National Security Bill

Lord Marks of Henley-on-Thames Excerpts

Report stage
Tuesday 7th March 2023 Lords Chamber

Moved by

[Lord Marks of Henley-on-Thames]

168: Leave out Clause 84

[Lord Marks of Henley-on-Thames (LD)]

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.

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[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Bellamy) (Con)]

My Lords, I am extremely grateful to the noble Lord, Lord Marks, for his amendments, and to the noble Lord, Lord Pannick, for his comments. I hope the House will agree that the Government have been in listening mode throughout this Bill, and that we have in this particular instance moved quite considerably to deal with what the Government consider to be justified observations by your Lordships.

On the general point, the reforms are designed to protect the public, to deter those who seek to exploit our security services for compensation and to reduce the risk that court awards or damages may be used to fund terrorism—perhaps the most serious harm that can be perpetrated against society, going to its very fabric. The noble Lord, Lord Marks, asked me to restate the purpose of the clause and I think I have endeavoured to do so in those words.

On whether the Government can give any assurance that these provisions will not be invoked on the basis of

“unproven allegations … from a foreign state”,

I draw your Lordships’ attention to the fact that this is a power in the court; it is entirely in its discretion. No court is going to act on anything other than proper evidence, so in the Government’s view there is no risk of the danger to which the noble Lord, Lord Marks, referred, because this is a court process with rules of evidence and proper and fair procedures.

With those two preliminary observations, I come to the central point that was at issue when we discussed this clause in Committee. We have listened to the concerns expressed by noble Lords that the legislation needed to ensure that no national security case fell into scope where there was no connection between the Crown’s conduct and the terrorist conduct of the claimant. I can repeat before this House the assurance in the letter I sent noble Lords today, to which we have already been referred, saying that there needs to be a causal connection between the conduct of the terrorist and the reduction in damages.

As to what criteria the courts should apply when considering these issues, I know that noble Members felt the courts would require further guidance. In the Government’s view, the courts do not require further guidance; they are well able to interpret and apply this legislation, especially in light of the amendments we have proposed. The Government have every confidence in the court being able to discharge its functions under these provisions.

Our courts are well versed in taking a wide range of relevant factors into account in determining liability and assessing the level of damages. There are a number of common-law considerations to which noble Lords referred in Committee which may indeed provide some guidance. We do not seek to exonerate the Crown in respect of its own culpability; we aim simply to ensure that the terrorist conduct is properly taken into account when calculating quantum.

I turn to what I think are the only live amendments on this part, Amendments 174 and 175. Those amendments would apply to the Bill’s provisions whereby a court would consider the context in which the Crown had acted to reduce a risk of terrorism, but their underlying intention seems to the Government to be to markedly restrict those provisions. As I understand it, the amendments seek to limit the consideration of the court to where the Crown’s actions had been commenced —the provisions use the word “instigated”—and the conduct was required to have taken place overseas at the instigation of a foreign state.

While the Government accept that there are difficulties in preventing terrorism when the action concerned needs to be taken overseas, there are so many different facts and circumstances flowing from the claimant’s own actions that the proposed amendments would significantly limit the effect of these clauses. In the Government’s view, the courts ought to have complete discretion to apply the clauses as they stand; a very tight restriction both as to instigation and to the requirement that the instigated conduct took place overseas would limit them inappropriately and improperly restrict the discretion courts should have under the provisions.

The Government further feel that there is scope in these amendments for some confusion. The two aspects, an overseas element and instigation, seem to be couched in language reminiscent of an exclusive list, quite apart from the difficulty of deciding exactly what one means by “instigation”. In practice, the Government feel that the courts should be left to exercise their discretion, as they surely will, without the limitation proposed by these amendments. That is the Government’s position on the amendments proposed by the noble Lord, Lord Marks, and I hope that in the light of what I have said, he will consider not pressing them.

There is one amendment by the Government—Amendment 181—which is proposed to ensure family proceedings in Scotland and Northern Ireland are excluded from the freezing and forfeiture provisions that are also part of this part, as with those in England and Wales. That simply corrects an oversight in the original drafting.

Having set out the Government’s amendments and why we are unable to accept the amendments proposed by the noble Lord, I commend Government’s amendments and ask the noble Lord to withdraw his.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, I have heard the Minister’s explanation. It is right that the amendments that were between us were Amendments 174 and 175. Having considered his point on the court’s discretion, I am not sure that the difference between us is so wide as to justify my testing the opinion of the House on this occasion. I shall not move those two amendments and beg leave to withdraw the stand part amendment.

Amendment 168 withdrawn.

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Moved by

[Lord Marks of Henley-on-Thames]

180: Leave out Clause 88

[Lord Marks of Henley-on-Thames (LD)]

My Lords, we now move on to group four on legal aid. Again, I express our gratitude to the Minister, and to the noble Lord, Lord Sharpe, for his engagement with us on these provisions. Nevertheless, in spite of one welcome concession, to which I will turn, we oppose in principle the Bill’s proposals to exclude access to legal aid for those previously convicted of terrorist offences, however minor, subject only to the time and age conditions set out in the Bill. Legal aid, restricted as it might already be, is a right that we enjoy as citizens, and it is wrong simply to exclude that right for anyone convicted of a terrorist offence, however minor, whether or not the legal aid sought has any connection with the previous conviction. At least in relation to damages in the last group, the Government made the concession in Amendment 169, as we have heard, that, for the power to reduce damages to be exercised, there would have to be some connection between the past terrorist activity and the Crown’s wrongful conduct complained of in the proceedings. Here, no such connection is necessary before the exclusion of legal aid kicks in.

All we have from the Government in this group is an exception in Amendment 186 and its associated amendments for cases where an applicant for legal aid is the victim of domestic abuse. That is, of course, important, and it is welcome, but it is based on no discernible principle at all. If the victims of domestic violence should be entitled to legal aid, why not the victims of human trafficking, which, we observe, may well have led them into terrorist activity in the first place? Why not the victims of sexual offences? These two examples are the genesis of Amendments 186A and 186B in my name and the name of my noble friend Lady Ludford.

There are many examples of other cases where legal aid ought to be available, regardless of past convictions: family cases involving children, housing cases, Equality Act cases, and eligible cases of applications for judicial review. It is simply no answer for the Government to say that exceptional case funding remains available. The criteria for exceptional case funding are very restrictive. Broadly, they apply where convention rights are said to be infringed—principally in family, housing or benefits cases. There are very difficult hurdles to surmount before exceptional case funding is given, and there is no promise by the Ministry of Justice to make that funding more widely available.

In any case, the Government are trying to make legal aid more difficult to obtain for past terrorist offenders. It is a nonsense for them now to claim, and then rely on that claim, that it is not all that bad because exceptional case funding will make it easier for the very people they are trying to exclude from the availability of legal aid. So we put down Amendments 185 and 187 based on principle, and it is exactly the principle the Government conceded in the last group in relation to damages reduction: that legal aid would not be excluded in cases where there was no link—which we have called “no relevant factual connection”—between the past terrorist offence of which the applicant had been convicted and the current application for legal aid. I have invited the Minister and the Government to accept that principle. Were it accepted, we would not press these amendments to a vote because, although these clauses would still be unacceptable, much of the sting would be removed from them. In the letter from the noble Lord to which I alluded earlier, those amendments have not yet been accepted. I invite the noble Lord to reconsider that.

We also support Amendment 188 in the names of the noble Lords, Lord Pannick and Lord Carlile of Berriew, and my noble friend Lady Ludford, restricting the exclusion of legal aid to cases where an offender has been sentenced to more than seven years for the relevant terrorist offence. At least those are serious terrorist offences—that is not a limitation in the Bill as currently drafted.

I regret that we cannot see the benefit of Amendment 188A, put down yesterday by the noble Lord, Lord Ponsonby, on behalf of the Labour Party, after what must have been weeks of thought. It seeks a review of the impact of Clause 89 on offenders sentenced to a non-custodial sentence. The review sought is very limited and does not address the flawed principle of the proposal or its application. We will stick to our principled amendments, and I beg to move.

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[Lord Bellamy (Con)]

I am again extremely grateful to noble Lords for their interventions and, in particular, for the support for the principle behind Clause 89 expressed by the Official Opposition, subject to the point about minor offences, which I will come to in a moment.

As a quick reminder, Clause 89 narrows the range of circumstances in which individuals convicted of specific terrorism offences can automatically receive civil legal aid services. This includes individuals convicted of terrorism offences punishable with imprisonment for two years or more as well as other offences where a judge has found a terrorism connection. It is important to note that this clause modifies but does not exclude legal aid, because there is still the route of exceptional case funding, particularly if convention rights are in issue. One of the fundamental convention rights— I think this at least partially answers the point raised by the noble and learned Baroness, Lady Butler-Sloss—is the necessity for a fair trial, in Article 6. The exceptional case funding route is still available in that regard. Phrases such as “excludes”, “denies”, “debars” and “no legal aid support” are not an accurate summary of what this clause achieves.

[Lord Marks of Henley-on-Thames (LD)]

I am grateful to the noble and learned Lord for giving way, but is it not the case that no one gets exceptional case funding simply because they otherwise would not get legal aid? The point made by the noble and learned Baroness was that it is unfair, so you will not get a fair trial. However, that does not ground exceptional case funding —unless the noble and learned Lord has a different view of exceptional case funding from the rest of us.

[Lord Bellamy (Con)]

My Lords, there might well be found applications for exceptional case funding; approximately 75% of such applications are successful each year. In any event, exceptional case funding is still available.

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[Lord Bellamy (Con)]

It is not entirely irrelevant that exceptional case funding is always available for access to justice. That fact changes some of the comments that have been made about the restrictive nature of the Bill.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, there is a sharp division of opinion on the general principles here. I share the disappointment of the noble Lord, Lord Pannick, at the position taken by the noble Lord, Lord Ponsonby, on behalf of the Labour Front Bench, particularly in view of the way the Labour Front Bench spoke in favour of the principles we enunciated in Committee. I do not propose to press Amendment 180, but when the time comes, I will seek to test the opinion of the House on Amendment 185.

Amendment 180 withdrawn.

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Moved by

[Lord Marks of Henley-on-Thames]

185: Clause 89, page 60, line 17, leave out “F” and insert “G1”
Member's explanatory statement
This amendment is consequential on Lord Marks’ other amendment to this clause inserting a new Condition G1. Condition G1 will become Condition H if the amendment to be moved by Lord Sharpe of Epsom inserting a new Condition G is accepted.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, I wish to test the opinion of the House on Amendment 185.