Clause 62 - Legal aid for individuals convicted of terrorism offences

National Security Bill – in a Public Bill Committee am 3:15 pm ar 8 Medi 2022.

Danfonwch hysbysiad imi am ddadleuon fel hyn

Photo of Jess Phillips Jess Phillips Shadow Minister (Home Office), Shadow Minister (Domestic Violence and Safeguarding) 3:15, 8 Medi 2022

I beg to move amendment 61, in clause 62, page 44, line 21, leave out “F” and insert “G”.

This amendment is a paving amendment for Amendment 60.

Photo of Rushanara Ali Rushanara Ali Llafur, Bethnal Green and Bow

With this it will be convenient to discuss the following:

Amendment 60, in clause 62, page 45, line 3, at end insert—

“(7A) Condition G is met where the offender is seeking legal aid for the purposes of—

(a) pursuing a civil order, where the purpose of the order is to protect a victim of domestic abuse, or

(b) participating in family court proceedings, and where the offender is a victim of domestic abuse.”

Amendment 62, in clause 62, page 45, line 42, at end insert—

““domestic abuse” has the same meaning as in the Domestic Abuse Act 2021;”

This amendment provides a definition of “domestic abuse” for the purposes of Amendment 60.

Clause stand part.

Clauses 63 and 64 stand part.

Photo of Jess Phillips Jess Phillips Shadow Minister (Home Office), Shadow Minister (Domestic Violence and Safeguarding)

The second element of part 3 of the Bill would prevent people with terrorism convictions from receiving civil legal aid—it is important to stress that it is civil, not criminal. Again, the breadth and consequences of such a broad-brush approach cause me some alarm. Our amendments would address some of those concerns.

Once again, I am looking at the issue through a gendered lens and considering the impact on domestic abuse victims and their children, who are directly referred to in my amendments—amendment 62 refers to the Domestic Abuse Act 2021. My right hon. Friend the Member for North Durham commented about things being dropped and changed in Committee and during Commons stages, and the passage of the 2021 Act was a good example of where that was done completely and utterly. Obviously, I still think that more things should have been included in that legislation, but what we sent to the other place was the work of everybody in Committee. My amendment 62 draws directly on the definition of domestic abuse contained in that Act.

The clause suggests that restrictions disallowing offenders from accessing civil legal aid will last for 30 years for adult offenders and 15 years for youth offenders, and will apply to any person convicted, irrelevant of the severity of the crime or the sentence imposed for the offence. Those restrictions apply to terrorists who commit the most heinous of mass murders, and also to those who participate in crimes that receive non-custodial sentences, such as encouraging terrorism, disseminating publications or downloading terror manuals. It is an automatic restriction—a court has no discretion to apply or revoke it in any circumstances. The restrictions do not require that the seeking of legal aid be related to the terrorist conviction of the claimant, or specify what the purpose of the civil proceedings might be. It is a blanket restriction covering any civil proceedings; it could be absolutely anything in the civil courts.

The disproportionate and oppressive nature of the drafting becomes stark when we place it in the context of the types of civil cases that legal aid can be needed for. People find themselves in civil proceedings and family court proceedings, and in need of legal aid support, for a multitude of reasons, with housing issues, debt problems and domestic abuse being just a few examples. It is a realm that not everyone may know much about, but anyone who has worked in domestic abuse for as long as I have realises the role that civil and family cases, and the courts, play in people’s lives and their ability to live in the free and safe society that the Government have claimed that they are trying to protect all the way throughout our consideration of the Bill.

For example, a victim of domestic abuse might need legal aid to help her to seek an injunction against her abuser. Non-molestation orders protect a victim or their child from being harmed or threatened by their abuser, while occupation orders decide who can live in a family home or enter the surrounding area. Such injunctions protect victims and children in particular. They protect women. They save women’s lives—huge improvements are needed in how they are served and upheld, but that is not an argument for today. Funnily enough, I noticed on BBC News today that the Government were heralding some of the changes in domestic violence protection orders in cases of domestic abuse, which are usually handed out in a civil environment, and how they were helping to prevent domestic abuse. That was this morning’s news. These injunctions are not some unnecessary add-on or bonus; they are legal measures that protect women from violence and are crucial for the type of society we desire to build and protect.

Under the Bill as it stands, a domestic abuse victim who received a non-custodial sentence for a terror offence two decades previously would not be allowed to access legal aid to seek a protective injunction against an abusive partner. Another example is in the family courts. It is well documented that abusive partners use the family courts to continue their abuse. They weaponise the process, dragging their victims and their children back time and again. Under the Bill, a domestic abuse victim convicted two decades previously would not be allowed to seek legal aid for such family law proceedings involving an abusive partner. She might lose her children to a man who has beaten, abused and raped her because she was unable to access any advocacy.

I am sure that the Government will argue certain claims can be made through the exceptional case funding process but, speaking as somebody who has tried, the bureaucracy and inaccessibility of the process, and the uncertainty created, mean that my fears are not allayed in the slightest. Furthermore, the ECF application process is usually done on a pro bono basis, which is something many solicitors—hon. Members will have seen the news recently—might not currently be in a position to do. The ECF does not provide the answer to my concerns.

Let me make a broader point. Funnily enough, when I talked to my husband about some of this, he said, “Oh, you know, don’t be a terrorist if you want access to legal aid”—that was partially his attitude.

Photo of Jess Phillips Jess Phillips Shadow Minister (Home Office), Shadow Minister (Domestic Violence and Safeguarding)

I am not sure he would agree with the Minister on many other things, but maybe we will get the two of you together. I am sorry to slag off my husband in here—although, actually, it is the perfect place, as he cannot do anything about it, can he?

This is incredibly naive. The reality is that anyone who has worked with female offenders, as I have for many years—this is why we ran their services out of Women’s Aid—recognises that the pathway to offending for the vast majority of women offenders is an abusive man.

So, yes, “Don’t be a terrorist,” is a great thing to say if your abuser is a terrorist. It is very easy to say that when the person who has complete and utter control over your every waking minute is also involved in something you do not necessarily agree with. For example, say that you made a phone call on his behalf. It is easy for everybody to sit and say, “I wouldn’t do that, because I am not a terrorist,” but we all might if we were terrorised. The fundamental thing we should all seek is to prevent that, and to prevent the idea that somebody might then fall into terrorism. The actions in the Bill mean it is much more likely that women in these cases will end up stuck with a terrorist making them be a terrorist, rather than being able to escape them.

There is a broader point to highlight about the connection between domestic abuse and terrorism, because of how commonly terrorists are also abusers in a domestic setting, and also because of female offender patterns, which I have already alluded to. Research carried out by the Home Office in 2021 showed more than a third of suspected extremists referred to the Government’s anti-radicalisation programme Prevent had experienced domestic violence. The police said that of 3,045 people referred to the scheme in 2019, 1,076 had a link to domestic abuse as an offender, victim or both. The male referrals were more likely to be offenders; the female referrals were more likely to be victims. As the national co-ordinator for Prevent, Detective Chief Superintendent Vicky Washington, said:

“This initial research has resulted in some statistically significant data which cannot, and should not, be ignored. Project Starlight has indicated a clear overrepresentation of domestic abuse experiences in the lives of those who are referred to us for safeguarding and support. It is absolutely vital that we use this information to shape what we do, and strengthen our response across all of policing, not just in counter terrorism.”

In short, tackling domestic abuse is critical to tackling terrorism. Any legislation, such as the current draft of this Bill, that undermines our ability to protect domestic abuse victims and stop domestic abuse perpetrators does nothing for the security of our country. Our amendments seek to address the breadth of the current drafting, and to tackle the issues and protect victims of domestic abuse.

I have two further points. Many people have raised concerns about the removal of legal aid. They argue that these clauses are counterproductive in protecting the public, due to the impact of effective rehabilitation. I have a deep concern for individuals who, years after a conviction and successful rehabilitation, find themselves in difficulty, facing homelessness, or are victims of abuse, or are in debt. Okay, if someone has been convicted of something to do with terrorism, they get what they deserve, but there are people working for organisations such as HOPE not hate who have completed rehabilitation pathways and who have then been used to protect the lives of people who work in this building, lest we forget. I have real worries that the blanket provision in the Bill over people who may very well have been rehabilitated could well stop them being able to get the support they might need to continue to be productive members of society. Does it help the rehabilitation, or does it create an environment where a person may make bad choices and cause harm?

As Jonathan Hall argued in the evidence session,

“I have certainly come across cases where the terrorist risk from the individual—the chance of their stabbing someone, for example—goes up if they are not taking their medication or if they are homeless.

My concern about the legal aid is that it will make it harder, for example, for a terrorist offender, maybe 10 years after they have been released and who is facing eviction, to get legal aid. That means that you might have less good decisions made…My real concern is people becoming homeless or falling into debt when they might otherwise be able to get legal assistance.”––[Official Report, National Security Public Bill Committee, 7 July 2022; c. 11, Q19.]

If our primary driver is to protect the public and reduce risk, we must consider that point. The breadth of the Bill could undermine the very thing that it is trying to protect: a society where people do not live in fear of violence and danger.

Photo of Kevan Jones Kevan Jones Llafur, North Durham

The media’s portrayal of legal aid is of giving out huge sums of money to the undeserving and those who are guilty of crimes, but we should start from the basis, as I always do, that people are innocent until proven guilty. The other motive for the Bill is clearly to get some headlines that say, “We are being tough on terrorists.” I will come on to some examples, especially the issue of under-18s, but the Bill does nothing of the sort.

There is also a more fundamental point: if someone is accused of a crime, we want to ensure that the facts are put before the court and that they are properly legally represented so that they can argue their case, and the Crown can argue its case against that evidence. At the end of the day, it is then up to the jury and the courts to decide whether that person is innocent or guilty, and the courts then decide on sentencing. That process is not just some woolly notion of a justice system that this country is proud of; it is actually fundamental to the victims. It is important that the victims of terrorism, or any crime, are assured that a person who is guilty is sentenced and gets the appropriate punishment.

When we talk about terrorists, we are talking about the appalling individuals who perpetrated the Manchester bombing or the London atrocities. As my hon. Friend the Member for Birmingham, Yardley has just said, that is not the spectrum we are talking about here, as the Bill sets a broader one.

I suggest people read the Intelligence and Security Committee’s report on extreme right-wing terrorism. In taking evidence for that, the most disturbing fact was that the people who are now being drawn to extreme right-wing terrorism are youngsters, some as young as 14 or 15. It is mainly online, but they are committing offences. There are quite a few—some have been reported publicly—who have been, rightly, imprisoned because they have met the threshold for the court to decide that they committed an offence.

Suppose a 15-year-old is found guilty of a terrorism offence. We are saying that, for the next 15 years, whatever they do—whether another terrorist-related incident or, as my hon. Friend the Member for Birmingham, Yardley said, a criminal case or a civil case such as eviction—they will be barred from access to legal aid. I might be unpopular for saying this, but legal aid helps the system of justice. The idea that it is doled out willy-nilly to everyone is absolute nonsense: it is hard to meet the thresholds that have been introduced over the last few years. Those thresholds have gone too far, because they are basically a tax on justice for a lot of innocent people. I do not understand where that comes from.

I come back to the point about youngsters and rehabilitation that my hon. Friend made. It is possible that there is a perception that there is an average terrorist. We know what a terrorist is: someone who carries out horrific bombings or activities. However, that is not the case with some of the other thresholds for terrorism offences. For some youngster—a 15-year-old, or someone even a bit older—who has been imprisoned for that type of terrorism, our aim surely is to work with them to get them out of that pathway. The legal aid measures will do nothing at all to help that rehabilitation process. I am sure that many people in the room made decisions when they were 15 that they would perhaps regret now. I am sure that the Minister was a perfect child, but people make mistakes, and they hold views that 15 years later they will not hold. The idea that we penalise those people for life is unacceptable.

The measures have been parachuted into the Bill, and I would like to know the rationale for including them in the Bill. They will not make the process very easy for the Crown, either. If someone cannot get legal aid, what are they going to do? Represent themselves? All that does is make the trial very expensive and not a good process for the victims who are watching.

The broader issue is that there are many people whom we—and, I am sure, the tabloids and others—do not like. We do not like murderers, paedophiles or rapists. If we apply the measures to terrorists, why not extend them to the other people we do not like? I am not proposing that we should. If we did, that is fine: Dominic Raab might think that he will get a newspaper headline for being tough on terrorism. But it would make the situation worse. It would slow down the legal process; it would victimise people for many years. What we should be doing with those youngsters is working with them to try to get them away from some of the sick ideologies outlined in the right-wing extremism report from the ISC. We should get them back into society. Look at some of the best examples around the world of rehabilitation of terrorists or extremists—it is about rehabilitation, not punishment.

If someone has carried out an horrific terrorist attack and killed people, I am happy for them to stay in prison for the rest of their lives. I have no problem with that. However, there are those who are on the verge of doing that. It is worse these days because of the internet and social media, which is slowly corrupting some young minds; it leads them to hold ideologies and, in some cases, take steps that cause them to meet that terrorist threshold.

I know that the Minister will not agree to scrub this section today. However, for the sake of Stephen McPartland, who did a valiant job picking this Bill up, I urge the Minister to drop this entire section of the Bill later on. It would be a testament to the hon. Gentleman.

Photo of Thomas Tugendhat Thomas Tugendhat Minister of State (Home Office) (Security) 3:45, 8 Medi 2022

I appreciate enormously what right hon. and hon. Members opposite have said. As I have been familiarising myself with the detail of this Bill, I will be asking questions and engaging in conversation with colleagues from all parts of the House. I will absolutely be engaging with Opposition colleagues.

I am sure right hon. and hon. Members will appreciate it if I cover the clauses as they stand. Clause 62 will narrow the range of circumstances in which individuals convicted of specified terrorism offences can receive civil legal services. That includes individuals convicted of terrorism offences listed under schedule A1 to the Sentencing Code, where there is a minimum penalty of imprisonment for two years or more, as well as for offences where a judge has found a terrorism connection.

The restriction will apply to future applications for legal aid for individuals convicted of terrorism or terrorism-connected offences from 2001 onwards. The restriction will not affect ongoing cases.

Photo of Kevan Jones Kevan Jones Llafur, North Durham

Is the Minister suggesting that this measure is going to be retrospective to 2001 for some individuals?

Photo of Thomas Tugendhat Thomas Tugendhat Minister of State (Home Office) (Security)

My understanding will be clarified in a letter to the right hon. Gentleman very shortly, unless it is clarified in the moments to come.

Photo of Kevan Jones Kevan Jones Llafur, North Durham

I find that very difficult. If it gives him time for his civil servants to provide the answer, I will say that it is very unusual to have retrospection in a law such as this. If the Minister does not have the answer in time, I am sure he could send us all a note.

Photo of Thomas Tugendhat Thomas Tugendhat Minister of State (Home Office) (Security)

I am assured that it is retrospective. I will, of course, be looking at this as part of the whole. [Interruption.] It is retrospective to 2001 for past offences. I will come back to the right hon. Gentleman on that.

The effect of the restriction is a suspension on accessing civil legal aid from the date of conviction. The restriction will last for 30 years for individuals convicted when aged 18 years old or over, and 15 years for individuals convicted when under 18. The restriction will not apply to individuals under 18 years old, but will take effect when they turn 18 and make a new application for civil legal aid.

As the clause is drafted, access to the exceptional case funding scheme will remain available for those subject to the restriction who can demonstrate that, without legal aid, there is a risk of a breach of their ECHR rights or their retained enforceable EU law rights. Applications for exceptional case funding are generally subject to means and merits tests.

Clause 63 ensures that—

Photo of Kevan Jones Kevan Jones Llafur, North Durham

Will the Minister give way on the point he just made?

Photo of Kevan Jones Kevan Jones Llafur, North Durham

In effect, this measure is going to be useless, isn’t it? I would think that if, for example, someone with no means is subject to one of these orders, it would not take a great legal genius to argue in a court that it infringed their rights to a fair trial. Is it not therefore the case that, in most cases, they will get special legal aid anyway? It is a bit odd to implement a thing that might sound tough but, in practice, will end up with people getting legal aid anyway.

Photo of Thomas Tugendhat Thomas Tugendhat Minister of State (Home Office) (Security)

Occam is making his case. The right hon. Gentleman will be assured that I will respond in full, and in kind, as soon as we have had the opportunity to have this discussion among a slightly wider party of colleagues.

Clause 63 ensures that the correct data-sharing and data-processing powers are available to enforce the restriction on access to civil legal aid for those convicted of specified terrorism offences. To enforce the restriction effectively, we must be able to check that an individual has a relevant conviction that would prevent them from accessing funding. To do this, a legal gateway must exist within the legislation to use conviction data for the purposes of administering legal aid. The clause will allow the details of an individual’s conviction status to be requested from the director of legal aid casework and shared from a competent authority that holds the criminal conviction data. This data can be used only for the purpose of identifying whether an applicant for legal aid has been convicted of a specified terrorism offence, in order to determine whether the restriction will apply. Such information may include an individual’s name and date of birth, and the dates of any convictions.

Photo of Jess Phillips Jess Phillips Shadow Minister (Home Office), Shadow Minister (Domestic Violence and Safeguarding)

The Minister has described the process, which, as with all Government processes, always works smoothly. Will they have to do that check on every single person who applies for legal aid?

Photo of Jess Phillips Jess Phillips Shadow Minister (Home Office), Shadow Minister (Domestic Violence and Safeguarding)

It is going to be quite a slow process. The suggestion is that, for every single person who applies for legal aid in any civil remedy or order, we will start writing to a competent authority to get any previous terrorism convictions.

Photo of Thomas Tugendhat Thomas Tugendhat Minister of State (Home Office) (Security)

I will clarify the process for the hon. Lady. It is not that unreasonable, frankly—

Photo of Thomas Tugendhat Thomas Tugendhat Minister of State (Home Office) (Security)

Hang on a minute. It is not that unreasonable to check with competent authorities before various provisions are made. It is pretty standard, and this measure is another check. I appreciate the hon. Lady’s point, and I will come back to her with how this is done and how it is followed up.

Finally, clause 64 makes a minor amendment to clarify how civil legal aid is available for terrorism prevention and investigation measures proceedings. I want to make it clear that the clause will not change that fact. The clause seeks to reduce unnecessary complexity in the administration of the legal aid scheme, and it will ensure that all legal aid decisions for TPIMs are made under one paragraph of the statutory framework, rather than being funded under multiple paragraphs. The clause will also remove references to “control orders” in the legal aid legislation; control orders were the predecessors to TPIMs and have now been phased out.

Photo of Thomas Tugendhat Thomas Tugendhat Minister of State (Home Office) (Security)

Because the term “control orders” has been phased out.

Photo of Kevan Jones Kevan Jones Llafur, North Durham

No, I mean why is it for TPIMs? Why one and not the other? It is what we said earlier: it is pushing one way and pulling the other way, surely.

Photo of Thomas Tugendhat Thomas Tugendhat Minister of State (Home Office) (Security)

I see the right hon. Gentleman’s point. We are going to move on, because he knows that we will be talking about this later.

I thank both the right hon. Gentleman and the hon. Member for Birmingham, Yardley for tabling their amendments, which seek to carve out an exception from the restriction where the case type involves domestic abuse. I recognise the strength of voice that the hon. Lady has brought to the scourge of domestic violence, and the voice that she has given to so many victims in the House. It is an enormous tribute to her that she is recognised around the country for it, and I certainly listen to her very carefully on this issue. I reassure her that I will be looking at not just the provisions in the clause but the amendment she has tabled. I will also be looking at the exceptional case funding scheme, and I will be discussing it. It is certainly true at the moment that 74% of applications to the ECF are granted, but she has already made the point that there is a hurdle before approaching the 74%. I accept that, and I will be looking at it. I will be taking it seriously. I ask her to withdraw the amendment ahead of future conversations.

Photo of Jess Phillips Jess Phillips Shadow Minister (Home Office), Shadow Minister (Domestic Violence and Safeguarding)

I appreciate the tone that the Minister has taken, and I will withdraw the amendment with a view to see where we get before Report and Third Reading. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 62 ordered to stand part of the Bill.

Clauses 63 and 64 ordered to stand part of the Bill.