. It is going to create large volumes of bureaucracy for the Legal Aid Agency. As far as I know, the Legal Aid Agency is under the remit of the Ministry of Justice. There are certainly other Ministry of Justice agencies affected too. I think before recess we discussed the probate service. I unfortunately have had experience of that myself in the last few years when I was bereaved. There are other agencies under the Ministry of Justice which are seriously struggling to deliver a decent service to the public. Is it a good idea in those circumstances to create more bureaucracy for another agency in the justice family?

It creates more bureaucracy because the Legal Aid Agency will have to confirm whether every applicant for civil legal aid has a previous conviction for terrorism and do lots of digging to find out information about this person. As the JCHR says,

“This may significantly increase the cost to the public purse, while it is unclear how this measure would contribute to public security and safety … Clauses 62-63 do contemplate a lesser form of legal aid, Exceptional Case Funding”, but this is, in the view of the Law Society

“a very bureaucratic process” which

“puts in place a significant obstacle to access to justice given the extra work and uncertainty”.

It is not much of a safeguard or a backstop.

All in all, I hope that I have persuaded the Committee that, on four grounds, the denial of civil legal aid to people because they have been convicted of a terrorist offence—I am not saying that they are good people—is against the rule of law principles and has practical consequences which are counterproductive, bureaucratic, costly, and so on. We are driven to the conclusion that their whole purpose, as with so much of what the Government seem to be doing these days, is to send some kind of symbolic message, but it does not withstand examination as having any merit at all.

Photo of Lord Pannick Lord Pannick Crossbench

I have added my name to the proposal from the noble Baroness, Lady Ludford, that Clause 87 should not stand part of the Bill. I am very grateful to her for so clearly setting out objections to the clause. I declare my interest as a practising barrister acting in public law cases, including representing clients on legal aid.

Noble Lords will know that civil legal aid has been much reduced in scope over many years by successive Governments of different complexions, and many of us regret that that is the case. But where civil legal aid is still available, it helps to ensure the protection of the vital legal rights of individuals and their families; for example, in relation to community care, debt where your home is at risk, homelessness, domestic violence and welfare benefits. It therefore follows that a proposal by the Government to exclude eligibility for legal aid, for reasons that are wholly extraneous both to the nature and merits of the litigation you are seeking to bring and to the financial needs of the individual, need to be very carefully scrutinised.

Under Clause 87, a terrorist conviction, which is a very broad concept indeed, leads to the exclusion of eligibility for legal aid irrespective of whether the court that sentenced the terrorist conviction considered the offence sufficiently serious to merit a lengthy custodial sentence or, indeed, any custodial sentence at all. I appreciate that there are some exceptions in Clause 87, but not by reference to the gravity of the terrorist offence. Clause 87 would also exclude eligibility for legal aid irrespective of the relevance of the terrorist conviction to the legal proceedings for which the individual seeks legal aid.

Can the Minister explain to the Committee why the Government think it is appropriate that a woman who has, some years earlier, received either a non-custodial sentence or a short custodial sentence for a terrorist offence should thereafter be precluded from obtaining legal aid if she claims to be the victim of domestic abuse or if she is homeless? How can that possibly be justified? The Government have previously said that the provisions are justified because they impose consequences for people who have broken their bond with society—that is the phrase used by the Government. Murderers, rapists and paedophiles are not excluded from legal aid for their housing or domestic violence proceedings because of their previous conviction, so how can it be justified to exclude on this absolute basis a person who has been convicted of a terrorist offence, irrespective of the gravity of that offence?

There is a reason why murderers, rapists and paedophiles are not excluded from legal aid and it is very simple: we recognise, and have done so since the legal aid system was instituted by the Labour Government in 1949, that legal aid is vital to the effective protection of basic rights for individuals. I would not normally associate the Minister with crude gestures, because he is far too civilised for that, but this provision is a crude gesture which is inconsistent with basic concepts of the rule of law. It is quite indefensible and has no place in a government Bill.

Photo of Lord Anderson of Ipswich Lord Anderson of Ipswich Crossbench 6:45 pm, 18th January 2023

My Lords, I have very little to add to the powerful speeches the Committee has already heard, but, as a supplement to what the noble Lord, Lord Pannick, has just said, I will remind the Minister of two other facts.

First, terrorist offences are by no means all at the top end of seriousness. Schedule A1 to the Sentencing Code includes offences such as

“inviting … support for a proscribed organisation” which may no longer be concerned with violence, as a number are not, and

“failure to disclose professional belief or suspicion about” the commission of terrorist offences by others. Those are offences on which the clauses bite.

Secondly, even for those offences which are serious enough to merit a period of imprisonment, recidivism rates for released prisoners are—I think in most developed countries, and certainly in this one—very much lower than the recidivism rates for ordinary crime. Professor Andrew Silke calculated in 2020 that the recidivism rate was around 3% for those who had committed terrorist offences and been released between 2013 and 2019.

I hope that the question the Minister will address is why that particular category of offence merits the removal of a right enjoyed by everybody else, including people convicted of murder, rape and the other most serious crimes that our law knows.

Photo of Lord Marks of Henley-on-Thames Lord Marks of Henley-on-Thames Liberal Democrat Lords Spokesperson (Justice)

My Lords, there is one simple principle that everybody has referred to in the debate: access to justice. I will be brief.

If the principle still stands that cases that are still in scope of legal aid with sufficient merit ought not to be restricted by lack of means to bring them—that principle underlies the availability of legal aid—it should not be undermined by the removal of legal aid from cases that have merit and ought to be brought. What is particularly invidious about these clauses is that the restrictions on the grant of legal aid apply to all cases that might be brought by an individual to whom the clauses apply. As has been pointed out, that is entirely irrespective of whether the cases have any connection with any past terrorist activity or whether they are good or bad, and irrespective of who might be affected by them; for example, members of an individual’s family might lose their rights in a housing case brought against a defaulting landlord where housing conditions were making that tenant’s children ill. These are blanket restrictions that are entirely inappropriate.

As the Committee will know, eligibility for legal aid is governed by a merits test in every case. If a case does not stand a reasonable chance of success, legal aid is not available. There is a financial eligibility test, which means that legal aid will be available only if an applicant is unable to fund litigation. These provisions are positively designed to deprive of legal aid a claimant who might otherwise secure it. A claimant who, by definition, has a good case, would otherwise be eligible on the basis of the merits test, and who cannot afford a lawyer would be deprived, under these provisions, of any legal representation before the courts, even though, as the noble Lord, Lord Pannick, said, the claimant’s case may be utterly irrelevant to any present or past wrongdoing and vice versa. As the noble Lord, Lord Anderson, pointed out, the gravity of the terrorist offence relied on may be low. That is a denial of access to justice which we simply should not countenance, and I suggest that the Minister should not countenance it either. It is, quite simply, wrong.

Photo of Lord Ponsonby of Shulbrede Lord Ponsonby of Shulbrede Shadow Spokesperson (Justice), Shadow Spokesperson (Home Affairs)

My Lords, I will speak briefly to Amendment 115 in this group, where we call for an assessment of the impact of Clauses 87, 88 and 89 to be published before they come into force.

It has been a powerful but relatively short debate. I shall not repeat the points that have been made, mostly by the noble Baroness, Lady Ludford, with her four grounds for opposing the clauses standing part. I wanted to reinforce the point made by the noble Lord, Lord Anderson, when he said that the gravity of the offence may be low. I can talk directly to that because, as a sitting magistrate, I have dealt with terrorist incidents that involved graffiti. The defendant in the case pleaded guilty to graffiti but, because of the nature of the graffiti, was charged under the Terrorism Act. We went ahead and fined that offender, but it was an offence under the Terrorism Act.

We have been relooking at Clause 87. Would that sort of example of a terrorist conviction be caught under the provisions, and would that individual who pleaded guilty to a terrorism offence of graffiti lose his right to civil legal aid in the decades to come?

Photo of Lord Bellamy Lord Bellamy The Parliamentary Under-Secretary of State for Justice

My Lords, perhaps I can briefly explain, first, the Government’s view of the principle behind the provision, then come later to the detail of how it operates. In the Government’s view, looking at it as a matter of principle, through their actions individuals who commit acts of terrorism seek to threaten and undermine the very democratic institutions that are at the heart of our democracy in this country. It is right that persons who have committed acts of terrorism against democracy should be subject to a different approach when it comes to granting civil legal aid. The different approach is, in this case, that these provisions do not entirely deprive a “terrorist” of civil legal aid, because exceptional case funding remains available. That is granted in around 75% of the cases in which it is applied for, so we have a safety net there. The practical effect of what is proposed is that those with the relevant terrorist convictions follow a different route from others. In other words, the automaticity of legal aid is somewhat different if you have committed a terrorist offence.

Apart from the question of principle—and that is the principle that the Government are advancing—the questions that have arisen in this debate essentially focus on two issues, or sub-issues. First, have we drawn the definition of terrorist offence too widely, catching very minor incidents, such as the graffiti incident put forward by the noble Lord, Lord Ponsonby, or the relatively minor terrorist offences to which the noble Lord, Lord Anderson, drew attention? Secondly, are there particular circumstances, of which domestic abuse is one, where there should be some exception to be made, and where it is going too far to have this blanket restriction, and there are obvious cases where there could be a fully justified grant of legal aid on the normal procedure, rather than forcing someone to go for exceptional case funding? On both those points, I shall undertake to reflect and to look at the underlying impact of these provisions—but the general principle is as I have outlined.

Photo of Lord Bellamy Lord Bellamy The Parliamentary Under-Secretary of State for Justice

The noble Lord, from a Scottish perspective, asks a relevant question. I shall have to take that under advisement and see, but I suspect that it is because there is a different legal regime in Scotland.

Photo of Lord Purvis of Tweed Lord Purvis of Tweed Liberal Democrat Lords Spokesperson (International Trade), Liberal Democrat Lords Spokesperson (International Development), Liberal Democrat Lords Spokesperson (Foreign and Commonwealth Affairs)

I look forward to the Minister’s letter. This Bill applies to everywhere—but, of course, there is separate legal aid legislation in Scotland, which I scrutinised when I was on the Justice Committee in the Scottish Parliament. If the case is so strong for the whole United Kingdom, I am not sure why this is. If he is writing to me, could he add something on the concern about whether this provision is consistent with the commitments in the Good Friday agreement? Does this provision also apply to Northern Ireland, with regard to the permanent removal for all those who previously were beyond the restrictions before the convictions were made, as in the Bill?

Photo of Lord Bellamy Lord Bellamy The Parliamentary Under-Secretary of State for Justice

As far as I know, it is not the intention to apply this measure to Northern Ireland, but I shall write to the noble Lord to confirm the Government’s position.

Photo of Lord Hacking Lord Hacking Labour

Many years ago, I used to sit on a legal aid committee. What worries me is the responsibilities that will be placed on all legal aid committees that will have this provision in front of them. One wonders, therefore, whether there should be special representation for the person applying for legal aid, and how that is going to be run. But this is a practical problem, and I ask the Minister to reflect on the practical side of the issue.

Photo of Lord Bellamy Lord Bellamy The Parliamentary Under-Secretary of State for Justice

My Lords, I shall certainly reflect on the practical side. This would be a decision for the director of casework at the Legal Aid Agency. The noble Baroness, Lady Ludford, rightly raised the question of the practical “bureaucracy” associated with the proposal, and we are working with the Legal Aid Agency to see how it can be most conveniently implemented, with minimum disruption.

Photo of Baroness Ludford Baroness Ludford Liberal Democrat Lords Spokesperson (Exiting the European Union)

My Lords, I shall be brief, because I know that noble Lords are waiting for the Statement. I thank the Minister for his reply. His first point was that the Government wanted to address the unique situation where, they contend, the people envisaged —those who have committed terrorist offences—have threatened to undermine our democracy. Other noble Lords who have contributed to the debate and who I very much thank, including the noble Lords, Lord Pannick and Lord Anderson, talked about other extremely serious offences such as murder, rape and, I think, manslaughter. Why just terrorism? Personally, I think that the offence of rape undermines the principle of our modern society, which should exist, about equality between men and women, the dignity of women and our rejection of abuse of women. Apart from very serious terrorist offences, I might judge a rapist on a more serious basis than someone who gets a fine for graffiti, for example, presumably in support of some proscribed organisation. Therefore, I do not think that the argument is very sound, if I may say so.

Secondly, I do not think it is sufficient to tinker at the edges. The Minister asks if we have drawn this too widely in covering minor terrorist offences as well as major ones, and whether a blanket restriction is inappropriate. I do not think that that will cut the mustard, quite honestly. We have a serious, fundamental issue here, which, quite apart from the practical consequences that I and others addressed, is one of access to justice, the rule of law and the integrity of our legal system. I am afraid I am not persuaded that the Minister has made the case for Clauses 87 and 88 to stand part of the Bill. I hope we may be able to come back to the matter because it does not seem to me very sound policy. I am not sure that the Minister thinks it is very sound, actually—I think he was struggling a bit there.

Clause 87 agreed.

Clause 88 agreed.

Photo of Lord Davies of Gower Lord Davies of Gower Lord in Waiting (HM Household) (Whip) 7:00 pm, 18th January 2023

My Lords, I advise noble Lords to keep an eye on the annunciator for further information regarding the resumption of the Committee.

House resumed.