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Lord Elton: I want to raise a small point. I wonder whether the noble and learned Lord can confirm that, at the point of expiry of these clauses under the sunset clause, anyone in detention under those provisions would automatically be released. Is that right?
Lord Goldsmith: Yes, I so confirm.
Lord Avebury: Perhaps I may ask the noble and learned Lord whether it is still the case that a person who is convicted of a terrorist offence would necessarily serve a very long sentence. Is it not a fact that, under this Bill, Xinternational terrorist" means a person who is a member of, or belongs to, an international terrorist group? Therefore, if someone has been convicted merely of membership, let us say, of the PKK or the LTTE, then he might receive a short sentence on those grounds. At the end of that sentence, the Secretary of State might take the view that he was a threat to our security and issue a certificate. Therefore, this is not a situation which we can necessarily guarantee will occur only 15 or 20 years down the line, as the noble and learned Lord implied.
I know that no one is being prosecuted at present, in spite of the Terrorism Act 2000, simply for being a member of an organisation. In fact, many people have demonstrated outside the Home Office wearing T-shirts displaying the insignia of the various terrorist organisations proscribed under the 2000 Act without the police taking any notice. There have been crowds in Trafalgar Square where people have acknowledged and boasted of their membership of terrorist organisations without the police turning a hair. But in the future more strict application of the Terrorism Act 2000 may be enforced by the prosecuting authorities. We cannot tell.
Therefore, I believe that the hypothesis on which the noble and learned Lord based his reply—that is, that we do not have to consider this matter until some time in the distant future—may not be strictly true.
Lord Goldsmith: I was trying to respond to the hypothesis as I understood it from the noble Lord. However, I invite recollection of this important point: it is not membership of a terrorist organisation that gives rise to these proposed powers; it is the fact that the person has no right to be in this country, is the subject of proper immigration control requiring that person to be deported—but he cannot be deported because of the impediments that we have described—and, critically, that that person is reasonably believed to be a threat to national security. The tough question that must be asked when that person is reasonably believed to be a national security threat, whether he has already served a sentence for shop-lifting or for something else, is: is it right that that person should roam free if we cannot deport him as the law would otherwise require?
Lord Corbett of Castle Vale: I am grateful to my noble and learned friend the Attorney-General for the way in which he dealt with the amendment. He tempted me when he said that imprisonment in the generally understood meaning of the word is not involved because the person concerned can walk away. I shall weary neither him nor the Committee with details on that point, except to say that it is fanciful to think that it will be easy for someone who is branded and imprisoned as an international terrorist to pick up the phone to speak to the Australians, French, Italians
or Canadians, and say, XHi. The Brits say that I am an international terrorist. Can I come and live with you?". There will be real problems in that regard.I tried to anticipate what I thought my noble and learned friend would say about the seven-day time limit. I am sorry that he does not see the need for a time limit, although I understand exactly his point about the responsibilities of public bodies to observe the provisions of the ECHR. That goes some way towards meeting my objection. However, I remind him of what I said about the person who lodges the appeal. It is that person who is in charge of the timetable. No one who lodges an appeal would do so without being fully and properly prepared for a hearing. If he was not so prepared, he would be taking an immense risk on top of an already difficult situation. To that extent, the safeguard is with the person who is in prison. However, I do not want to labour that point.
I hope that when all of these provisions are in place, those who are responsible for operating them will read our exchanges at their leisure and be persuaded that they should make all best speed when the appeals are launched. On that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord McIntosh of Haringey: I beg to move that the House do now resume. In moving that Motion, I suggest that the Committee should not meet again before 8.40 p.m.
Moved accordingly, and, on Question, Motion agreed to.
Community Legal Service (Cost Protection) (Amendment No. 2) Regulations 2001
7.42 p.m.
The Parliamentary Secretary, Lord Chancellor's Department (Baroness Scotland of Asthal) rose to move, That the draft regulations laid before the House on 30th October be approved [8th Report from the Joint Committee].
The noble Baroness said: My Lords, the regulations are made under Sections 11(3) and 11(4)(d) of the Access to Justice Act 1999. They enable the Lord Chancellor to make regulations that limit the circumstances in which costs may be enforced against a person receiving funded services or which define the liability of the Legal Services Commission to meet the costs of the opponent of a person receiving funded services. Such regulations are subject to parliamentary approval under the affirmative resolution procedure. It might be helpful if I start by explaining to the House why we are amending the regulations.
The change is part of a larger package of reform of the financial conditions for funding in civil cases, which will also come into effect in December. We had recognised that that there was a need to make the
financial conditions for funding fairer and more consistent, ensuring that they better reflected priority needs and the client's ability to contribute towards the cost of his or her funding. However, we also recognised the need to make sure that the financial conditions are as fair as possible between funded litigants and their unfunded opponents.To that end, we recognised the difficulties encountered by privately paying opponents of publicly funded litigants in recovering their costs. It is often the case that people still have to pay their own costs, despite winning their case against a funded client. A funded client's liability for costs is limited to the amount, if any, that it is reasonable for him to pay, having regard to all the circumstances of the case, including the means and conduct of both parties. Funded clients, by definition, have very limited resources available to them. Consequently, if costs are awarded against a funded client, they are usually ordered,
- Xnot to be enforced without the leave of court",
We appreciate the distress suffered by successful unassisted defendants who cannot recover costs from their publicly funded opponent. Defendants have no choice about becoming involved in legal actions, so it is right that they should be given some help with meeting costs that they have had no choice but to incur.
If costs cannot be recovered from a funded client, it is possible for privately paying defendants to recover their costs from the Legal Services Commission. At present, in order to do so, the funded client must have begun the proceedings and the winner—the privately paying defendant—must show that he or she would suffer severe financial hardship if the commission does not meet the cost.
The awarding of costs and the decision about whether severe financial hardship would be suffered is for the courts and not for the commission. By introducing the amended regulations, we will give the courts the power to order the commission to pay the costs of a successful unassisted defendant, who would otherwise suffer financial hardship. That involves relaxing the current test of severe financial hardship. We believe that that will strike the right balance between the interests of private litigants and those funded clients who are by definition among the poorest in society.
The changes mean that there will be significant assistance for those people on the lowest incomes. When resources allow, we propose to increase eligibility limits for those services further, bringing them to the same level as those for legal representation,
which will mean that a further 2 million people will become eligible. I commend the draft regulations to the House. I beg to move.Moved, That the draft regulations laid before the House on 30th October be approved [8th Report from the Joint Committee].—(Baroness Scotland of Asthal.)
Lord Goodhart: My Lords, my practice at the Bar has been almost entirely in the civil field, and I am well aware of the problems caused to private litigants when the party on the other side—whether the claimant or defendant—is legally aided. That meant that there has not been a level playing field and that people who win still end up having to pay their costs. There is no doubt that there has to some extent been a form of institutionalised abuse of the system by those who are acting for legally aided clients and who are aware of the strengths that their position gives them. I therefore in principle welcome changes that make it easier to recover costs from the commission.
Of the three proposed alterations I welcome without hesitation the proposal in regulation 4(1) which will remove the strict time limit within which the request for the payment of costs from the commission has to be made. I am also entirely supportive of the proposal that the standard required under regulation 5(3)(c) should be downgraded from Xsevere financial hardship" to Xfinancial hardship". I accept that such an order should not be made unless hardship can be shown.
The one point about which I am not happy is the restriction to non-funded parties who are individuals. It is obviously right that no order should be made relating to the payment of costs to a large corporation. However, there are many small businesses that are incorporated and, if proceedings were brought against them by a legally aided party, that might cause very severe hardship or the business might go into bankruptcy. I am sorry that there has been a total removal of the right of corporate bodies, however small, to recover costs from the client.
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