My Lords, I thank the noble Lords who have spoken. I very much appreciated the introduction by the noble Lord, Lord Marks. It was
very carefully explained and helpful to the Committee. The only thing that I will disappoint him with is that, having heard his Latin pronunciation, I have decided that mine is not as good and so will leave it out.
Some of my remarks will be more general but none the less will ask the Government for justification—with respect to the clause stand-part debates rather than the individual amendments. The noble Lord, Lord Faulks, is absolutely right to ask what the court should take into consideration when determining what the level of damages should be, if it is to reduce them, even down to nil. The Minister in the other place talked about care costs. That is my point. It would be interesting to know what the Government’s thinking is. My remarks are mostly not as specific as those of the noble Lords, Lord Marks and Lord Pannick, but raise some of the more general points that the Government need to justify these clauses and to clarify why we must agree them in their current form. I am very grateful to my noble friend Lord Hacking, whose stake in the ground gives me hope for the future and makes me realise that I am not alone when I stand here. I appreciate his support.
Amendment 105A, moved very ably by the noble Lord, Lord Marks, raised a number of important concerns around the provision—or reduction in provision—of damages in national security cases, including, as the amendment probes, whether a public body could avoid accountability by categorising proceedings as national security. As I said, I want to address the clause stand parts but also Schedule 15, to get some clarity around the Government’s thinking.
Before anybody reading this in Hansard categorises it in a way that it should not be categorised, I make it clear that none of us in this Committee or indeed in this Parliament wishes to see damages used to finance terrorism or in any way to allow individuals or groups to benefit from them. That is the motivation behind Clause 83 and one that none of us could disagree with. However, it is important to consider how we do that. As the noble Lord, Lord Pannick, said, it is particularly important for us to do this because many people read our proceedings and so it is important that they understand the debate. The Explanatory Notes point out in stark terms, and more clearly than the Bill does, that:
“Clause 83(1) provides that the duty applies where the liability of the Crown has been established”.
The JCHR report uses even more strident language. It says this applies where the Crown, Government or state—whichever you want to call it—has been proven in court to have “acted unlawfully”. We are talking about a situation in which damages are reduced in cases where the guilt of the Crown has been proven. That is no doubt why many of us will tread carefully in this area: the state has been proven guilty and we are passing legislation that would enable the Government to further reduce damages. This is difficult territory but, with respect to terrorism and damages, it is none the less territory that we need to go to. It is true that certain human rights cases are excluded—those brought under Section 7(1)(a) of the Human Rights Act 1998—but other cases are not. As I have said, even where the court has established that the state is in the wrong and
the state has been found guilty of wrongdoing with respect to an individual, and the clause applies, the state can seek to reduce those damages.
How can the Government reassure the Committee that this clause cannot be used to allow the state to avoid accountability? As I have said, of course public money should not be used to fund terrorism via the damages awarded but, as the noble Lord, Lord Marks, pointed out, the clauses seem to be drawn so broadly that potentially deserving victims may be excluded. How will the Government avoid that and ensure that the limitation of damages applies only to those who have committed wrongdoing involving terrorism, which I understand to be the point and purpose of the amendment of the noble Lord, Lord Marks, and the amendments of others?
We do not wish to see innocent bystanders caught up in a terrible situation to be excluded, but the current drafting of these clauses at the very least implies that, if there is any evidence related to any unspecified national security or intelligence services issue, the damages could be reduced or taken away completely. The Law Commission points out that this could lead to the state introducing national security evidence to avoid paying damages under the provisions of the Bill laid out in Clause 82(2)(a). Can the Minister detail for the Committee why these provisions are necessary? What additional powers do they make available to a court? Can a court not already take into account whether a claimant is deserving or not and whether there are concerns about the potential misuse of any such moneys or damages awarded to them? A point raised in the other place is that this must not be a slippery slope. Could the requirement to reduce damages from terrorism, because of our obvious horror, ever be extended to other areas where we are also horrified—for example, paedophile cases?
I have other points and questions for the Minister on Schedule 15 and other clauses in this group. Are these provisions based on experience from some existing cases, where the Government think this has happened and needs to be stopped, or are they being introduced in anticipation of it happening in the future? If they are not based on existing cases, what are the limitations of the existing legislation, on which the Government have evidence that they can present to the Committee to show why we need this new legislation?
In the other place, for example, the Government were asked what the problem is with existing legislation related to the financing of terrorism. We already have legislation that deals with reducing or removing damages that are used to finance terrorism. I think the noble Lord, Lord Pannick, also made that point, unless I misunderstood.
The freezing orders under Schedule 15 are possible for two years and can be renewed for a further period, before leading to potential forfeiture. Can the Minister explain what the term “real risk” means, for example in paragraph 1(4) of Schedule 15? If it is a standard of proof, as real risk is in the future, how will the court determine it? Will the court require actual proof to allow freezing orders to be made, or will it make a subjective judgment about something that may happen, the real risk that may occur, in the future?
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Can the Minister explain the standard of proof that will be required in forfeiture cases? Again, is it the threshold of real risk which would be used for any such order, or is there a different standard of proof between freezing orders and forfeiture? In terms of freezing orders and forfeiture, what cases have shown that there is a problem? What problems are there with the existing legislation that already deals with proceeds of crime and the ability of courts to freeze bank accounts if they believe that they are to be used for criminal purposes? What is the problem that the Government are trying to fix?
On the question of proof, we are asking the courts to look into the future: they will have to determine whether there is a real risk in the future. Who will help them come to that conclusion, and with what evidence? If it were the intelligence services, would having to present evidence to a court not incur a risk for the intelligence services?
Can the Minister also outline the other factors that would need to be taken into account in any potential reduction of damages? This is the point that the noble Lord, Lord Faulks, made. We have heard that the court will have to consider this notion of real risk in the future, but in what cases, if you thought that there was a real risk of the money being used for terrorism, would you not seek to stop all of it—in other words, forfeit the whole amount immediately, rather than for a short period or only part of it? There have to be other reasons that you would say that. If this money is to be used for terrorism, or there is a real risk of it being used for terrorism, why would the court not say it would have the whole lot? Why would you only take a little bit away or half of it away, and leave the other half, potentially to be used for the purpose that you froze the first part or half of the money?
This is where it gets to the point made by the noble Lord, Lord Faulks, because the Minister in the other place said that there may be other things to take into account—for example, care costs. The noble Lord, Lord Faulks, made this point better than me: what is it, apart from the real risk of terrorism, that a court would take into account to reduce the amount of damages to be forfeited to less than the whole amount? If you think that there is a real risk of terrorism, why would you not take the whole amount away straightaway, rather than leave half of it because the other half is needed for something else? If it is needed for something else, what is that something else? Again, that is the point, if I have understood it right, that the noble Lord, Lord Faulks, is making.
Are these clauses essentially the same for wrongdoing by the intelligence services and the Armed Forces? Is it the same framework within which they operate?
Finally, I will conclude by saying that we all wish to see those who commit terrorism prosecuted with the full force of the law. There is no difference between any of us on that. None of us wants to see damages used to finance terrorism, but the Government need to explain why the new laws are needed, what the gaps are in the existing legislation that they are seeking to fill, and whether some clarification and amendment to tighten these provisions—as in the amendment, for example, of the noble Lord, Lord Marks, or maybe
others—may actually improve the Bill. None of us seeks to destroy the Bill. What we are seeking to do is to improve and tighten it. As always in this Committee and in this Chamber, we wrestle with important principles, but even in this most difficult of areas, we must get the balance right between those of the state and those of the individual.