National Security Bill

Lord Pannick Excerpts

Committee stage
Monday 19th December 2022 Lords Chamber

[Lord Carlile of Berriew (CB)]

My Lords, I rise with some trepidation to disagree with these amendments, for reasons that I will try to give briefly. Amendment 8 and, indeed, all the others in the group are concerned with intellectual property. My entry in the register of interests discloses involvement with a strategy consultancy. In that role, we sometimes make ourselves available for the investigation of imposter frauds, for example. Many of those frauds can be connected with the attempted theft of intellectual property, not just by individuals and companies but by nation states. Some of those nation states are extremely big and powerful and have the capacity to make full use of the secrets they steal to become world leaders in the marketing of such goods.

I would suggest, with respect, that Amendment 8 shows a misunderstanding of the issue by the JCHR. Indeed, the reason why the proposed Clause 2(1)(ca)—Amendment 8—is not needed is that the reasons for this provision are well set out, in subsection (2)(b) in particular. This is for the protection of some very important and extraordinarily valuable intellectual property, which is created in, and in the interests of, this country. Indeed, if one looks at the other amendments, in particular those seeking to amend subsection (2), one has to think for only a moment to see the problem, and that these amendments defy that problem.

Let us take the example of a university computer science or physics laboratory where leading-edge research is being done or, to take something extremely topical, a vaccination laboratory where research is being done that could make a huge difference to humankind in general. As it happens, it could also make an enormous amount of profit for those creating the scientific inventions and, given the advantages they gain through taxation, for the Government.

It seems to me that the provisions in the Bill are absolutely needed to protect those scientists and inventors. There is a stage between the idea—which may come to someone in the bath or shower—and the production of a patent or copyright during which that idea is not protected by registration. These provisions precisely protect that intermediate area between the idea coming into the scientist’s head and its being registered and protected under the intellectual property legislation, which can be quite slow, very expensive and very complex.

So I respectfully suggest to those who have tabled these amendments that they are not needed and that, in fact, the Bill gives the right sort of protection precisely where it is needed, in the clause in question.

[Lord Pannick (CB)]

I respectfully disagree with the noble Lord, Lord Carlile. He may well be able to make a compelling case that there is a mischief that here needs to be addressed, but it is surely nothing whatever to do with national security, which is the subject of the Bill. The noble Baroness, Lady Ludford, is right that it is puzzling that there is no requirement in Clause 2 that it be established that the conduct in question is prejudicial to the safety or interests of the United Kingdom. The desirability of improving intellectual property law is really not an appropriate subject for a Bill of this nature.

Moreover, the noble Lord, Lord Carlile, says that if one looks at Clause 2(2)(b), that paragraph ensures the protection. I remind the Committee that all that Clause 2(2)(b) does is define a “trade secret” as information that

“has actual or potential industrial, economic or commercial value which would be … adversely affected if it became generally known”.

That is the loosest possible definition of a commercial trade secret. It is impossible to understand why matters of that sort should be dealt with in the Bill; indeed, that information may be enjoyed or owned by a foreign individual or company.

Trade secret law is very well developed. It includes remedies for damages and for injunctions. To include Clause 2 in the Bill would attract not just the considerable criminal penalties that the noble Baroness, Lady Ludford, referred to, it would invoke Clause 16, on the criminality of preparatory acts—

[Lord Davies of Gower (Con)]

My Lords, if this is an intervention, could the noble Lord make his point, please?

[Lord Carlile of Berriew (CB)]

The noble Lord asked to make an intervention, which is why I allowed him to, and I regret that he used the procedure of the House to make a speech. He will be free to make a speech if he wishes to do so.

[Lord Pannick (CB)]

My Lords—

[Lord Carlile of Berriew (CB)]

No, I am not letting the noble Lord in now. I am sure he will make a speech if he wishes to in a moment.

I will respond to the noble Lord’s intervention, if I may be allowed a moment to do so. His intervention completely misses the point. He seeks to impose upon us his definition of national security. I do not share his definition of national security. If there is theft by a major state overseas of important intellectual property that has yet to be registered and which could make a huge difference to this country, in my view that falls well within the definition of national security. Indeed, that is why the Government have chosen to include economic issues in the broad definition of national security. So I respect my noble friend’s intervention but I disagree with it. I shall listen very carefully to any speech that he makes—after I have sat down.

[Lord Pannick (CB)]

I am very sorry. I apologise to the noble Lord and the Committee; I thought he had sat down, and I was not the only Member of the House who thought so.

I have made my speech. The only point that I was going to add was that if we retain Clause 2, it includes the preparatory acts under Clause 16 and the powers of search under Clause 21. For all those reasons, I think Clause 2 should not be included in the Bill.

[Lord Wallace of Saltaire (LD)]

My Lords, the noble Lord obviously did not know that the noble Lord, Lord Carlile, had not sat down, but he perhaps ought reasonably to have known.

This exchange has focused my mind much more on the following question: part of the grey zone that we are dealing with is whether or not economic security is now part of national security. To a considerable extent, it is. I have not yet fully understood the relationship between the Bill and the National Security and Investment Act, passed last year, which deals with, among other things, some aspects of intellectual property. There may well be—but I am not sufficiently expert on it—a degree of overlap between that Act and what is proposed here.

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[Baroness Ludford (LD)]

Of course; the example in the JCHR report was of a French national in the UK—an ordinary person working in a bar or a bank who alerts the French intelligence authorities to a terrorist threat in the UK. It may or may not be hugely realistic, but that would be criminalised, which does not seem very sensible. The focus of Amendment 16 is to add a test of

“prejudicial to the safety or interests of the United Kingdom”,

always with the caveat that we want that test to get further attention and elaboration.

Amendment 21 concerns the offence of entering a prohibited place, which is punishable by up to 14 years’ imprisonment. Clause 5 is about accessing a prohibited place where

“the person knows, or ought reasonably to know, that their conduct is unauthorised.”

There is no requirement in this offence for any prejudice to the safety or interests of the UK. The JCHR suggests that it is more akin to an offence of criminal trespass—it will have nothing to do with national security, unless there is some sort of test of national security.

All the amendments I have spoken to today are about tightening up definitions so that we do not inadvertently catch what ought not to be criminalised behaviour and avoid any clash with human rights under the HRA and the ECHR.

[Lord Pannick (CB)]

My Lords, I share the concerns expressed by the noble Lord, Lord Marks, and the noble Baroness, Lady Ludford, about the breadth of Clause 3, particularly Clause 3(1), and the absence of any requirement that the defendant intends that the conduct will prejudice the safety or security or defence interests of the United Kingdom.

The noble Lord, Lord Marks, gave a practical example relating to Mossad which I will not repeat. I have a concern because of my professional interest as a practising barrister, and I would welcome advice from the Minister as to whether I will be committing a criminal offence under Clause 3(1) if I give legal advice to a foreign intelligence service in carrying out UK-related activities. Clause 3(1) refers to “conduct of any kind”; it is a criminal offence, punishable with 14 years’ imprisonment, for me to materially assist a foreign intelligence service in carrying out UK-related activities. My advice, of course, may be to say to that foreign intelligence service, “You can’t do this in the United Kingdom, it would be unlawful, and you should be aware of that”, but what are the potential defences if I am prosecuted? Under Clause 3(7), it is a defence for me to show that I am acting

“in compliance with a legal obligation under the law of the United Kingdom which is not a legal obligation under private law”.

I am very doubtful that my actions as a practising barrister fall within that provision. It is a defence, however, under Clause 3(7)(b)

“in the case of a person having functions of a public nature under the law of the United Kingdom”.

I do not have that; I am a mere practising barrister. Clause 3(7)(c) relates to some agreement with the United Kingdom; that does not apply.

The only other defence that I could offer when I am prosecuted at the Old Bailey for giving legal advice is the exemptions for legal activity which are in Schedule 14, but they seem to me—and I would be delighted to be corrected if I am wrong—to be exemptions confined to the provisions to which we will come which concern requirements to register foreign activity arrangements and foreign influence arrangements. We are not talking about that; Clause 3 is not concerned with any of that. My question to the Minister is please can I be told whether the legal advice that I give as counsel to a foreign intelligence service falls within the scope of Clause 3(1). I raise this not just because I am very concerned not to end up at the Old Bailey but because that demonstrates that Clause 3(1) is far too wide. It really needs to be redrafted to ensure that it addresses only matters of national security.

[Baroness Manningham-Buller (CB)]

My Lords, I understand the wish of the noble Lord, Lord Marks, to define and narrow this part of the Bill. To a degree, I have some sympathy with him. I would like to answer the Mossad point and make a second point. For Mossad to operate in the United Kingdom, there would be an understanding that it should declare its activity. Therefore, I do not think this problem would arise unless it deliberately chose to conceal it, because it would be seeking support and help.

The second point is that if we make it too narrow about what British interests are, we will exclude those foreign intelligence services—including some of our friends—who act against their own citizens in this country, which we would regard as against British interests in the broadest sense though it does not directly threaten British interests. There is a range of activity that this Bill seeks to capture which is not absolutely directed against the UK but may be directed against other people here and which is unacceptable.

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[Lord Murray of Blidworth (Con)]

As I sought to explain to the Committee, the Clause 5 offence can be committed only where a person engages in the specified conduct in relation to a prohibited place that is unauthorised, and they must know, or ought reasonably to know, that their conduct is unauthorised. It is specifically the point, as I hope I alluded to in my remarks earlier, that the Clause 5 offence is the summary-only offence, which is intended to preclude unauthorised entry to prohibited places to avoid the risk of national security consequences.

[Lord Pannick (CB)]

Can I respectfully ask the Minister to write to me before Report, and place a copy in the Library, with a fuller explanation of why I would not be committing a criminal offence by giving advice to a foreign intelligence service? The noble Lord asked what advice; the very simple example I gave was being asked by a foreign intelligence service to advise it whether certain conduct would be unlawful in this country. Would it be a criminal offence for me to advise it on that? Grateful though I am to the Minister for his expression of the hope that I do not end up at the Old Bailey, I would like greater comfort than that. He did perhaps go a little far in suggesting that that would be the view of all noble Lords, but I am grateful for his personal assurance.

[Lord Murray of Blidworth (Con)]

I will endeavour to make sure that that letter goes to the noble Lord as soon as it is prepared.

National Security Bill

Lord Pannick Excerpts

Committee stage
Wednesday 11th January 2023 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, I think we need to remind ourselves that the United Kingdom is a party to the torture convention. The amendment in the name of the noble Lord, Lord Purvis of Tweed, raised a red flag in my mind because, when I saw the word “torture” and the implication in his amendment that Clause 28 as it stands could extend to granting immunity for acts of torture, that seemed to me plainly contrary to our obligations under the torture convention.

It is worth remembering two things about that convention. The first is that all states parties to it are prohibited from authorising torture in any circumstance. It is also an unusual convention because it creates a universal jurisdiction; in other words, any state party which finds somebody who has committed torture within its jurisdiction, wherever he comes from, can prosecute that individual for the act of torture. The idea of granting immunity from acts of torture, which is what this clause seems to do, is a false idea because you certainly cannot do that with regard to other states parties to the torture convention.

It seems to me that Clause 28 is fraught with danger for that reason. Therefore, I very much support the amendment in the name of the noble Lord, Lord Anderson.

[Lord Pannick (CB)]

My Lords, may I add one footnote to the powerful speeches by my noble friends on these Benches? To confer blanket immunity may well have a counterproductive consequence, which is that the alleged victim may well be able to provoke the procedures of the International Criminal Court to be applied against persons in this jurisdiction. That would be extremely unfortunate.

[Baroness Manningham-Buller (CB)]

My Lords, I had not intended to say anything on this part of the Bill, not least because all these lawyers at various levels of leading counsel, pupil-master and so on do so much better than me. It seems to me that it is wrong in principle for members of the security and intelligence services to have immunity from the law.

I think that the noble Lord, Lord Purvis—the Minister may deal with this in his summing up—has confused the authorisations that are approved for CHIS activity involving criminality with what this part of the Bill seeks to do. I hope that in his reply the Minister will acknowledge the wide concern within the Committee, including from people such as me who have spent a career in the Security Service, and will consider an amendment to address some of these problems.

I quite comprehend that it is not necessarily easy to explain what the problem is that we are trying to address without revealing secrets but, again, I endorse the view that it would be helpful to hear what the ISC has thought on these matters. We heard from the noble Lord, Lord West of Spithead, at an earlier stage, that he and the ISC recognised that there was a problem that needed addressing. For my part, I am unable to support this as a solution.

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[Lord Sharpe of Epsom (Con)]

I see where the noble Lord is coming from and, yes, I accept that.

I return to the reasonableness defence in Section 50. While we consider that properly authorised activity to protect national security should be interpreted as being reasonable, the application of the reasonableness defence to UKIC’s activity is untested.

I come back to one of the earlier points from the noble Lord, Lord Carlile. I am not aware of any prosecutions, but he will know that I cannot comment on operational matters.

I also come back to the questions about the CPS. The fact that the CPS would not be obliged to prosecute offers little comfort to those carrying out legitimate work on behalf of His Majesty’s Government, who may still be subject to criminal investigation for carrying out authorised activities in the interests of national security. The Government consider that we should be able to offer legal reassurance to individuals carrying out vital work to support those interests.

I finish by reiterating that I am committed to continuing to work with the experts in this House, particularly the noble Lords who have tabled the amendments we have debated, and those in the other place to reach consensus on Clause 28. I thank all noble Lords for their patience as we move towards that shared objective.

I have noted the comments from the noble Lord, Lord Coaker, on timeliness but, at the moment, the Government cannot support these amendments and I therefore respectfully ask noble Lords not to press them.

[Lord Pannick (CB)]

Before the noble Lord sits down, could I see whether I have understood him correctly? Is he saying that an act of torture or sexual offences committed in support of another country’s services could not be a proper exercise of the functions of the Security Service—the SIS—or GCHQ? If he is, would it not be better to have that on the face of the Bill rather than simply as a statement from the Minister?

[Lord Sharpe of Epsom (Con)]

That is what I am saying. I will come back to whether it should be on the face of the Bill in due course.

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[Lord Faulks (Non-Afl)]

My Lords, I will not be disclosing quite as much as the noble Lord, Lord Wallace, did, but I will disclose that I am the chairman of the Independent Press Standards Organisation, and it is in that context that I want to add a few remarks. I am also grateful to the noble Baroness, Lady Jones, for her amendment giving those of us who are concerned—I am sure that I speak for the whole Committee—about the potential effect, no doubt unintended, that the Bill might have on press freedom. I do not want to rehearse all that has been very well set out by the noble Lord, Lord Black, and the noble Baroness, Lady Stowell. What is vital, of course, is to think what potential chilling effect this might have on journalism, particularly public interest journalism.

One point that is perhaps worth emphasising is how expensive public interest journalism is, how heavy it is on resources and how easy it is for editors to say: “Look, this is far too difficult; you may not get what you want, it is expensive, and what is more it may be unlawful.” If you look at Clause 3(2) of the Bill, and are thinking about running a story to do with armaments, as the noble Baroness, Lady Stowell, said—I think that she was probably referring to the Snatch Land Rover issue; she confirms that that was the case—then you might well say to yourself that this is highly risky, because we are going to run a story about something which would be of interest to a foreign power with which we might be in conflict. It is just that sort of thing which this, in the absence of some sort of tailored amendment to the Bill, would have the unintended consequence of not just putting a journalist at risk but of somebody simply saying that they are not going to do the story or spend money on this.

So I hope that the Minister, who is otherwise preoccupied at the moment, may be able to consider these matters carefully, knowing how important public interest journalism is. I should say that I received some briefing from the Guardian. Although IPSO regulates 97% of those publications that we receive, it does not regulate the Guardian, so this does not in any way influence the job that I have.

[Lord Pannick (CB)]

My Lords, I share the concerns which have been expressed in this debate about the breadth of Clauses 29 and 30, particularly in relation to public interest journalism, as expressed by the noble Lords, Lord Black and Lord Faulks, and the noble Baroness, Lady Stowell.

One of the problems is that Clause 29(2)(c) ensures that the foreign power condition applies merely because there is

“other assistance provided by a foreign power”.

That is an incredibly broad definition. The provision of information would potentially fall within the scope of that definition. There is also the concern, which has been explained by the noble Lords, Lord Marks and Lord Wallace, that the foreign power definition in Clause 30(1)(e) extends to a political party—not just to political parties generally but, as Clause 30(2) makes clear, to any party which has any member of the Government in a coalition. So it extends very broadly, particularly in Europe, to any number of political parties.

The noble Lord, Lord Marks, made the point that one of the mischiefs here is that there is no attempt to exclude governing parties in our allies—NATO countries, Australia, New Zealand and Five Eyes countries—which is quite extraordinary. The anomaly is even greater, because if the Committee looks at Clause 30(3)(a) there is a specific exclusion for any political party which is

“a governing political party of the government of the Republic of Ireland”.

I would be very grateful if the Minister could explain why there is that specific exclusion —not that I have anything against the Irish—but not for any political party that operates in our other allies, particularly NATO allies. The anomaly is even greater, because it is not beyond the realms of possibility that, in the next few years, Sinn Féin may be a political party that is part of the Government of the Republic of Ireland, possibly in a coalition.

None of this makes any sense. Could the Minister please clarify, explain and reflect on whether this is really a sensible way to proceed?

[Lord Purvis of Tweed (LD)]

My Lords, I wish very briefly to follow that excellent point, because the Government have not been clear in ironing out the anomalies in the definitions. The noble Lord, Lord Pannick, and others are absolutely right in agreeing with the noble Baroness, Lady Hayter, who raised this point.

The reality is that a junior party in a coalition Government, which might be under some form of political arrangement that is different from ours and which could be one of our sister parties, could be considered to meet the “foreign power condition” in the Bill. A person’s conduct could then fall foul of Clause 29(5) if that person

“intends the conduct in question to benefit a foreign power.”

I would like to benefit my liberal sister parties’ prospects in other countries by working with them on a philosophical basis, and vice versa. That is why we exist as political parties. The Bill would consider that conduct to be intending to benefit a foreign power. That surely cannot be right for an open democracy when we want to encourage political parties.

Not only that: before the aid cuts, we were spending considerable sums of money through the Westminster Foundation for Democracy to develop political party links. So we have on the one hand the Government funding the WFD, encouraging and in fact paying and providing support to parliamentarians to work with sister parties, and on the other saying under the Bill, “By carrying out the work that we’re funding, you’re also aiding a foreign power”, which is nonsense. At the same time, there is a concern that, under the definition in Clause 30(1)(c), a foreign public sector broadcaster, for example, could be considered a foreign power under the Bill, so any journalists working with, say, CBC in Canada would fall foul of the Bill because that would be an “authority” of a foreign power, unless specific changes are made.

There is also the point that my noble friend Lord Marks made. Part of the anomaly is that the Bill creates too many difficulties for journalists of state broadcasters to operate and potentially has a chilling effect on sister party collaboration, which the Government themselves seem to promote and support, but at the same time it does not include private sector enterprises that, although they are not formally an agency or authority of a foreign Government and a foreign Government is not responsible for their affairs, could include a private sector sovereign wealth fund of a state, which might or might not be listed on a stock exchange and which may or may not, in effect, be a private sector arm of the interests of a foreign power. So any interaction we have through the strategic interests of a wealth fund of a Gulf state, or of a private sector enterprise that may or may not be established and fully operational in the private sector but which our intelligence agencies say is, in effect, an arm of or has some interaction with the Communist Party of China, is not covered.

The anomalies in the “foreign power condition” need to be ironed out. These amendments will help in that way. I hope the Government will be able to provide greater clarification.

National Security Bill

Lord Pannick Excerpts

Committee stage
Wednesday 18th January 2023 Lords Chamber

[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.

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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.

[Lord Pannick (CB)]

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.

[Lord Purvis of Tweed (LD)]

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.

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[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.

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[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.

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[Lord Pannick (CB)]

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.

National Security Bill

Lord Pannick Excerpts

Report stage
Tuesday 7th March 2023 Lords Chamber

[Lord Pannick (CB)]

My Lords, I added my name to some of the amendments tabled by the noble Lord, Lord Marks. I echo his thanks to the noble and learned Lord, Lord Bellamy, and the noble Lord, Lord Sharpe, for their constructive engagement with us on the damages clauses. I too am satisfied that Amendment 169, in particular, and the assurance that the noble and learned Lord gave in writing—which I hope he will repeat on the Floor of the House—address the main concern. I am impressed also by the eloquent point he made in Committee, that these clauses simply confer a power, or discretion, on the court, and I am confident that the courts will exercise those powers fairly and sensibly.

[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.

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[Lord Pannick (CB)]

My Lords, I have added my name to amendments in this group. I declare my interest as a practising barrister, sometimes representing clients on legal aid. The harmony that has broken out in this afternoon’s debates does not apply to this group, although I do thank the Minister, the noble and learned Lord, Lord Bellamy, for engaging with me and others on this subject and for tabling an amendment that mitigates, to a limited extent, the mischief of Clause 89.

I will first cite some history. At the legal aid Bill’s Second Reading on 15 December 1948, the Attorney-General, Sir Hartley Shawcross, told the House of Commons that civil legal aid was so important because it would

“open the doors of His Majesty’s courts and make British justice more readily accessible to the great mass of the population who hitherto have too frequently, I am afraid, had to regard these elementary rights—as they ought to be—as luxuries which were beyond their reach”.—[Official Report, Commons, 15/12/1948; col. 1223.]

Sadly, the scope of legal aid has been much reduced in recent years by Labour Governments, Conservative Governments and by the coalition Government. But, where civil legal aid is still available, it remains a vital legal protection for individuals and their families. It is a noble scheme that goes some way, although not far enough, towards ensuring that a lack of financial resources is not a bar to access to justice. So it is objectionable in principle for the Bill to propose to remove eligibility, even subject to exceptions, for a category of people who are defined simply by the nature of the criminal offence of which they have been convicted.

Clause 89 is simply indefensible for three main reasons. First, it will apply irrespective of the seriousness of the criminal offence of terrorism of which the individual is convicted, so long as that offence is capable of being punished by up to two years’ imprisonment. The noble Lord, Lord Anderson of Ipswich, who cannot be in his place, pointed out in Committee that terrorism offences include such matters as

“inviting … support for a proscribed organisation”

and

“‘failure to disclose professional belief or suspicion about’ the commission of terrorist offences by others”.—[Official Report, 18/1/23; col. 1868.]

Now such criminal conduct is wrongful, but it may, and often does, lead to a short custodial sentence or even a community sentence. But, under Clause 89, any such conviction excludes a person from civil legal aid, subject to narrow exceptions, for 30 years, whatever sentence the court thinks is appropriate in the circumstances of the individual case. This is indefensible, and it is particularly so when, as the noble Lord, Lord Anderson of Ipswich, also pointed out, the recidivism rates for terrorist offenders are very low indeed: he gave the figure of 3%.

The second reason that Clause 89 is simply indefensible is that there is no exclusion from civil legal aid for those convicted of murder and rape, people who may receive life sentences and who normally receive very serious sentences for their offence. To single out terrorist offences, and to do so irrespective of the gravity of the individual offence, suggests to me, and I may not be the only one in this House, that the Government are more interested in political gestures than they are in pursuing any coherent principle.

The third reason that Clause 89 is simply indefensible is the one given by the noble Lord, Lord Marks: it will exclude persons from civil legal aid in cases which have no connection to the offence of terrorism of which they were convicted. A woman may be convicted of giving support to a proscribed organisation and receive a short custodial sentence or a community sentence, but 10 or 20 years later, she may be evicted, or face eviction, from her flat and face homelessness. The idea that she should be denied civil legal aid—and denied eligibility for civil legal aid—because of the terrorist conviction frustrates the very purpose of civil legal aid in a civilised society. Let us suppose the terrorist offender is beaten up in prison by prison officers—it does happen. Should he be excluded from eligibility for civil legal aid if he otherwise satisfies the relevant criteria? The idea that this proposal is brought forward by a Ministry of Justice defies credulity.

The only question in my mind is how best to remove or dilute the stain of Clause 89, and the Marshalled List contains a number of possible amendments, to some of which I have added my name: that Clause 89 should not stand part of the Bill, that it should be confined to those who are sentenced to seven years’ imprisonment or more, or that it should be confined to legal aid for a matter connected to the terrorism offence, which is the amendment preferred by the noble Lord, Lord Marks.

I am very sorry indeed that the Labour Front Bench is unwilling—as I understand it; I would welcome correction from the noble Lord, Lord Ponsonby—to support any of these amendments, and has itself tabled what can only be described as a weak amendment, Amendment 188A, which would require a review within 60 days of Clause 89 coming into force. The noble Lord, Lord Ponsonby spoke eloquently about Clause 89 in Committee; he is far too sensible and fair-minded to think personally that Clause 89 makes any sense. I assume, although I welcome correction, that the Opposition in the other place fear that they will be accused of being soft on terrorism if they support any of the substantive amendments. I think we all know what Sir Hartley Shawcross or the great Labour Home Secretary, Roy Jenkins, would have said about that.

If, as I hope, the noble Lord, Lord Marks decides to test the opinion of the House on one of these amendments, he will certainly have my support.

[Baroness Ludford (LD)]

My Lords, I can speak briefly because my noble friend Lord Marks and the noble Lord, Lord Pannick, have spoken forcefully on this matter. The amendments to remove Clauses 89 and 90 are in my name and signed by the noble Lord, Lord Pannick. I spoke at some length on this in Committee, and I believe it is a matter of principle—a very flawed principle, as the noble Lord, Lord Pannick, said—to bar anybody with a terrorism offence, however minor, from being granted civil legal aid.

The noble and learned Lord, Lord Bellamy, admitted in Committee that this proposal was “symbolic”— I think he said it more than once. In other words, it is gesture politics. The hope must be, as the noble Lord, Lord Pannick, just said, to paint those of us opposing it as somehow soft on terrorism, but I put it to the Government that they could be regarded as soft on murder, rape and sexual offences. They are apparently content that major offenders against women, of the likes of Wayne Couzens and David Carrick, variously guilty of abduction, rape and murder, could one day be eligible for civil legal aid, but not someone who is a minor offender under terrorism laws. If they try to throw at us in the Daily Mail that we are soft on terrorists, the Government ought to be prepared for a counter charge that they are soft on murderers and rapists. Given the huge public concern in recent weeks, months and years about the volume and the type of offences against women, I do not think that the Government are going to come out of this well.

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[Lord Ponsonby of Shulbrede (Lab)]

My Lords, we in the Opposition are accepting the principle that terrorism is uniquely terrible and needs to be dealt with in that way. However, my amendment calls for a review of the impact of this on certain lower-level cases.

[Lord Pannick (CB)]

The noble Lord is being patient, but what is there to review? Why has he not put down an amendment that simply excludes from this objectionable clause those who are convicted only in circumstances that lead to a non-custodial sentence? That surely is the logic of what he is saying. Why do we need a review?

[Lord Ponsonby of Shulbrede (Lab)]

We need a review because we do not know what the impact is unless we have looked at the data. It seems to be as simple as that.