Terrorist Asset-Freezing etc. Bill [HL]

My Lords, this amendment concerns the award of damages where a person wins their appeal against a designation order. In Committee, the Minister said, at column 193 of the Official Report, that Clause 26(3), which was introduced by a government amendment in Committee, would ensure that a person who won their appeal against a designation order would be able to claim damages from the court. He was responding to an amendment tabled in Committee by the noble and learned Lord, Lord Davidson of Glen Clova. I expressed concern in Committee that Clause 26(3) does not clearly confer a power on the court to award damages, even though it states that the court may make such order as it sees fit. The basis of my concern is that it is a general principle of law that to establish in court that an administrative act is unlawful because it is unjustified or based on a mistaken view of the relevant legal power does not of itself normally confer a right to damages for the victim, even if they are able to show that the unlawful act has caused direct and foreseeable damages. To claim damages, it is normally necessary for the victim of an unlawful administrative act to show that the official acted in bad faith or recklessly. I am concerned that, without express provision in the Bill, the courts may well apply this general principle. Since the Government rightly intend to provide for a wider right to claim damages in the present context, given the damaging effect that a mistaken or unjustified designation order will have on a person and their family, my amendment seeks to state the principle clearly in the Bill. The amendment identifies what seems to be the appropriate criterion in this context. The victim should not have a right to damages in every case. The matter should be left to the discretion of the judge, both as to whether damages should be paid and, if so, how much. There may—although I hope not—be cases where the officials impose a designation order without proper care and attention, causing substantial harm to the victim. At the other end of the scale, there may be cases where the victim has, by his own conduct or failure to co-operate with the authorities, brought the designation order on himself. It would be quite wrong for that person to be awarded compensation simply because he succeeds in his appeal. I hope the Minister will confirm today, as he did in Committee, that the Bill is intended to confer a right to claim damages, with the judge in his or her discretion deciding whether it is appropriate to award damages in the individual case. If so, I hope the Minister will accept the amendment to clarify the position in the Bill for the avoidance of doubt and, indeed, for the avoidance of what will otherwise inevitably be expensive litigation from which no one, other than lawyers, will benefit. I beg to move.