National Security Bill

Viscount Hailsham Excerpts

Report stage
Tuesday 7th March 2023 Lords Chamber

[Viscount Hailsham (Con)]

On the question of numbers and definition, what is the essential definition of exceptional case funding and how many cases have given rise to such a relief?

[Lord Bellamy (Con)]

I do not have the exact definition in front of me. It is a matter for the director of the Legal Aid Agency to decide. There is guidance on this, which applies in particular to cases of inquest and other areas where convention rights are at issue. I can supply my noble friend with further details in due course.

[Viscount Hailsham (Con)]

The number of cases would be very helpful.

[Lord Bellamy (Con)]

I do not have that information with me, but about three-quarters of applications succeed.

At the risk of disturbing the atmosphere of good will that has, to an extent, prevailed this afternoon, your Lordships would have expected me to explore with the Government whether there can be any further movement on this clause and I am sorry to say that, subject to the important exception for victims of domestic abuse in relation to family and housing matters, they adhere to the clause and respectfully present it to the House.

The amendments tabled by the noble Baroness, Lady Ludford, seek to remove these clauses from the Bill altogether. The Government’s position is that the measures are necessary to ensure that our limited resources for legal aid funding are not directed towards individuals who attack society and democracy and, through their actions, commit acts of terrorism that seek to threaten and undermine the very democratic institutions which provide the benefit of legal aid. It is right that access to legal aid should therefore be subject to the provisions of this clause. Again, I understand that the Labour Party, in principle, accepts that approach.

It is certainly possible to argue, as the noble Baroness did, that if this applies to terrorism, why does it not apply to murder, the abuse of women, drug trafficking and other offences? Certainly, one can always advance an argument about where you draw the line. The line is drawn here at terrorism because of its particular threat to our society and democracy; that is the Government’s reasoning. As I have just said, it is not a blanket ban on civil legal aid because the exceptional case funding route ensures—in compliance with our obligations under the convention—that legal aid remains available when it is most needed to ensure access to justice.

Amendment 188, tabled by the noble Lord, Lord Pannick, would limit the restriction to where an offender has been sentenced to a term of imprisonment of seven years or more. I acknowledge of course the noble Lord’s concerns, but the Government oppose this amendment on the following grounds. The Counter-Terrorism and Sentencing Act 2021, introduced following the Fishmongers’ Hall and Streatham Hill terrorist attacks, expanded the sentencing powers of courts in relation to terrorist offenders and created more restrictive provisions for terrorist offenders whose offences carry a maximum sentence of more than two years. So, the two-year benchmark is already baked into legislation, and the Government feel that it is the appropriate benchmark in this instance.

The noble Lord’s seven-year sentence proposal would mean that a number of quite serious terrorism offences would escape: for example, the breach of a TPIM notice. It would also—by reference to sentencing, as distinct from the statutory definition of an offence—create quite a subjective difference between offenders when one has got more than the other: one is a bit above and one is a bit below, perhaps because one has had more previous convictions than the other, or for whatever reason. So, the Government think that the two-year benchmark in existing legislation is logical, defendable and clear and that it should remain. So, with regret, the Government are unable to accept Amendment 188 in the name of the noble Lord, Lord Pannick.

Amendment 187, tabled by the noble Lord, Lord Marks, would make the restriction not apply if the terrorism offence of which the individual had been convicted had no relevant factual connection with their application for legal aid. We quite understand the noble Lord’s intention behind that amendment, but, again, the Government cannot accept it. As the noble Lord, Lord Ponsonby, said, this is a point of principle. The Government have considered with great care the proposal put forward and consider that the fact of a conviction for a terrorist offence carrying a sentence of more than two years is a ground for restricting the route by which legal aid is granted, so we are unable to accept this amendment.

However, we have tabled government Amendments 182, 183, 184 and 186 to create an exception so that the restriction will not apply where a terrorist offender is a victim of domestic abuse and is applying for legal aid related to family and housing matters within a relevant time period. That would include such matters as pursuing protective injunctions in child custody cases, as well as the loss of a home or homelessness. Again, the question arises: if you have extended it there, why do you not extend it somewhere else? The answer, I think, is that one has to draw a line somewhere. Those are particularly serious issues in society as it stands, and that seems to the Government to be a sound basis for making an exception. It is not our position that it is relevant or wise to create any further exceptions.