My Lords, I am grateful for the explanation that these two groups have been combined. I spent some time today wondering why they could possibly have been separated, since they both concern the topics of a reduction in damages and freezing powers and damages. We are now dealing with all the amendments to Clauses 82 and 83 and the stand part objections to Clauses 82 to 86.
I have Amendment 105A in group two. It is what I might call an exemplar amendment, by which I mean that it is directed at one of the issues on which these provisions on the power to reduce damages under Clauses 82 to 86 are unacceptable. I say at the outset that I fully support the objections to any of these clauses standing part of the Bill, advanced by my noble and learned friend Lord Wallace of Tankerness, my noble friend Lord Purvis of Tweed and the noble Lord, Lord Pannick. I shall therefore speak at this stage on the amendments in group three as well, which relate to the reduction, freezing and forfeiture of damages proposed by Clauses 82 to 86.
I will make three points. First, these clauses are vindictive, because they are not clearly targeted towards achieving the end at which they are aimed but instead represent a far wider knee-jerk attack on the civil rights of those affected. Secondly, they are unnecessary, because existing statutory powers and legal principles are already in place to achieve that end. Thirdly, they would represent an insidious restriction of the rule of law and an unwarranted grant of effective immunity for government from legitimate action taken by citizens to recover damages for proven unlawful actions by government agencies.
I turn to my first point: that the provisions are not targeted at the end which they are intended to achieve. The aim of these provisions is described in the impact assessment. Based on the Conservative manifesto commitment to
“do all we can to ensure that extremists never receive public money”,
the impact assessment says that, to achieve this aim,
“civil damages reforms will address the risk of awards of large sums of damages paid out in civil court claims being used to fund and support acts of terror and whether damages are appropriate where a claim in a national security case concerns a claimant’s involvement with terrorism.”
The first of those aims concerns the use of damages awards, which we say can be addressed by freezing orders under existing legislation, to which I will turn in due course. But the second presupposes a link between the claimant’s conduct and the award of damages.
5.15 pm
That brings me to my Amendment 105A, which would restrict the ambit of national security proceedings under the Bill for the reduction of damages provisions. As drafted, the definition would encompass any proceedings where any party has at any stage presented any evidence or made any submissions to the court relating to national security, so it would apply whether the evidence or submissions were germane to the issues in the case or not. For example, where at an interim stage in proceedings the Government have resisted disclosure of government documents for a reason of national security and the parties have adduced evidence and submissions in respect of that objection, the proceedings would come within the definition and the provisions relating to reduction of damages would apply. In no sense are these provisions restricted to claims concerning a claimant’s involvement with terrorism; in that sense, they are simply not restricted to addressing the mischief at which the Government say they are aimed.
The Joint Committee on Human Rights made this point in trenchant terms at conclusion 35 of its report, which said:
“Damages should not be reduced based simply on factors identifying the claimant as unworthy of compensation or excusing the Government for actions that have been found to be unlawful. Before any reduction in damages should be made in the widely defined ‘national security proceedings’, the defendant should be required to satisfy the court that the damages are likely to be used for terrorist purposes.”
It is wrong in principle that damages should be reduced for a reason that is unconnected with the conduct for which they are awarded.
That brings me to my second point. Where the conduct of the claimant is in full or in part responsible for the Government’s unlawful conduct which gives rise to the award, the existing law gives the courts ample power to reduce or refuse any award of damages. The age-old Latin maxim—I apologise for quoting Latin—“ex turpi causa non oritur actio” prevents a wrongdoer from succeeding in an action which essentially arises as a result of that wrongdoing, and the maxim “volenti non fit injuria” bars a claimant who essentially willingly takes a risk of harm from recovering for the consequences of that risk-taking. Furthermore, the contributory negligence Act 1945 is not confined to negligence but gives the court power to reduce damages
“Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons … to such extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage”.
So where claimants bring damage on themselves, the courts have ample power already to reduce their awards.
Reprieve, in its excellent briefing on behalf of a number of organisations, for which I am grateful, made the point that these clauses would give the UK
Government protection against entirely legitimate claims brought to recover damages arising out of the UK Government’s complicity in torture. It points out that victims’ rights to redress for torture, which are enshrined in international law, would be restricted by these provisions. It cites the case of Jagtar Singh Johal, who has a case against the British Government arising out of their allegedly sharing intelligence with the Indian authorities which led to his detention and torture.
It also cites the case of Abdul Hakim Belhaj and Fatima Boudchar, which arose out of their detention and torture in Thailand, their rendition to Libya and Mr Belhaj’s further torture there; and to whom Theresa May publicly apologised in 2018 after years of civil litigation because she accepted that:
“The UK Government’s actions contributed to your detention, rendition and suffering.”
Claimants’ pursuit of such cases against the Government would be threatened by these provisions. That is the third point I make about the rule of law.
Turning to the powers to freeze or forfeit damages, Jonathan Hall KC, the Independent Reviewer of Terrorism Legislation, set out in his note on these clauses in May 2022 a detailed analysis demonstrating that the Government have ample freezing powers, appropriately circumscribed, under the Anti-terrorism, Crime and Security Act 2001. He is highly critical of the powers the Government propose to take, particularly of them being available on the basis of a “real risk” that they will be used for terrorism, rather than requiring it to be established that they are “intended to be used” for terrorism. He says that this is an unjustified lowering of the threshold—I agree. He concluded that
“this measure not only makes it easier to deprive individuals of damages to which a court has found they are entitled, but it passes an advantage to the authorities who are most likely to be the defendants in proceedings in which these measures are invoked.”
He went on to say that the measures risk
“the impression that if the government is sued, it will have a special advantage in keeping hold of monies which is not available to other unsuccessful parties in civil proceedings.”
That elegantly encapsulates, in modest terms, my third objection to these clauses. They are inconsistent with the principle that the Government are subject to the law and so are inimical to the rule of law. I therefore support the objections to Clauses 82 to 86 standing part of the Bill.
The amendments in the third group are alternatives to the stand part notices. I support Amendments 106 to 111. Amendment 106 introduces a requirement that for the duty to consider a reduction in damages to bite, the court would have to be satisfied that any damages awarded would be used for the purposes of terrorism. I have made the point that a principal objection to these provisions is the failure to include such a required connection between the damages and the use for terrorist purposes.
Amendment 107 would remove subsections (3)(a)(ii), (3)(b) and (4) from Clause 83, dealing with the claimant’s involvement in terrorism, short of the commission of a terrorist offence. They would be removed as a national security factor to be considered in reducing damages.
Amendments 108 to 110 are alternative amendments, which would remove subsections (4)(a), (4)(b) and (4)(c) respectively.
Amendment 111 enlarges the exclusion under Clause 83(6) in respect of damages awarded for breach of human rights, by adding
“or which it would award under section 8 of that Act had the claim been brought under it”.
That was an amendment recommended by the JCHR in paragraph 34 of its report, on the basis that:
“It is important that remedies for human rights violations are not reduced by the courts, simply because they have been identified through claims brought otherwise than under”
the Human Rights Act. That is the basis for the amendment proposed by my noble friend Lady Ludford.
I have Amendment 111A in this group, which adds another reason for not reducing damages—I note that an “(a)” should have been inserted before the human rights exception. My amendment would add the exclusion of a reduction in damages
“where such a reduction would be inconsistent with granting the claimant appropriate access to justice.”
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.