National Security Bill

Baroness Ludford Excerpts

Committee stage
Wednesday 18th January 2023 Lords Chamber

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

[Baroness Ludford (LD)]

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.

--- Later in debate ---

[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.