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.

--- Later in debate ---

[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.

--- Later in debate ---

[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.