Wednesday 18th January 2023
(1 year, 10 months ago)
Lords ChamberNational Security Act 2023 View all National Security Act 2023 Debates Read Hansard Text Watch Debate Amendment Paper: HL Bill 68-V Fifth marshalled list for Committee - (16 Jan 2023)
Lord Murray of Blidworth
Member's explanatory statement
This amendment clarifies that the power in clause 77(1)(b) relates to the onward disclosure of information provided to the Secretary of State under clause 72 or 73.
The Parliamentary Under-Secretary of State, Home Office (Lord Murray of Blidworth) (Con)
My Lords, Clause 77 allows the Secretary of State to make regulations about the publication and sharing of information provided through the foreign influence registration scheme. Amendment 105 clarifies that power at Clause 77(1)(b) and provides for the Secretary of State to make regulations about the onward disclosure of information registered or provided under the foreign influence registration scheme. The amended provision will enable the Secretary of State to provide clarity in respect of what data can be lawfully shared where necessary. I therefore ask the Committee to support this amendment. I beg to move.
Lord Carlile of Berriew (CB)
My Lords, we are being asked to approve something that relates to regulations that we have not seen, and we would ask the Government to review the way in which they are approaching the passage of this part of the Bill. We need to see not just draft practice or draft regulations but the regulations themselves.
The way in which this part of the Bill has been generated—and I do not want to repeat a discussion that we had two days ago—means that there is a great deal of uncertainty about what is intended. I hope that the flexibility that was indicated by Ministers on Monday will be extended to how such information is disseminated. I hope that we will get an undertaking that, before Report, and not on the day that Report begins, we will see the regulations and other documents that will indicate the architecture and detail of whatever parts of FIRS are going to be retained.
Lord Coaker (Lab)
My Lords, I agree with what the noble Lord, Lord Carlile, has just said, and I shall say a bit about it myself, in a few remarks on the government amendment. As the Minister said, the amendment clarifies the power in Clause 77(1)(b) and deals with the publication and disclosure of information provided by the Secretary of State under Part 3 on registration. Can the Minister say a little about what is not to be published? As the noble Lord, Lord Carlile, has just pointed out to the Committee, all this is to be done by regulations—and, I emphasise, done by regulations under the negative procedure.
Information provided by the Minister about foreign activity arrangements and foreign influence arrangements could, as the DPRRC said, be both politically and commercially sensitive. There will also be practical matters of significant political interest around these matters, given their relationship to national security. What sort of thinking is going on about what may or may not be published? Will those whose information is to be published be told in advance of publication and have any right of appeal? Again, as the noble Lord, Lord Carlile, said, why should Parliament not be able to have a more direct say in what sort of information should be published? That point was made by the DPRRC, which called for these regulations to be made, at the very least, under the affirmative procedure, to give at least some degree of scrutiny for this Parliament. I ask the Minister again to reflect on why negative procedure is being used for these regulations and not, at the very least, affirmative.
Lord Murray of Blidworth (Con)
I thank both noble Lords for those contributions. I can, of course, reassure the noble Lord, Lord Carlile, who will be aware that my noble friend Lord Sharpe committed in this House that a policy statement would be published ahead of Report.
On the points raised by the noble Lord, Lord Coaker, clearly the drafting of the regulations will necessarily follow the shape of the scheme, which is reflected in the final version of the statute. Therefore, it would not be appropriate at this stage to have draft regulations to consider. As to the appropriate method by which the regulations should be approved, it is the Government’s view that the negative procedure is appropriate for these minor and technical regulations, given what they do to enable the disclosure of information provided to the department in accordance with the scheme.
Therefore, for all those reasons, we submit that this is a minor and technical amendment that simply clarifies the purpose of the power, and that it is intended specifically to enable the Secretary of State to make provision through regulations for the onward disclosure of information registered under FIRS, and I therefore ask the Committee to support this amendment.
Lord Pannick (CB)
Perhaps I could press the Minister on this. He said that there will be a policy statement before Report. The noble Lord, Lord Carlile, was asking whether we can see the draft regulations. I entirely understand the Minister’s point that the final version of the regulations will need to await the passage of the statutory scheme, but why can the department not produce draft regulations which will inform discussion on Report?
Lord Murray of Blidworth (Con)
At the moment I fear I cannot commit to providing draft regulations. It may be that there are some, but it may be that to draft regulations prior to Report would be too time-consuming.
Lord Carlile of Berriew (CB)
I am sorry to intervene again, but does the Minister not see that this is illustrating the whole mistake in producing important legislation arising from amendments made in Committee in the House of Commons? If this part of the Bill had been drafted in the normal way, by parliamentary counsel with time to develop it and to consult, it would have been perfectly simple to produce draft regulations in time for Report in the House of Lords, which is nearly at the end of the legislative process. Is this not really just a guilty plea to having had insufficient time to prepare a Bill that came to this House based on an idea which was not even government policy?
Lord Murray of Blidworth (Con)
I note the noble Lord’s views on the topic, but we are where we are. Obviously, the department will take away what he says and endeavour to meet his reasonable request.
Lord Coaker (Lab)
I say to the Minister, before he sits down, that in view of what the noble Lords, Lord Pannick and Lord Carlile, have said, it is not satisfactory. We do not have a policy statement, we cannot see the regulations and, when the regulations are passed, the Government will pass them through the negative procedure. I would have thought, at the very least, given the worries and concerns that have been raised, that the affirmative procedure, as the Delegated Powers Committee said, in these circumstances in particular, might be something the Government would consider. I ask the Minister to reflect on that.
Lord Wallace of Saltaire (LD)
I hope the Minister will agree to draw the attention of his department to the debate held in this House last week on delegated legislation and to the very strong sense across the whole House, including on his Benches, that this House is meeting a Government who give us less and less information about regulations and prefer to leave more and more out of Bills so that Ministers may act as they are. This is an abuse of Parliament and should not be pursued further. That message is particularly important for a Bill such as this, and the Government should consider it.
Lord Murray of Blidworth (Con)
I have no doubt that the department will reflect on those points. We are all very aware of last week’s debate, in which the Leader participated.
The Parliamentary Secretary of State, Ministry of Justice (Lord Bellamy) (Con)
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—
Lord Marks of Henley-on-Thames (LD)
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.
Lord Bellamy (Con)
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.
Lord Anderson of Ipswich (CB)
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?
Lord Bellamy (Con)
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.
Lord Pannick (CB)
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.
Lord Faulks (Non-Afl)
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.
Lord Bellamy (Con)
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.
Lord Carlile of Berriew (CB)
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?
Lord Bellamy (Con)
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.
Lord Faulks (Non-Afl)
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.
Lord Hope of Craighead (CB)
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.
Lord Bellamy (Con)
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.
Lord Purvis of Tweed (LD)
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.
Lord Bellamy (Con)
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.
Lord Hope of Craighead (CB)
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?
Lord Bellamy (Con)
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.
Lord Pannick (CB)
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.
Lord Bellamy (Con)
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.
Lord Marks of Henley-on-Thames (LD)
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.
Lord Ponsonby of Shulbrede (Lab)
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?
Lord Bellamy (Con)
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.
Lord Purvis of Tweed (LD)
The Minister makes his case as to the general principle but, if that is so strong from the Government’s position, why does it relate only to England and Wales?
Lord Bellamy (Con)
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.
Lord Purvis of Tweed (LD)
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?
Lord Bellamy (Con)
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.
Lord Hacking (Lab)
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.
Lord Bellamy (Con)
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.
Baroness Ludford (LD)
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.