I hope my right hon. Friend is wrong, but the Government have to consider it for exactly those reasons. It would be not only wrong but profoundly embarrassing if the United Kingdom were to find itself in that position.
I hope the Minister can clearly explain the difference I outlined, because the only difference I can see is that it could be argued that “acting reasonably” may be applicable to more circumstances and, therefore, offer arguably broader protection than “acting in the proper exercise of a function.” We have heard it argued that the current defence is not sufficiently legally certain but, from experience, legal certainty is an elusive quarry. The concept of reasonableness is very familiar to the courts in a variety of contexts. Anyone looking for absolute certainty in every case will not find it, because all cases are different and must be considered on their merits.
The second area I want to mention is amendments 8 to 12, in my right hon. Friend’s name, dealing with the potential reduction of damages in national security proceedings where a successful claimant has committed wrongdoing related to terrorism. It is worth noting in passing that such wrongdoing is not limited to convictions for criminal offences, and we need to understand from the Minister what level of wrongdoing in this context would suffice to put someone’s damages in jeopardy.
The operative measure is clause 58(3), which says
“the court must decide whether, in light of its consideration of the national security factors, it is appropriate for it to reduce the amount of damages”.
So we need to know what “appropriate” means—or should mean. Surely it should mean appropriate in all the circumstances of the case and in the interests of justice overall—it would be helpful if the Minister could confirm that—and that there is no presumption in favour of reduction, nor is there an instruction to reduce damages where the factors set out are present. That is how I understand the clause, but I would be grateful if he could confirm it.
Lastly, I wish to discuss amendment 38, which would remove clause 84 and stands in the name of the hon. and learned Member for Edinburgh South West (Joanna Cherry). That clause provides that, save for in very limited circumstances, civil legal aid would not be available in any case where it otherwise would be to those previously convicted of terrorism offences. My concern is that this is a very significant shift in the principles applicable to legal aid. At the moment, we award legal aid on the basis of the merits of the case and the financial circumstances of the individual applying, never before doing so on the basis of their previous character. This change would be very significant and it would need significant discussion, which, by definition, given the clock in front of me, it is not going to get today.
We need to be clear about what we would be saying if we made that change. We would be saying that whatever happens to that individual—however blatantly their rights may be infringed, in cases wholly unrelated to their previous conduct—the state will not assist them to defend their rights as it otherwise would, because of a previous criminal conviction. I am not sure that would be right and I am not sure that if it is, it makes any sense to specify only terrorism offences, rather than any other serious criminal offending. But whether it is right or wrong, we need to discuss it properly and not have it tacked on to this Bill, which is about something completely different, with very limited time to discuss it.