Amendment 168

Part of National Security Bill - Report (2nd Day) – in the House of Lords at 4:15 pm on 7th March 2023.

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Photo of Lord Marks of Henley-on-Thames Lord Marks of Henley-on-Thames Liberal Democrat Lords Spokesperson (Justice) 4:15 pm, 7th March 2023

My Lords, at the risk of being accused of buttering up the noble and learned Lord, Lord Bellamy, I should say at the outset that we are very grateful to him, his officials and the noble Lord, Lord Sharpe, for their positive engagement with us on the Ministry of Justice aspects of the Bill. There has been significant movement by the Government on the MoJ provisions, and on this group in particular.

While that is the reality, there remain significant differences between us on these provisions. Our position on the damages reduction clauses in the Bill is that the power to reduce or extinguish damages in a case against the Crown on the basis that the claimant has been involved in some terrorist wrongdoing in the past should never have been in the Bill. After all, the clause does not require the conviction of a terrorist offence. Ground 1 in Clause 85(3)(a)(i) is the commission of such an offence, but the alternative ground in sub-paragraph (ii) is nebulously described as

“other involvement in terrorism-related activity”.

That could be serious or it could be limited. After all, even wearing clothing that might suggest support for a proscribed organisation is a terrorist offence. I therefore invite the Government to give the House an assurance that the provisions on reducing damages will not be invoked on unproven allegations emanating from a foreign state that a claimant has been involved in some terrorism-related activity under the alternative ground in Clause 85(3)(a)(ii).

We have serious concerns about Clauses 84 to 88 being part of the Bill. Those concerns are that they are restrictive of civil rights, effectively denying or restricting legitimate claimants’ access to the courts and their right to a remedy; that they could enable the Government to avoid liability for damages in the face of justified claims; and that they would reduce accountability and limit the publicity for genuine claims of government wrongdoing.

These clauses risk undermining two important democratic principles: first, that everyone is entitled to enforce their rights in court and, secondly, that, where a legal right is breached, there is a remedy. Our central question is, why should the Government be excused from paying damages in a case where their liability to a claimant is proved? I invite the noble and learned Lord to explain how the Government answer that central question. Why, also, have the Government not confined this power to cases within Clause 88, where there is a risk of damages being themselves used for the purposes of terrorism?

In Committee, I drew attention to the cases of Jagtar Singh Johal, Abdul Hakim Belhaj and Fatima Boudchar, arising from the British Government’s complicity in torture and, in the latter case, detention in Thailand and rendition to Libya. Their cases and other cases of government wrongdoing might risk being threatened by this new power. However, since Committee, and in response to one of the main criticisms I and others levelled at this clause, the Government have laid Amendment 169. My reading of that amendment, which agrees with the Ministers explanatory statement, is that the court may consider reducing damages

“only if there was a connection between the terrorist wrongdoing and the conduct of the Crown complained of in the proceedings.”

Because it is complex, I invited the noble and learned Lord to write. Today, the noble Lord, Lord Pannick, and I have received a letter from the Minister containing that assurance. I hope he will forgive me if I read from it the relevant paragraph. He says, “On damages I am pleased to confirm your understanding of the intention and effect of the Government’s amendments to the scope of the Bill. The Government consider that they will mean that applications by the UK security services to reduce damages in national security cases will be possible only where there is a connection between the Crown’s conduct and the terrorist conduct of the claimant.”

That assurance, embodied in Amendment 169 and its consequential amendments, is a significant concession and answers an important criticism. Although the central criticisms of principle that I have outlined remain, we will not be pressing the stand part objections we have laid. Important among our concerns, as pointed out in Committee, is that the clause fails to set out criteria as to when and on what basis the court should exercise powers to reduce or extinguish damages. This was a matter extensively canvassed in Committee, but the Minister could really only say that the provisions were intended “to convey a message” that Britain should not be seen as a “soft touch” for terrorism. There was no guidance as to how and on what basis judges should exercise this new power. With the benefit of several weeks to consider the way in which the power is to be exercised, can the Minister please give us such guidance now?

I turn to Amendments 174 and 175 in my name and that of my noble friend Lady Ludford. At present, Clause 85(4) requires the court to take into account whether

“there was a limitation on the ability of the Crown to prevent” the wrongful conduct complained of, including on the basis that it occurred overseas or was carried out in conjunction with a third party. That formulation suggests that His Majesty’s Government are just too weak to control their own conduct, if wrongful, overseas, or in collaboration with a third party. That permitted excuse is inadequate. Our amendments would restrict permitting any such limitation on the Crown’s ability to prevent its own wrongful conduct to places where it was both carried out overseas and—not or—instigated by a third party.

In the noble Lord’s letter, to which I referred, he has indicated that the Government are not prepared to concede these amendments. I would nevertheless appreciate the Government’s further consideration of the present provisions as they stand, and of the effect of the amendments we propose. I look forward to his further consideration and his response, in the hope that we might get a little further if he comes back with something at Third Reading. I beg to move.