House of Lords
Monday, 24 July 2006.
The House met at half-past two of the clock: the LORD SPEAKER on the Woolsack.
Prayers—Read by the Lord Bishop of Sheffield.
Lord Browne of Belmont
Wallace Hamilton Browne, Esquire, CBE, having been created Baron Browne of Belmont, of Belmont in the County of Antrim, for life—Was, in his robes, introduced between the Lord Molyneaux of Killead and the Lord Rana.
Karan Faridoon Bilimoria, Esquire, having been created Baron Bilimoria, of Chelsea in the Royal Borough of Kensington and Chelsea, for life—Was, in his robes, introduced between the Lord Dholakia and the Baroness Prashar.
My Lords, I am grateful to my noble friend for that illuminating Answer. Is he aware—presumably he is—that the DTI and the Treasury still use a figure of $35 a barrel, reducing after 2010, compared with today’s price of somewhere between $75 and $80 a barrel? Does he not agree that such a difference must affect industry and transport costs and appraisals, and is it not time that the Government joined most analysts in at least looking at the effect of a price that is currently double the one given in their own assessments?
My Lords, according to my information, the oil price included in the Budget 2006 forecast was $57.40 a barrel; that price is determined by an average from independent forecasters and is audited by the NAO. As my noble friend indicated, since then prices have become more volatile and moved upwards, trading recently between $66 and $75 a barrel. I am sure that he will agree with me that having the near doubling of oil prices in the past 18 months accompanied by a still expanding economy and by inflation running at just over 2 per cent is an astonishing achievement in the Government’s economic policy.
My Lords, now that the motorist has to pay nearly £1 a litre for fuel, how much extra tax is the Chancellor raking in from that increase in oil price? Would it not be fairer to reduce the cost of fuel by reducing the tax to what the Chancellor originally expected to collect?
My Lords, it is a myth that an increase in oil price will produce additional revenues for the Exchequer. The oil duty is not ad valorem but is based on a price per litre. Prices going up means that consumption declines. The estimate for 2005-06 was a reduction in oil duties of about £300 million. With VAT, generally people consume less of one good or service that generates VAT to cater for the extra VAT in the oil price.
My Lords, the balance of payments issue is one of the factors that the Government take into account when making a range of judgments. When we look at the inflows that we get from outward investment, we do not see that there is a particular problem in sustaining an appropriate level for the currency.
My Lords, last September, when the Chancellor ruled out cutting fuel duty to ease the impact of rising oil prices, he was quoted in the Financial Times as saying:
“the first action that we must take is to tackle the cause of the problem: ensuring concerted global action is taken to bring down world oil prices”.
I think that the Minister will agree that that first action is not looking very good, so will he now commit to bringing down fuel duty?
My Lords, noble Lords will be aware that there was an announcement last week that the fuel duty increase proposed for this year would not be imposed and that it would be reviewed at the time of the Pre-Budget Report. High oil prices are a global problem that requires a global solution. That is why the Chancellor has been leading on a number of initiatives, working with other finance Ministers throughout the world and improving transparency on oil market data with a strong commitment to dialogue between consumers and producers. I have outlined the position on fuel duty, which in real terms is below the level for 1999-2000.
My Lords, the Government take into account the price at the pump for the motorist, which is why they have deferred the increase proposed in the Budget. The Government cannot unilaterally determine what happens to world oil prices. Naturally, fuel duty is partly a tax revenue-raising issue, but it is also to do with meeting our Kyoto commitments and seeking to deal with emissions.
My Lords, it is interesting that not increasing the duty had an impact of something like 0.15 million cubic tonnes of carbon, whereas the impact of the oil price has apparently been to reduce emissions by something like 0.5 million cubic tonnes.
My Lords, I thank the noble Lord for his kind wishes. So far as concerns the North Sea, we have recently seen an increase in forecast total expenditure. Indeed, the recent 24th licence bidding round produced a record number of bidders for licences. The forecast for capital investment for 2006 has increased by 35 to 50 per cent, or from $1.2 billion to $1.7 billion, over the same period, so the oil price will obviously have a positive impact on the North Sea regime.
My Lords, oil price increases have an impact on the whole economy. For sectors that can take advantage of rebated fuels, duty obviously has a significantly lesser impact. There is a negative impact on the economy, but that has to be balanced against all the other factors that affect our economy, which will be updated at the next PBR.
My Lords, as my noble friend pointed out in his original Answer, oil prices are affected not only by supply constraints but by demand. Does he agree that it would be an act of consummate folly to follow the advice offered by the Conservative Party this afternoon to reduce the price of oil and therefore to stimulate demand?
My Lords, my noble friend is right: it would be folly to follow the advice of noble Lords opposite—certainly in this matter. We should recognise that oil prices have increased sharply since 2004, principally because of stronger-than-expected demand, particularly from the growing economies of China and India. More recently, the high prices have reflected potential and actual supply disruption in the Middle East and north Africa.
My Lords, I follow on from the question of the noble Lord, Lord Barnett, on the balance of payments. Given that the deficit has increased every year since the Government came to office, does not the sustained high level of oil prices cause concern that there will continue to be increasing deficits?
My Lords, a number of things have an impact on the deficit. There has been a spurt in our export activity, which will help balance of payments issues, but you have to look at the capital account as well as the trading account to evaluate the overall impact on the balance of payments.
My Lords, the capital construction costs remain as described in my Written Ministerial Statement of 14 December 2004, subject to those costs having been adjusted for inflation, and they now stand at £35.3 million. There will be additional associated costs, such as fees and furniture. Westminster City Council is currently considering a local planning application, on which it is expected to reach a decision over the Summer Recess. We do not yet know whether this decision will have an impact on the costs. Therefore, when the application has been decided, I propose to make a full report to the House, including the overall estimated costs, once Parliament returns. Subject to a successful application, it remains my intention that the UK Supreme Court should open for business in October 2009.
My Lords, I thank the noble and learned Lord for that reply—I am not sure whether I should refer to him as the Lord Chancellor or the Minister. In any event, he accepts that costs and completion date shall not be knowable for quite a long time. Does that not afford an opportunity for the House to reconsider the consequences of his preferred option—consequences such as depriving the House of irreplaceable expertise on committees and on the Floor of the House and leaving 300 cases stranded at the Guildhall waiting for trial?
My Lords, traditionally I am called the noble and learned Lord the Lord Chancellor. There is a precise date, and a precise date on which the costs will be known. No, let us not have another debate such as that which took up the time, energy and emotion of the House over two or three years. I think that the decision was ultimately made.
My Lords, the quality of the Law Lords is second to none, and I am happy to see some noble and learned Law Lords in the Chamber today. It is right, however, that the final Court of Appeal should have its own building and be separate from the legislative Chamber. That was the basis on which we proposed the measure and Parliament passed it.
My Lords, does the noble and learned Lord agree that, although the Middlesex Guildhall is not a building of great merit, its location is ideal and that changes to its interior can make it far more suitable and accessible to the public than the present arrangements in your Lordships' House, which are cramped and virtually inaccessible to members of the public who wish to see what the Law Lords are up to?
My Lords, perhaps the noble and learned Lord will be good enough to agree on this thing, too. Is it not a fact that in order to place the new Supreme Court in the new buildings, about 14 other courts will have to be rehoused? Do the figures that he has given us include the rehousing of those courts?
My Lords, will the noble and learned Lord kindly inform us how much the Law Lords cost at present?
My Lords, I am afraid that the noble and learned Lord did not address my question, which was: what do the Law Lords cost in your Lordships' House at present? Plainly, your conscience was gnawing at you.
My Lords, I was so excited because I thought that the noble Lord had spotted what the noble Earl, Lord Ferrers, was talking about. The approximate annual cost of having the noble and learned Law Lords here is between £3 million and £4 million, and the approximate annual cost of running the new Supreme Court will be somewhere between £8 million and £10 million. So it will cost substantially more.
Works of Art: Funding
My Lords, the Government have no plans to increase direct funding for works of art by the public sector. There is a popular misconception that the amount of public money available for acquisitions has decreased; this is not the case. The DCMS’s sponsored museums and galleries received a £1.6 billion settlement for the three years 2005-06 to 2007-08. This was an above-inflation settlement. The Government do not ring-fence allocations for acquisitions, and this allows our sponsored bodies freedom to choose how much of their grant-in-aid they spend on acquisitions. We do not fund the acquisition of works of art for the private sector.
My Lords, I thank my noble friend for that reply. I am sure that, with his background, he is as concerned as I am that so many works of art are being lost in this country, in both the public and private sectors, because there are insufficient funds to finance them. What action are the Government taking to increase funding to secure many of the important parts of our national heritage? Is there not a further danger that the Department for Culture, Media and Sport will spend more of its resources on the escalating cost of the 2012 Olympics at the expense of so many of our national treasures?
My Lords, I am slightly surprised to hear such wonderful talk coming from an ex-Treasury Minister, and I wonder what he did for the arts when he was there.
We all share the problem of soaring prices in the international art market and requests to purchase pictures for the state that cost up to £50 million, as with the Titian, where unfortunately negotiations between the National Gallery and the owners have broken down. There are many other calls on these limited resources, be they concerns about the cultural diversity of the country and how we reflect that in our purchasing policy or the number of gifted young artists from Britain whose paintings have to be collected for future generations. Sir Nicholas Serota said last week that, if the Hockneys go abroad, it will be an enormous pity that future generations will have to go abroad to see them.
My Lords, is the Minister aware that, when the noble Lord was at the Treasury, it was the job of the Treasury to raise money and the job of other departments to spend it?
The Minister will be aware that I am not an avid reader of his party’s manifesto, but one sentence in its manifesto for the previous election caught my eye. It stated that his party,
“will explore further ways to encourage philanthropy to boost the quality of our public art collections”.
Will the noble Lord give us one small bit of evidence of how it has done that?
My Lords, the Government will continue to explore options for encouraging philanthropy and are in discussion with the working group on the UK’s literary heritage, chaired by my noble friend Lord Smith of Finsbury. On 10 July, there was a meeting between DCMS and key people and directors in the museums and galleries world where all the concerns that we are talking about today were raised and discussed. One of the important government initiatives resulted from the strong feeling that the existing system of tax incentives for potential donors was neither well known nor well publicised. The DCMS will address that over the next few months.
My Lords, funding for acquisitions is important, but so is funding for those working in the arts. The Government’s Creative Partnerships scheme, which sends artists into schools to work with teachers and pupils, has been a huge success: 90 per cent of teachers involved found that it had improved their ability to help young people to achieve their full potential, something that all teachers want to do. However, funding is only guaranteed until 2008. Can the Minister reassure us that the scheme will be supported and funded beyond that date?
My Lords, in an arts debate we had a month or so ago the same question was asked by the same noble Baroness. I said then that we recognised that it had been a huge success. We very much hope that we will be able to continue something that has done an enormous amount of good for people.
My Lords, notwithstanding what my noble friend said about how funds are disbursed and made available for acquisitions, what can the Government do to encourage museums and galleries to acquire contemporary work—he has already touched on this point—particularly as many great artists are uncelebrated in their own time and require the support of loyal and courageous patrons to make sure that their work survives?
My Lords, I have already mentioned the meeting that took place on 10 July. One of the issues on the table was the fact that contemporary art is not being collected as rigorously as it should be. There is a danger that collections will not reflect the need of the changing British society or the world around us. It is important that our museums collect work by young contemporary artists for the future generation.
My Lords, I support the call by my noble friend Lord Sheldon for increased funding for the purchase of works of art. Will the Minister also acknowledge the severe problem of providing funds to conserve existing works of art that lie in the vaults of our public museums and the importance of providing sufficient exhibition space so that the public can enjoy those holdings?
My Lords, the National Art Collections Fund, led by that great campaigner David Barrie, wrote a report recently arguing that 92 per cent of museums surveyed felt that there was inadequate funding. It also revealed that 84 per cent of museum directors felt that shortage of space was a serious obstacle to collecting and that 82 per cent felt that the shortage of staff and management time was a serious problem. My noble friend raises important matters that will be looked at as part of the ongoing discussions between the museum and gallery directors and the DCMS.
My Lords, I am able to give the noble Baroness that undertaking. As I said before, there is a very strong feeling that tax opportunities are not being taken up by people who own works of art and who would like to donate them to the country. The DCMS will be trying to make people more aware. The underlying problem is that, if somebody wishes to donate something to the nation and there is an arrangement under acceptance in lieu to do so, the market price is decided by the individual and the advisory panel. Often, the person will take the work of art to a saleroom and will be told that perhaps it will get two or three times the reserve price. That makes it very difficult.
My Lords, that is one of the proposals under the two or three headings, other than acceptance in lieu, that the DCMS will consider. If there are tax schemes that are not being used and it is possible to get people to use them, that is a good course to pursue.
My Lords, in the great examination of how to change the tax regime to encourage more expenditure on the arts and our arts heritage, will the Government consider the simple regime in operation in the United States of America? From everything that the noble Lord said, it sounds as though we will end up with a huge schedule of about 150 different ways of doing things. Let us keep it simple.
My Lords, it will be simple because we are talking about four or five headings, not hundreds. Often, we look to the United States for guidance in this area, but it is not clear that its charity laws and ours coincide in such a way that we can take advantage of them.
My Lords, if the Government are prepared to forgo tax revenue by introducing some scheme for tax relief, why do they not just simplify the whole process and make the revenue that they raise available for that purpose? Why do we have to use the tax system? If the Government believe that it is worth having some kind of tax relief, they must think that resources should be applied there, so why bring yet another complication into the tax system rather than doing what the noble Lord, Lord Sheldon, asked?
My Lords, I do not think that it is a complication, because we know what the tax is and we know what the deductions are. The problem is on the other side: the price of the work of art that the country wants to keep. There, we cannot see a way through the extraordinary impact that the private sector, through bidding at salerooms and by private individuals, has had on the price of art.
My Lords, if we are talking about contemporary artists, a certain amount depends on the Government’s relations or other relations with the artists themselves. Is the Minister aware, for example, that David Hockney has given a number of his creations to the exhibition in Saltaire, which brings in people from the local area and does a great deal for the arts in West Yorkshire? Should that sort of thing be encouraged?
My Lords, it should be encouraged, but, at the same time, no Government can count on the generosity of a young and brilliant artist in giving the country works. There have been many occasions when David Hockney has been wonderfully supportive in his time and his art—for example, in a campaign to get more money for regional museums. We must not take the help of such people for granted. They must be paid properly for what they do.
My Lords, in response to the question asked by the noble Lord, Lord Harrison, the Minister mentioned that there was not enough space to exhibit some treasures, so we do not see them. How about loaning them to be displayed in schools, hospitals and other public spaces, so that they do not languish in basements, cupboards and so on?
My Lords, with the leave of the House, a Statement will be repeated this afternoon. The subject of the Statement is child support redesign. It will be given by my noble friend Lord Hunt of Kings Heath, and we propose to take the Statement immediately following consideration of Commons amendments to the Government of Wales Bill.
Procedure of the House: Select Committee Report
My Lords, I beg to move the Motion standing in my name on the Order Paper. Our recommendation, that Unstarred Questions should be tabled in No Day Named before seeking a date from the Government Whips’ Office, is meant to avoid the situation where an Unstarred Question appears on the Order Paper as if from nowhere. We think that this will be welcome.
However, I imagine that the House is more interested in the general debate day and whether we should stick to Thursday or revert to Wednesday. Let me briefly remind the House of the history. The matter first arose in 1999, when the House voted against an experimental switch, by 225 votes to 87. It came forward again at the end of 2000, when the House voted against an experiment, but this time by only two votes. Finally, following the review in 2004 of the package of changes to our working practices negotiated by the late Lord Williams of Mostyn, the House voted a third time in March last year. This time the House agreed to an experiment by 135 votes to 98 votes. In January, we agreed, as part of the experiment, to sit at 3 pm on Wednesdays.
The experiment ended with the last general debate day at the end of June, and the Procedure Committee has reviewed it. For what it is worth, statistical evidence shows that there has been little change on the general debate day. Average attendance in the Chamber on new-style Thursdays was the same as on old-style Wednesdays, at around 380 Members. The average number of speakers per available hour in general debates did not change. The average limit on Back-Bench speaking time fell from 11 minutes to 10 minutes and an average sitting on the general debate day was 15 minutes longer.
It is the other day that appears to have changed. Average attendance on an old-style Thursday was 350; on a new-style Wednesday, it has jumped to 430. Whether that is a good or a bad thing, I would not like to say. The report recommends that we stick with Thursday for general debates. We accept that there are different views around the House and it is for the House to decide. My view is that what we have now is working and we should stick with it.
Moved, That the sixth report from the Select Committee be agreed to (HL Paper 231).—(The Chairman of Committees.)
My Lords, I should like to refer to the general debates and, in particular, to paragraphs 4 to 8 of the report. As the Chairman of Committees has said, since 1999 there has been a question about whether the general debate day should be switched from Wednesday to Thursday. On the first vote, there was no wish to see a change. In January 2001, a change was proposed, but, following a Division, there was no change. However, as the report shows, and the chairman reminds us, on 24 March 2005 the House voted to switch the debate day from Wednesday to Thursday for an experimental period.
In moving an amendment last year, I said that switching government business from Thursday to Wednesday would effectively lead to a three- or even a two-and-a-half-day parliamentary week, and that in due course Thursdays would imperceptibly die. Eventually there would be poorer attendance at Questions and fewer speakers in general debates. There would be fewer Members in the corridors and lobbies, the Library, the Guest Room, the Bishops’ Bar and dining rooms elsewhere. The House would be like a half-closed place of work, empty of life and flat. However, the processes of Parliament are complex and subtle. They are very different from the routine procedures and relationships in other institutions. Parliament is unique and special, and we should hold fast to its particular qualities.
I said then, as I say now, that it is very convenient for busy Ministers to be largely free on Thursday. In the Division on 24 March last year, there was certainly a very full turnout of Ministers and Whips, led by the noble Baroness the Lord President, to vote for the switch. I also said then as I say now that it is convenient for government Back Benchers, who are often bored stiff in helping to keep a House, to go home early at least after Questions on a Thursday. In March last year almost 100 government Back Benchers voted for change, more than sometimes vote in routine Divisions.
The best case was put by the noble Baroness, Lady Lockwood, who said that the House prided itself on being representative, including its regional nature. For Members who live and work in the north, it would be very convenient to end the parliamentary week at the end of Wednesday. The noble Lord, Lord Gordon of Strathblane, explained eloquently the difficulties faced by Members coming from distant places.
For the most part I believe that my own anxieties last year are justified. The House is usually dead by lunch time on Thursday. We used to hold party meetings on Thursday in preparation for the following week, but we now meet on Tuesday or Wednesday, so at best in the middle of the week. My view remains that Parliament is diminished when Ministers are largely free, except for a few summer weeks, from their appearance in this House. On my own criteria, I can find no evidence that the experiment has been a positive success, at least in strengthening Parliament and raising its standing. But I recognise that the tide is flowing against what was once the majority and my own view, so I reluctantly acquiesce in the sixth report.
My Lords, I want to address another matter, but as it happens I agree strongly with the views just expressed by the noble Lord, Lord Rodgers. It is the duty of this House to hold Ministers to account, and as a result of this change we have made it easier for Ministers to come and give an account of themselves than was the case previously because now they hardly ever have to be present on a Thursday for that purpose.
Be that as it may, I am more concerned with the issue of Unstarred Questions, which the committee also addressed and to which the report referred. The Chairman of Committees was good enough to agree that I should submit a short paper to the Procedure Committee on this matter, in which I suggested that Unstarred Questions should be decided by ballot and not by the slightly magic-circle arrangements we have at present. Your Lordships know that one registers one’s interest in asking an Unstarred Question with the Government Whips’ Office. If one wishes, it can be put down under No Day Named as well, but at present one is not obliged to do so. Sooner or later the private secretary to the Government Chief Whip will offer a space for one’s Unstarred Question. I do not think that that is a very satisfactory arrangement because it leaves open to abuse the question of which Unstarred Question might be selected on a particular day. While I do not suggest for a moment that the noble Lord, Lord Grocott, has participated in any such abuse, at some future time a less assiduous Government Chief Whip might be tempted to reject or overlook an Unstarred Question that had moved to the top of the list.
The Procedure Committee has now suggested that all potential Unstarred Questions must be entered into the No Day Named list on the Minute, as well as some other changes to the Minute. I welcome that because it will mark a small improvement on the present arrangements. However, I still think that there are difficulties. The fact is that an Unstarred Question is an extremely attractive and effective means of holding Ministers to account and asking about matters of importance. However, at the moment it is difficult to get one except far in advance. That of course is more a question of supply and demand and thus perhaps a different matter. So I regret that the Procedure Committee did not see fit to consider or to agree to my suggestions, but I certainly support the improved arrangements now proposed.
Much of the discussion surrounding Unstarred Questions and the general debate day was included in the record of the proceedings of the Procedure Committee, which apparently has not been published. I have made inquiries about that. The Printed Paper Office was not able to help and, apparently, it has not been entered on the House of Lords website as is usual. I should be grateful if the Lord Chairman would look into the matter because that is a disappointment.
We now have a slightly more regularised arrangement for listing Unstarred Questions, but what happens to one which comes to the top of the list and the noble Lord in question cannot accept it—no doubt for perfectly good reasons? Does that Question then go to the bottom of the list or does he go on being asked until a slot is found to the convenience of all?
My Lords, I have noted the very important points made by the previous two speakers. I have not addressed myself to the merits of Wednesdays and Thursdays but I note that the committee recommends that your Lordships should make something permanent. Permanence is a very long time—perhaps longer than this House has been in existence—therefore I would have expected the committee to advance reasons for its choice. However, all it does is recommend that paragraph 5 be preferred to paragraph 6. The Chairman of Committees gave some reasons for the recommendation which I understood to be mainly statistical. For those Members of the House who are as non-numerate as I, having these figures waved about orally does not help us to reach a conclusion. Presumably, we are allowed to conclude for or against a committee report.
Would it be possible for the Lord Chairman to take the report back and print the reasons that he gave? I would have thought the House would require some written evidence of reasons of this kind. It may be that, in my enforced absence from the House, new practices have been introduced in the past six months—in which case, I am very sorry to draw the attention of the House to what may be a new practice—but committees should give reasons. If your Lordships agree that something be permanent without reasons having been printed, that would set a precedent. Could not the reasons at least be published on the understanding that if the House passes the report they will appear in print?
My Lords, the noble Lord, Lord Wedderburn, has a point; no reasons have been given. I agree with the noble Lord, Lord Rodgers, but he is too tender about his views. He asked whether the change had strengthened Parliament and raised standards. It has not. The committee should be congratulated on coming to the conclusion that it did if the option was to continue with the experiment or to go back to what it was previously. The previous system was a disaster; therefore the experiment, in so far as it is an improvement, is a good thing.
When we had set-piece debates on a Wednesday, sandwiched between government business on Tuesdays and Thursdays, the House was always full and people took an interest in what was going on. Now people come in on Thursdays, and the House is well attended to start with, but by lunch time it is half empty and by three o’clock, as has been pointed out, the place is dead. It cannot be right that at three o’clock the only people left are those taking part in the debate.
It was much better when the House sat at three o’clock on a Thursday. You had your party meetings before, the House sat at three o’clock and it was full. I know that one does not like going back on things, so perhaps the Lord Chairman could consider, in the next experiment, using the precedent used for the past 50 years which has worked extremely well. There is, I agree, one drawback: those who live in the north of England, Scotland, the Midlands and almost anywhere north of Shenfield find it disagreeable to spend a Thursday down in your Lordships’ House. It is only a Thursday, not a Friday or Saturday. Ten years ago, your Lordships’ expenses allowance, including night allowance and day attendance, was £107. Now it is £231.50 and we cannot be bothered to be here. I agree with the noble Lord, Lord Rodgers, that that is not strengthening Parliament. It is not doing Parliament any good or helping to hold the Government to account, if that is what we are supposed to do. I hope that when the noble Lord the Lord Chairman thinks of some new wheeze for the future, perhaps it will be to take the precedent which has worked extremely well.
My Lords, may I offer a rare word in support of the Government and therefore in support of the Procedure Committee? Having listened to the debate, I think that people’s perception of the past is different from mine. I have been here for 20 years, and this Government have been subject to more critical scrutiny and more adverse votes than any before. The idea that Ministers are getting an easy ride is the most preposterous thing I have ever heard. That is one problem. The second is the idea that these general debates are so marvellous. I may have been special, but I have addressed a large number of empty Houses over the years. I do not blame anybody for not wanting to come and hear what I have to say, but the notion that the House would be packed if it were on one day rather than another slightly eludes me.
I am not sure that I followed the argument of the noble Lord, Lord Trefgarne, but I think he said something that I agree with—that Unstarred Questions should be subject to a ballot. That is an extremely good idea. One slight drawback is that it would be tricky to include absolutely urgent Questions, but subject to that point, a ballot is overwhelmingly the best approach. I hope that the Procedure Committee will reflect on the noble Lord’s proposal.
More generally, the experiment has worked except for one other little bit: starting business at three o’clock is a waste of half an hour. I had the appalling experience a few weeks ago of forgetting that we started at three o'clock, wandering in and finding myself locked in Prayers. As you can imagine, that was the most horrifying experience for me. I would never have made that mistake if we had started at 2.30. I would like us all to reflect on the three o'clock start to protect some of us.
My Lords, perhaps it would be a good idea to bring this short debate to a close. I have heard a number of voices reflect the more traditional view on arrangements for Wednesdays and Thursdays. The noble Lord, Lord Rodgers, recognised that the tide had turned against the old Wednesday and Thursday arrangement; I hope that the noble Earl, Lord Ferrers, and others will also recognise that. I can see them not nodding but shaking their heads, but I am afraid that I have to tell them and the House that that is the way things seem to have gone.
I mentioned some statistics that the noble Lord, Lord Wedderburn, did not like, but they showed that attendance and, more importantly, participation in debates are, little changed from Wednesdays to Thursdays—a point made by the noble Lord, Lord Peston.
The three o'clock start, which the noble Lord, Lord Peston, raised, is an integral part of the Wednesday and Thursday experiment. It was called for because parties wished to arrange their party meetings on Wednesday afternoons between lunch time and the House sitting. The change, which was made in January, has been popular.
The noble Lord, Lord Wedderburn, and others asked why the report was not more detailed. Again, it is the custom for Procedure Committee reports to concentrate on the recommendations made rather than on the discussions that took place. The minutes of the Procedure Committee have yet to be put on the website but they are available for all to see in the Library, where noble Lords will be able to see the arguments deployed.
The noble Lords, Lord Trefgarne and Lord Peston, mentioned the balloting of Unstarred Questions. As the noble Lord, Lord Trefgarne, will know, because he was there, the Procedure Committee considered this but did not favour it. There are difficulties with having a ballot for an Unstarred Question, in that there is no fixed time for them.
The noble Lord, Lord Trefgarne, asked about Questions that are at the top of the list when the person who has tabled them does not want to ask them, or where it is inconvenient to take up an available slot. The current situation is that a noble Lord in that position can turn down a slot but still be offered the next available one. There are those noble Lords who do not wish their Questions to be taken that quickly and who therefore do not press for a slot.
I may have missed one or two questions, but I hope that that summarises the questions that I have been asked.
On Question, Motion agreed to.
Parliamentary Costs Bill [HL]
My Lords, I understand that no amendments have been set down to this Bill and that no noble Lord has indicated a wish to move a manuscript amendment or to speak in Committee (on Recommitment). Therefore, unless any noble Lord objects, I beg to move that the order of commitment be discharged.
Moved, That the order of commitment be discharged.—(Lord Falconer of Thoroton.)
My Lords, I asked the noble and learned Lord this question once before and got a pretty dusty answer. I expect that I shall get a dusty one today, too. When he has Motions down on the Order Paper, they appear under the name of the Lord Falconer of Thoroton, but it has always been the practice to put them down under the name of the Lord Chancellor, which is a very glorious name. The report that we have just been discussing refers to the noble and learned Lord as the Lord Chancellor.
The Lord Chancellor happens to occupy a very special place. The noble and learned Lord is not just any old noble and learned Lord—he is the Lord Chancellor. His name ought to appear on the Order Paper and not the name of the Lord Falconer of Thoroton. I do not expect the noble and learned Lord to give me an answer on this today, but perhaps he will be good enough to think about it and put the name of the Lord Chancellor down in future cases.
National Health Service Bill [HL]
National Health Service (Wales) Bill [HL]
National Health Service (Consequential Provisions) Bill [HL]
My Lords, I understand that no amendments have been set down to these Bills and that no noble Lord has indicated a wish to move a manuscript amendment or to speak in Committee (on Recommitment). Therefore, unless any noble Lord objects, I beg to move that the orders of commitment be discharged.
Moved, That the orders of commitment be discharged.—(Lord Falconer of Thoroton.)
On Question, Motion agreed to.
International Development (Reporting and Transparency) Bill
Read a third time, and passed.
Constitutional Reform (Prerogative Powers and Civil Service etc.) Bill [HL]
Read a third time; an amendment (privilege) made; Bill passed, and sent to the Commons.
Financial Services and Markets Act 2000 (Regulated Activities) (Amendment) Order 2006
My Lords, I beg to move the Motion standing in my name on the Order Paper.
Moved, That the order laid before the House on 29 June be approved [32nd Report from the Joint Committee] [Considered in Grand Committee on 18 July].—(Lord Evans of Temple Guiting.)
On Question, Motion agreed to.
Government of Wales Bill
3: Clause 7, page 4, line 32, leave out subsections (5) and (6) and insert-
“(5) The list must not include a person-
(a) who is included on any other list submitted for the Assembly electoral region or any list submitted for another Assembly electoral region,(b) who is an individual candidate to be an Assembly member for the Assembly electoral region or another Assembly electoral region,(c) who is a candidate to be the Assembly member for an Assembly constituency which is not included in the Assembly electoral region, or (d) who is a candidate to be the Assembly member for an Assembly constituency included in the Assembly electoral region but is not a candidate of the party.(6) A person may not be an individual candidate to be an Assembly member for the Assembly electoral region if he is-
(a) included on a list submitted by a registered political party for the Assembly electoral region or another Assembly electoral region,(b) an individual candidate to be an Assembly member for another Assembly electoral region,(c) a candidate to be the Assembly member for an Assembly constituency which is not included in the Assembly electoral region, or(d) a candidate of any registered political party to be the Assembly member for an Assembly constituency included in the Assembly electoral region.”
The Commons disagree to this amendment for the following reason-
3A: Because it is not desirable that, at any election of Assembly members, a person should be both a candidate to be an Assembly constituency member and a candidate to be an Assembly regional member
My Lords, I beg to move that the House do not insist on its Amendment No. 3, to which the Commons have disagreed for their reason 3A.
Since your Lordships’ House last debated this Bill, the Government have come forward with a package of amendments that I hope will form the basis of a cross-party consensus to achieve Royal Assent before the Recess. The package of amendments addresses a number of concerns quite properly raised by noble Lords during previous debates on the Bill. The arrangements for the composition of committees have been changed to make it clearer that the d’Hondt formula will be used only as a fallback if cross-party agreement cannot be reached. Concessions have also been agreed on the membership of the Assembly commission and the name of the Audit Committee. The debates on the details of the Bill have now been had. I hope that we can all join together to make the new powers work, rather than continuing to pursue old arguments.
The Bill’s passage and the success of the Assembly’s new powers rest in your Lordships’ hands today. If the Bill is delayed until the autumn, it will have to compete for scarce parliamentary time with other major legislation in the spillover. A delay would also condense into a dangerously short timescale a number of interdependent preparations that need to be made to implement the Bill; for example, the preparation of the new standing orders and a number of major pieces of secondary legislation, including the elections order, the disqualifications order, and the Schedule 7 amendment order. Unless the Assembly is able to start these preparations now, the success of the Assembly’s transition to the new powers could well be put in jeopardy. That is a view held not only by the Government but by the Assembly’s Presiding Officer, the noble Lord, Lord Elis-Thomas, and a former leader of Plaid Cymru, Dafydd Wigley. I am delighted to see the noble Lord, Lord Elis-Thomas, in his place as—I hope—we complete this Bill.
It is in that context that we consider the proposal in the Bill to put the voters back in charge by banning dual candidacy. The dual candidacy ban was an explicit manifesto commitment. Our 2005 general election manifesto stated that we would prevent candidates standing both on the list and in a constituency, in order to make all candidates genuinely accountable to the electorate, and to end Assembly Members being elected via the back door even when they have already been rejected by voters. That is a clear commitment from a manifesto that we took to the country last May and on the basis of which we won a resounding victory, both in Wales and in the rest of the country. Both Houses have considered the matter at length and the proposal was supported by considerable majorities in the other place.
There can be no question at all of the Government giving way on this issue. The ban on dual candidacy will strengthen the integrity of the Assembly’s electoral system and the legitimacy of regional Assembly Members. It will put voters in charge by enabling them to reject a candidate who can currently get in through the back door despite being rejected by the voters. I appreciate that the issue has aroused strong feelings, but we have a convention in this House that we do not stand in the way of a manifesto commitment of a democratically elected Government. To insist on this amendment would not only be a clear breach of that convention; it would put at risk everything else that the Bill seeks to achieve.
As the Liberal Democrat Assembly Member Peter Black has said, opposition to the proposed ban on dual candidacy is a,
“distraction from the real issues in the Bill”.
Mr Black is no fan of the proposed ban, but on that point I believe that he is entirely correct.
The Government have accepted a number of improvements proposed by noble Lords, and are seeking to move forward on the basis of consensus. The ban on dual candidacy is a manifesto commitment, and I hope that noble Lords will recognise that so that we can all join together in the interests of Wales.
Moved, That the House do not insist on its Amendment No 3, to which the Commons have disagreed for their reason numbered 3A.—(Lord Evans of Temple Guiting.)
My Lords, I begin by thanking the Government for accepting the thrust of our amendments on the composition and membership of the Assembly commission, Assembly committees and the title of the Audit Committee. These amendments were supported in the Division Lobby by substantial majorities of your Lordships and were clearly worthy of further consideration by the Government. We also had a new Welsh language clause, thanks mainly to the noble Lord, Lord Prys-Davies.
I am happy to acknowledge the Secretary of State’s rather negative but nevertheless welcome appreciation of our efforts when he said in the other place last Tuesday that he was,
“not seeking to deny that there have been real improvements to the Bill as a result of debates and arguments in the Lords and the amendments that have been moved there”.—[Official Report, Commons, 18/7/06; col. 192.]
That is in contrast to the very tetchy, almost hysterical remarks about the Bill’s prospects by the Secretary of State, which were surprisingly rather echoed in the Minister’s opening speech.
We can safely claim to have thrown some light on a few of the darker corners of the Bill and to have properly done our job of scrutinising it. Of course, we regret that the Government did not accept more of the amendments that your Lordships supported. One of them, which the noble Lord mentioned, preserved the dual candidacy system introduced by the Government in the Government of Wales Act 1998. That system has served Wales reasonably well in two Assembly elections. The prohibition of such candidacies under the present Bill has been roundly criticised by a string of authoritative bodies from the Electoral Commission to the Arbuthnott commission. Robert Hazell, the authoritative director of the constitution unit of University College, London, described it as,
“nasty, parochial and seemingly driven by partisan motives”.
The change is undoubtedly partisan in that it is an attempt to protect the interests of the sitting constituency Members against the rivalry of regional list members. It is not irrelevant that all Labour members of the Assembly are constituency members and none are regional list members. Whether the prohibition will succeed in improperly protecting sitting constituency Members remains to be seen. What it will do, as Arbuthnott pointed out, is,
“restrict voter choice and potentially diminish the quality of constituency contests”.
Political parties will have to find more candidates and this increase may affect quality.
Nevertheless, the fact has to be faced that the political parties in Wales have already reconciled themselves to the requirements of this legislation even before its passage into law and are already appointing candidates to contest the Assembly election next May. There is therefore not much practical point in pursuing our amendment. However, we remain of the view that the Government were wrong to make the change that they have done for the reasons that they made it. It was not justified, except in terms of very dubious party political advantage. I do not propose to suggest to my colleagues on these Benches that we support the Government; I suggest that they abstain.
My Lords, I apologise for not being here when the debate started, but it started 25 minutes early, which is very good. At this moment, I should be a steward in the Royal Welsh Show, taking around overseas judges to judge educational stands—20 in all—but government business managers have decided that I must be here today. Of course, this is very important legislation for Wales, and I could not possibly be anywhere else on this occasion.
Motion A, resisting Amendment No. 3, is one of the key issues that we have debated in the Bill. We find the system of election banning dual candidacies very unsatisfactory indeed. There are only three countries where this practice takes place: Ukraine, Palestine and Thailand. They are the only ones, and Britain, by selecting this particular method of banning dual candidacies, has by association put Britain into the same locker. Although the Government may argue the case for banning dual candidacies—and we all know about the Clwyd West situation, a one-off situation that is quoted ad nauseam—the perception is that it is a rather dodgy system that favours one party. That may not be the fact, but it is the perception, and that is particularly unfortunate.
As the noble Lord, Lord Roberts of Conwy, said, the Electoral Commission is among those who have criticised this most vociferously. In its submission to the Welsh Affairs Committee, which was looking at this system, it was not convinced at all of the need for a change. Also, the Electoral Reform Society has condemned it as not appropriate for the situation in Wales. None the less, the clock is ticking, and there are matters in the Bill, particularly the possibility of getting primary legislative powers in due course, that are too important to ignore. We have to look at this overall, but we can say that we are most unsatisfied with the electoral system. In the other place, our Members voted against it, and that is the elected House. Here, we must come to some kind of agreement.
It is with a heavy heart that I look at this modification. The Minister will know that we proposed the single transferable vote as our preferred system, which was also the recommended, preferred system of the Richard commission. The Government will not accept that, one might suggest, because there are divisions of opinion in the Labour Party about one or two of the aspects. I do not want to go on for a long time about that; we have had that debate. We will look at this as a final act that may come back to haunt the Labour Party in due course.
My Lords, I declare an interest as the Presiding Officer of the National Assembly for Wales. I apologise for my absences, which were in pursuit of that function, at a time when the political situation in the Assembly is of some interest to noble Lords. I apologise that I was not able to take part in the early debates. I thank all noble Lords who have participated, especially those who kindly referred to some of my remarks in my absence. I have been very well represented on earth by my friend, the noble Lord, Lord Livsey. I, too, should have been at the Royal Welsh, but we look forward to being there tomorrow.
I also thank the Government for the way in which they have compromised on the package of issues. I may say something later, on Motion C, about committee structure. However, as regards this issue, I am still of the view philosophically that it is wrong. I have concerns about its implications, but I am prepared to vote for it because it is more important that we get on with the Bill, for the reasons that the Minister indicated.
My Lords, I shall make a few brief points; if it is of any comfort to the Minister, I do not intend to say anything on the later Motions.
In another place, the Government provided two reasons for us giving way on this issue, and the Minister repeated them this afternoon. His first reason was that the timetable made it essential that the measure go forward this afternoon, so that Royal Assent could be obtained before we rose. Ministers should never advance that argument, because they establish the timetable by which Bills are brought before Parliament; if it were so vital that the legislation should receive Royal Assent, they should have arranged for the Bill to come before both Houses in enough time for the debate to be carried through to its proper conclusion. There seem to be only two possible alternative reasons for their having got us into this situation: that it was intentional, so that they could blackmail the House and say, “You simply have to agree or we won’t get Royal Assent”; or that it was the result of incompetence. I will leave it to noble Lords to decide which, but I do not think it worthy of Ministers to treat Parliament in this way.
The second main argument advanced in another place, and again by the Minister this afternoon, was about the manifesto commitment and the Salisbury convention. I have spoken on the future of the Salisbury convention not just in debates on the Bill, but when we considered procedural matters and in a separate debate. The whole issue has been well set out in a major paper, which is in the Library. It is clear that we will have to give further consideration to the Salisbury convention, which, after all, had its origins in a wholly different situation. I am particularly concerned about its application when we are dealing with manifesto commitments on electoral matters. Manifestos are usually lengthy documents not read by the electorate, except sixth formers under instruction on how the constitution works, and it seems a dangerous principle to advance that we are bound in Parliament to observe the will of the elected Government because they mentioned a matter in a manifesto. That would enable a political party to change the electoral system to its advantage and prevent Parliament blocking the proposal.
The change proposed on this occasion may not be felt to be of such significance that Parliament and this House should stand and fight, but one can imagine circumstances in which a proposal to change the electoral system should be resisted by this House. I want to record that I do not think that this occasion establishes a precedent. We should not accept that the Salisbury convention and manifesto commitments always bind this House to accept any proposal by Government to change electoral arrangements. That would be wholly improper.
As my noble friend said, it was also argued that all the political parties in the Assembly had already acted on the basis that the Bill would pass therefore there was no point in going back on it at present, or at least that it would cause a good deal of inconvenience to do so. But the political parties have noted that the Government were determined to get their way on this matter—as the Minister said, there was no question of the Government giving way. Again, that is not a powerful argument. The political parties were merely facing the reality of the situation in the House.
I was fascinated to hear the speech of the noble Lord, Lord Livsey, because, having read the debates in another place, my understanding was that the Liberal Democrats and the Government had reached a deal on the Bill: because of the need to get it through without further delay, and the concessions mentioned by the Minister, the Liberal Democrats would not stand and fight on this issue. However, the noble Lord, Lord Livsey, said that the Bill was very unsatisfactory and repeated many of the arguments advanced by his party in earlier debates. After all, his party, along with all the opposition parties, voted against the measure in the Welsh Assembly—as they did earlier in our proceedings.
I find it bizarre that the Liberal Democrats decided not to stand and fight on this issue. It makes it impossible for the rest of us to do so, because we all know that, without their support, there would be no chance of winning the vote and sending the amended legislation back to another place. The Liberal Democrats have sold a pass on it; that is a great pity.
Having made those points, I accept that we must now agree to this highly unsatisfactory measure. I do not withdraw a single word of the criticisms that I uttered against it on previous occasions; they have been well summed up by my noble friend on the Front Bench.
I shall make only two further comments. First, as I do not intend to speak again this afternoon, I take this opportunity to thank both noble Lords who have spoken for the Government on this matter for the patience and courtesy with which they have responded to our thorough examination of this Bill. I do not apologise for that thorough examination; that is the job of this House, and we have obtained some notable improvements.
I wish the Assembly every good fortune in the period ahead and hope that it serves the people of Wales well. I hope that we do not come to regret any part of this Bill, and that we can feel that at least we have taken a step forward for the benefit of the Welsh people.
My Lords, I agreed with so much of what the noble Lord, Lord Crickhowell, said that I was sorry that towards the end of his contribution he chose to attack the Liberal Democrats for inconsistency. We have been consistent on devolution since the first part of the 20th century and we have done everything in our power to advance that cause. When one considers the noble Lord’s approach to devolution, given that he opposed it when he was Secretary of State, if the right reverend Prelate will forgive me, Damascus and conversion come to mind.
My Lords, it was almost as notable as the contribution of the noble Lord, Lord Crickhowell, to this debate.
We do not like the concept of the abolition of dual candidacy. When the Government of Wales Bill first came before this House—I was the main spokesman for my party on it—we of course proposed proportional representation by the single transferable vote method, which the Richard commission said was the way forward, but we accepted the regional list as a measure that was heading in the right direction. At that time—I am sure that the noble Lord, Lord Elis-Thomas, will recall this—we were all of the view that Members of the Welsh Assembly would be indistinguishable whether they were regional list members or constituency members: they would all be regarded as Members of the Welsh Assembly who were doing their best for Wales.
It is unhappily the case that the electoral arithmetic has worked out so that Labour Members are constituency members and members of other parties—very many but by no means all of them—are regional members. They all started on a level playing field when the Assembly came into being and each of them had a reputation to make. One feels that behind the abolition of dual candidacy is the fear of Welsh Labour constituency members of the Assembly—certainly the weaker ones—that those regional list members who have made their reputation will oust them from their seats. As the noble Lords, Lord Roberts and Lord Crickhowell, and my noble friend Lord Livsey said, the Welsh Labour Party has played purely a political game with the electoral arrangements. It is not right that we should have this presented to us, as the noble Lord, Lord Crickhowell, said a moment ago, as something that we must accept because it was tucked into the Welsh part of the Labour manifesto during the previous election.
The noble Lord, Lord Crickhowell, has now been converted to speak against the Salisbury convention. He may recall, as other noble Lords will do, that the very first act of the leader of my party in this House in the Queen’s Speech debate following the election was to say that we did not regard ourselves as ever having been bound by the Salisbury convention. We were not party to it in 1946; the conditions had completely changed and we would not accept it for a moment as an argument. The noble Lord, Lord Crickhowell, made the very important point that the danger lies in electoral politics. Although this deals with the Welsh Assembly, it is a very short step to interfering with how Westminster representatives are elected by tucking a similar proposal somewhere in the small print of a manifesto and relying on it at a later stage in relation to this House.
This party will abstain on this Motion because we want the Bill to be enacted but that does not for a moment minimise our hostility to the concept of the amendment—that is, the concept that dual candidacy is to be abolished—and it does not mean that we accept for a moment the validity of the Salisbury convention.
My Lords, the noble Lord, Lord Thomas of Gresford, spoke about the Government’s motivation having a somewhat partisan spirit. I should like to correct him on at least one matter: not, I hope, in a partisan spirit but in the spirit of historical accuracy. He said that his party was from the beginning of the previous century in favour of devolution. That clearly prompts the question why, when his party had the ability to do something about this—that is, when it was in power before the First World War—it did nothing.
I am pleased that the noble Lord, Lord Crickhowell, paid tribute to the generosity of the Government’s response to the debate. There clearly has been a remarkable debate and very valuable changes have been made in the course of it. I am also pleased that the noble Lord, Lord Elis-Thomas, is at last here: he speaks far better in his own right than when others purport to speak on his behalf. We should always listen with great respect to what is said by the Assembly.
On dual candidacy, the assumption is that we have so much political talent in Wales that it does not matter if those who lose out in marginal seats are out of power for at least four years. But our pool of talent is not so great that we can afford to dispense with their talent, and I guess that there will be a danger of unintended consequences in that people will be reluctant to take on marginal seats on the constituency basis.
I follow the Government for a number of reasons. First, this was a manifesto commitment—not to be followed slavishly but to be followed in cases such as this. Secondly, this House should be reluctant to interpose its view on election matters in relation to the elected Chamber. Thirdly, we have gone over this course so often that I think it gives democracy a bad name when losers become winners. Therefore, I shall support the Government today without hesitation.
My Lords, the noble Lord, Lord Anderson, asked why, at the beginning of the last century, the Liberal Party did not move ahead with Welsh home rule. He may remember the great dispute regarding Irish home rule, which took precedence. The first measure was proposed in 1913 by ET John, a Liberal MP who later joined the Labour Party. But then we had the First World War and, after that, the Liberal Party was not in any position to move forward. However, I should like to know when the Conservative Party has ever proposed a devolution measure for a Parliament or Assembly for Wales. I do not recall that happening. I can go through manifestos and candidates’ election addresses but there will be no mention of it at all.
Does the Salisbury convention tie the Government and the Conservative Party to supporting not only measures in the UK-wide manifesto but also those in Welsh or Scottish manifestos? As we are talking about an election to a United Kingdom Parliament, I suggest that the only commitments to which any party is bound are those in a UK manifesto, not those in a Welsh or Scottish manifesto. Perhaps I may read what the Labour Party’s UK manifesto said at the last election:
“In Wales we will develop democratic devolution by creating a stronger Assembly with enhanced legislative powers and a reformed structure and electoral system to make the exercise of Assembly responsibilities clearer and more accountable to the public”.
That is what this Government were elected on. They were elected not on a Welsh but on a United Kingdom manifesto, and I suggest that the Government look again at that particular proposal. They and we are totally committed to accepting the specific point that was only in the Welsh manifesto. For the future, I think that we should ask whom the convention does and does not bind.
My Lords, I know that my noble friend on the Front Bench is getting restive—I detect that from the back of his neck. He obviously wants to get on with the debate, but perhaps he will allow me to say two or three words as I have been involved in this exercise for a considerable time.
I think that, however one looks at it, on the whole one should support the structure proposed in the Bill. It gives increased legislative competence to the Assembly and that is the object of the exercise. The whole thrust of the report of the commission which I had the honour to chair was that more power needed to be devolved to Cardiff and that it should have the power to legislate directly in certain areas.
The Government have come up with a set of proposals which, I am bound to say, I find complicated and complex. But if they can do what the Government claim they can, that will go a very long way towards implementing exactly what the commission recommended and was in favour of. The danger in the proposed procedures is that the relationship between the request by the Assembly and its consideration by Westminster is still unclear. I do not know what that relationship will be. How will it work? One has to hope that, although the devil is in the detail, perhaps there is a bit of virtue as well, and that once it has bedded down and been given the opportunity to work, one will achieve the Government’s objective of greater legislative competence in Cardiff.
I would not claim that this is a good Bill; I could not do that because it does not do what we are recommending. When the White Paper first came out, I said that in all the circumstances I would give the Government a B+; I would not give them an A. That is still my position. It is a respectable B+; in university terms, it is a respectable 2:1. It is not quite a first, but it steps in the right direction, so for that reason we should support it.
My Lords, I am grateful to all noble Lords who have contributed to this 35-minute debate—or 30 minutes, taking off my introduction. I do not plan to answer the points made. However, I must say to the noble Lord, Lord Roberts of Llandudno, that the Labour Party does not have a UK manifesto. We have one for England, Wales and Scotland. The commitment to reform the electoral system was in all three. There are strong principles and views on the matter that we have been discussing.
I am extremely grateful to the noble Lord, Lord Crickhowell, for his generous remarks, but not so grateful to him for introducing the debate on the Salisbury convention, which looked as though it would dominate the discussion. It was good to hear from my noble friend Lord Richard, the chairman of the committee that produced the Richard report. With my academic record, a B+ would have been a brilliant result. I beg to move.
On Question, Motion agreed to.
4: Clause 27, page 17, line 12, at end insert “not belonging to the same political group”
The Commons disagree to Lords Amendment No. 4, but propose Amendment No. 4A in lieu-
4A: Page 17, line 14, at end insert-
“(3A) The provision included in the standing orders in compliance with subsection (3) must (so far as it is reasonably practicable to do so) secure that not more than one of the members of the Assembly Commission (other than the Presiding Officer) belongs to any one political group.”
My Lords, I beg to move Motion B standing in the name of my noble friend Lord Evans of Temple Guiting that this House do not insist on its Amendment No. 4, to which the Commons have disagreed, but do agree with the Commons in their Amendment No. 4A in lieu. I shall also speak to Motion C.
The amendments concern the composition of the Assembly Commission and Assembly committees in general. As a Government, we have always recognised that having a proper political balance is critical to the future working of the Assembly, as evidenced by the provisions in Clause 29, which I shall come to shortly. We do not contest the principle that the Assembly Commission should be made up of members from different political groups. Therefore, I am pleased to be able to respond to the call to enshrine this in the Bill by offering our amendment in lieu of Amendment No. 4.
It provides that standing orders should require that, as far as is reasonably practicable, no two members of the commission should be drawn from the same political group. This does not include the presiding officer who will chair the Assembly Commission. The amendment simply clarifies the intended effect of your Lordships’ amendment and provides for situations that may arise in the future when in theory there may be fewer than four political groups in the Assembly.
Amendment No. 5 seeks to replace Clause 29 with a new requirement to ensure that Assembly committees have regard to party balance. The amendment shows that all sides of the House are in agreement on the key issue that committees of the new Assembly should be politically balanced. That has always been the Governmment’s intention.
As I stressed on Report, the amendment does not address the situation where agreement is not reached on the composition of committees. The aim is for the Assembly to reach agreement on the size and make-up of committees. The composition of committees should not be a matter of party-political contention, but should be the product of cross-party agreement. That is clearly the most desirable situation, and it is the one that obtains here and in the other place as a matter of course. We are familiar with that process. But the reality of the electoral system for the Assembly is such that there is a risk that that may not happen.
That said, the Government recognise the concern that has been expressed in your Lordships’ House and in the other place during the passage of the Bill; namely, that the provision in the Bill relating to the use of the d’Hondt formula should be explicitly worded as a fallback provision. One or two speeches were made against the entire concept, but I wish to emphasis again that the d’Hondt formula is merely a mathematical formula for resolving difficulties on the allocation of places.
The noble Lord, Lord Thomas of Gresford, said:
“If using the d'Hondt system is a fall-back, why do not the Government set out primarily that the numbers of a committee and its make up are to be determined by agreement, and that in the event of disagreement the formula is to apply? ”.—[Official Report, 19/4/06; col. 1136.]
The noble Lord, Lord Henley, speaking for the Official Opposition, expressed concern that Clause 29 as drafted required the Assembly to contract out rather than contract in to d’Hondt. He wanted greater emphasis on the use of the formula as a fallback. That is what this amendment delivers, and I believe that with this amendment, noble Lords will be reassured that that is expressly the intention.
The other concern expressed during debates on this clause was that it disadvantages smaller parties and independent Members. In response, I point out that this amendment reinstates the provisions to ensure that independent Members and those belonging to smaller parties—I want to give that assurance to the noble Lord, Lord Elis-Thomas, who is in his place—are entitled to a place on a committee, subject to there being enough committee places to make that possible. We believe that that is crucial to safeguard the interests of independent Members and those who represent smaller political parties.
I hope that in listening to both your Lordships’ House and the other place, we have satisfied the concerns expressed while ensuring that the Bill gives direction as to what should happen in the event that parties within the Assembly fail to reach a consensus.
There were two concerns. The first is what to do about smaller parties and how to recognise that with four main parties, very small committees raise problems. The d’Hondt formula works perfectly with a committee of 10 and the present composition of the Assembly. It provides exactly the right proportions between the parties. The difficulty would be if the Assembly set up smaller committees. However, the Assembly will be mindful that, like all parliamentary assemblies, it wants to guarantee that its committees properly and fairly reflect its composition.
Secondly, there was rather more suspicion about the d’Hondt formula than was justified. It is merely a mathematical formula very widely used across the known democratic world to resolve the technical problem of how to produce fractions of a member and round them up into proper representation on a committee. The concern expressed was that the Government appeared to put such store by the d’Hondt formula that it was elevated to a significant principle in the Bill rather than being a mechanism for resolving difficulties. It is not a principle. I emphasise again that it is a fall-back position when agreement cannot be reached.
I hope that noble Lords will recognise that our amendments resolve that position and meet the two main objections raised at previous stages.
Moved, That this House do not insist on its Amendment No. 4 to which the Commons have disagreed, but do agree with the Commons in their Amendment No. 4A in lieu.—(Lord Davies of Oldham.)
My Lords, I thank the Minister in particular for the conclusion in the amendment about fair representation on the Assembly Commission. We put forward the amendment and there was a lot of support for it throughout Wales. The Conservative Party supported it, too. Common sense has very much come to the fore. It is important with a committee of four and the presiding officer, which affects the whole of the Assembly, that it is fairly representative with one Member from each political party. So I would like to thank the Ministers and their teams for listening and accepting the amendment. Amendment No. 5A has replaced Amendment No. 5. We were greatly exercised by the d’Hondt formula on the original amendment—more exercised than the Minister is by this. I will not go into the difficulties of the calculations involved. As the Minister has pointed out, there is no doubt that minority parties are excluded from smaller committees. We want an inclusive Assembly that can consider all the matters brought before it.
We believe that Amendment No. 5A is a compromise. As the Minister said, it is a last resort to use the d'Hondt formula. This has been considered and although we are not entirely satisfied with the outcome, we can be satisfied that the Government have listened and come forward with a new amendment that meets nearly all our concerns.
My Lords, we are very glad that the Government have taken note of Lords Amendment No. 4, which we supported, and that they have proposed their own amendment which should ensure a better party political balance in the membership of the commission. It is of course a very important Assembly body and should represent the interests of the Assembly as a whole. It should certainly not be the tool of the governing party.
The Minister drifted on to Clause 29 and Amendments Nos. 5 and 5A. I propose to do the same in order to abbreviate our proceedings. Again we are glad the Government have taken note of our amendment. If my memory serves me right, we led on this amendment and the Liberal Democrats put their names to it. The Government have brought forward their own amendment whose emphasis is clearly on the duty of the Assembly to secure party political balance on its committees and sub-committees. I think that that emphasis is right. But, at the same time, one has to acknowledge that the Government may well be right in that it will not be easy to secure agreement and the support of two-thirds of the Assembly membership every time. At least we can say that the Assembly Members will have had their chance to resolve their difficulties before the d'Hondt formula comes into play. We believe that the Government's amendment is an improvement on the original proposal.
My Lords, I make one brief point. I appreciate the Minister’s comment that the amendment to Clause 29 is not a matter for party-political contention, and that this is now a fall-back position. I am glad to see that an Assembly Member who does not belong to a political group is entitled to be a member of at least one committee.
I have a small concern on Amendment No. 5A. New subsection (1A)(b) requires two-thirds of Assembly Members to vote in support of a Motion. I put on record my hope, although it may not be achievable, that that is a two-thirds majority on a free vote. The reason is that a committee may need to ask questions that are uncomfortable for the Government of the day. If it was a two-thirds majority on a whipped vote, the Government of the day could effectively veto the proposed constitution of such a committee; whereas, if it was two-thirds of the Members on a free vote, each Assembly Member could vote according to their conscience. I hope that such a position never arises, but I should like to have that concern flagged up on record at this stage. Otherwise, like other noble Lords, I greatly appreciate that the d'Hondt formula has now become a fallback position; I hope that it will remain as such.
My Lords, I support Motions B and C and inform the House—I know that many noble Lords and Members in another place follow events in the Assembly in detail—that, by using the device for electing Assembly committees, we have established the shadow commission which has met formally on at least three occasions. It indeed includes a member of each political group. Therefore, I very much welcome the amendment. I hope that, when the commission becomes statutory under the Bill, it will be able to pursue its activities in a non-party-political, non-partisan way. Having representation from each political group will help us to do that.
On Motion C, I also welcome the reference to independent Members. We seem to have more and more independent Members in the present Assembly. In the post-2007 Assembly, there may be even more. I hope that no such Member represents Dwyfor Meirionnydd, otherwise I am in difficulty. However, that proposal is very welcome—as, indeed, is the whole compromise on this matter.
I have been particularly concerned about the establishment, selection or election of committees and their size and function. I was especially concerned when d'Hondt appeared rather late in the day. D'Hondt did not appear in the White Paper or in early versions of the provisions; d'Hondt suddenly appeared in the Bill. I publicly admit to having carried on a bit of a campaign on this matter because d'Hondt would not have been an appropriate way to establish committees in the first instance. I accept the compromise that it is a backstop, but to set down in the Bill that all committees, with a few exceptions, would have to be constituted in that way would have meant that all committees would have had to have 10 members. Already, half of the Assembly would be committed to being members of committees. There is clearly inflexibility in that approach.
Now, we will have three stages: I hope a negotiated agreement for committee structures; if not, a two-thirds majority approving them by resolution. My noble friend Lady Finlay said that she is concerned that committees should ask critical questions of government. I hope that all Assembly committees will be willing and able to ask much more critical questions of government than they have done so far. She referred to a free vote in the establishment of committees. That is a very important principle. I am sure that she has already read the detail of Sir Jeremy Beecham's report. She will find a section there on scrutiny that advocates that very principle: that scrutiny committees in local government should be elected without a party whip and on a free vote. I hope that we can pursue that matter. I am especially anxious to encourage the scrutiny of government policy by its own supporters, those who are part of its vote, in any parliamentary institution. We have not perhaps seen as much of that in the Assembly as we might.
I had better not go on in this vein because I might be accused of being negative, which I would never want to be. I warmly welcome the willingness of the Government to compromise and the way in which Ministers have sorted this out. I pay tribute to the Liberal Democrats and all Members who have helped to bring this about.
My Lords, I am grateful to noble Lords who have spoken in this debate, particularly for the support from the two Front Benches and their recognition of the move that we have made in response to their arguments. However, I must insist again that d’Hondt was there as an aid, support and mechanism. It was never a principle for which this Government would die at the stake on these issues. The basis on which we expect to work is that the Assembly should be responsible for creating its own committees and composition by consensus.
I am grateful to the noble Baroness, Lady Finlay, for her comments. She will know that we appreciated her contribution that d’Hondt should be only a fallback position. It is an odd concept to say, “I am so much in favour of a free vote that I will establish in legislation what parties should do”. That is to misunderstand how parties organise themselves in Parliament. I cannot think how such legislation could ever be enforced on a political party, which is why we did not contemplate it. There are enough difficulties about free votes within a legislature without the law seeking to intrude and bring in an element of compulsion. Therefore, I do not accept that.
I am grateful to the noble Lord, Lord Elis-Thomas, for indicating that progress has already been made on the commission on the basis of representation, and for his understanding that we should bear in mind the need for a fallback position on the composition of committees. I am less enthusiastic about his concept of the independent Member, but I hear what he says about expecting more in Wales: we will just have to ensure that any seats are held by Labour.
On Question, Motion agreed to.
5: Clause 29, page 18, line 9, leave out subsections (2) to (9) and insert-
“( ) The standing orders shall include provision for ensuring that in apportioning members to committees and sub-committees regard is had to the balance of political parties represented in the Assembly.”
The Commons disagree to Lords Amendment No. 5, but propose Amendments Nos. 5A, 5B, 5C and 5D in lieu-
5A: Page 18, line 9, leave out from beginning to first “the” in line 12 and insert-
“(1A) The provision must secure that the appointments to the places on each committee are (if possible) determined by a resolution of the Assembly-
(a) which secures that its membership reflects (so far as is reasonably practicable) the balance of the political groups to which Assembly members belong, and(b) which (if the motion for it is passed on a vote) has no effect unless at least two-thirds of the Assembly members voting support it.(2) The provision must secure that, if the membership of a committee is not so determined-
(a) the person appointed to the first place on the committee is an Assembly member belonging to the largest political group, and(b) ”
5B: Page 18, line 38, after “of” insert “the provision made in compliance with”
5C: Page 19, line 1, leave out from “provision” to “the” in line 12 and insert “must modify the operation of the provision made in compliance with subsections (1A) to (7) with a view to securing that (so far as is reasonably practicable having regard to the total number of places on committees)-
(a) every Assembly member who does not belong to a political group is entitled to be a member of at least one committee, and(b) ”
5D: Page 19, line 16, after “under” insert “the”
6: Clause 30, page 19, line 18, leave out “Audit Committee or Pwyllgor Archwilio” and insert “Accounts Committee (or Pwyllgor Cyfrifon) or any other name that the Assembly chooses to allow through its standing orders”
7: Page 19, line 20, leave out “Audit” and insert “Accounts”
8: Page 19, line 22, leave out “Audit” and insert “Accounts”
9: Page 19, line 29, leave out “Audit” and insert “Accounts”
19: Clause 142, page 78, line 13, leave out “Audit” and insert “Accounts”
20: Page 78, line 19, leave out “Audit” and insert “Accounts”
The Commons disagree to Lords Amendments Nos. 6, 7, 8, 9, 19 and 20 but propose Amendment No. 20A in lieu-
20A: Page 19, line 19, at end insert “or by such other name as the Assembly may determine; and, if the Assembly makes such a determination, references to the committee in-
(a) any enactment (including any enactment comprised in or made under this Act) or prerogative instrument, or(b) any other instrument or document,have effect accordingly.”
My Lords, I beg to move that this House do not insist on its Amendments Nos. 6, 7, 8, 9, 19 and 20, to which the Commons have disagreed, but do agree with the Commons in their Amendment No. 20A in lieu.
Your Lordships’ amendments, tabled by the Conservatives, seek to re-name the Assembly’s Audit Committee as the Accounts Committee. The Government do not agree with the Conservatives’ wish to dictate a name to the Assembly, particularly one that the Assembly has expressed a preference for avoiding so that the committee is not confused with the House of Commons Public Accounts Committee.
However, the Government recognise that the Assembly should be able to decide for itself what this committee should be called, as the Liberal Democrats stressed during consideration of the Bill. We therefore propose an amendment in lieu which explicitly gives the power to the Assembly to change the name of this committee if it so desires, while avoiding the technical defects of the amendments from Report stage. I hope we can all agree that it is appropriate for the Assembly to decide on its committee names and I therefore ask the House to support the amendments.
Moved, That the House do not insist on its Amendments Nos. 6, 7, 8, 9, 19 and 20, to which the Commons have disagreed, but do agree with the Commons in their Amendment No. 20A in lieu.—(Lord Evans of Temple Guiting.)
My Lords, the Government are right to leave the door open to the Assembly to change the name of the Audit Committee. There is a strong case for calling it an accounts committee, as my noble friend Lady Noakes pointed out in earlier debates, because its work will approximate in character the kind of work done by the Public Accounts Committee in this Parliament. At the same time, I realise that considerable consequential changes would be necessary if the name of the committee were changed now. The Government are right to leave the Assembly to assess the situation.
My Lords, we too think that this is a very satisfactory outcome. The amendment is a combination of amendments originally tabled in Committee by both the Conservatives and the Liberal Democrats to allow for a wider choice in the name of the committee and we are pleased that the Government have now brought forward Amendment 20A. It will allow the Assembly to decide on the name, which takes us to the place we wanted to reach. We should like to thank Ministers for that.
17: Clause 94, page 51, line 42, at end insert “, provided that such an Order is not to the detriment of those who have either benefited from or acted in reliance upon the state of the law before the retrospective Order is made”
21: Clause 149, page 82, line 14, at end insert “, provided that such an Order is not to the detriment of those who have either benefited from or acted in reliance upon the state of the law before the retrospective Order is made”
22: Clause 150, page 82, line 40, at end insert “, provided that such an Order is not to the detriment of those who have either benefited from or acted in reliance upon the state of the law before the retrospective Order is made”
The Commons disagree to these amendments for the following reason-
22A: Because it is desirable that an Order in Council under Clause 150 should be able to include any provision having retrospective effect which appears appropriate
My Lords, I beg to move that the House do not insist on its Amendments Nos. 17, 21 and 22, to which the Commons have disagreed for their reasons numbered 17A, 21A and 22A.
I appreciate very much the acuity with which the noble Lord, Lord Kingsland, has scrutinised these and other provisions of the Bill. Our debates in this House and in another place have quite properly required the Government to explain and justify their proposals in detail. I note that Lords amendments recognise the principle that retrospective provision may be necessary in certain circumstances. I note also that the shadow Attorney-General in another place said on 20 July at col. 220 that he fully accepted that this provision was intended to rectify technical omissions. We are talking about provisions that would be used only on rare occasions. Concerns were expressed in another place that if any individual’s rights should be affected, they should be guaranteed redress. These concerns are important and I recognise that noble Lords opposite have quite properly pressed further and further on a point on which they wanted reassurance; I hope that I can give that reassurance.
These constrained powers to make retrospective provision will enable technical points to be dealt with which protect the position of a person who acted in good faith on Assembly legislation only to find that there was some doubt over whether that legislation was within the Assembly’s legislative competence. The power in Clause 94 would allow the Assembly’s legislative competence to be corrected retrospectively should that prove necessary to give proper effect to the intention of Parliament in granting that competence in the first place, and when not to do so would leave the law unclear or could be detrimental to third parties.
Noble Lords rightly asked about cases where it might be to the detriment rather than the benefit of third parties to correct the law retrospectively. What if a court had already decided in their favour? I have confirmed in a letter now available in the Library, in response to points raised on Report by the noble Lord, Lord Kingsland, that the Government would not seek to use these powers to undermine court proceedings where the vires of an Assembly measure was at issue. I am happy to add that the Government would not make an order that retrospectively altered a court’s decision and that if any future Government should seek to do so, clearly Parliament could be expected to block it. The Government could not alter the fact that the court had taken a particular view on the vires of an Assembly measure but they might need to take action in consequence of a court’s decision. It is not possible to predict what that action would be, but one cannot rule out the need to include retrospective provision.
In another place, the shadow Attorney-General asked for,
“a clarifying statement to make it absolutely clear that if it is established that private legal rights are effective retrospectively in any way, the person affected will be entitled to redress”.—[Official Report, Commons, 18/7/06; col. 221.]
That has to be right in principle. I find it hard, though, to imagine circumstances where that might become an issue given that the purpose of these provisions is, as I have said, to deal with technical points and to ensure that persons who acted in good faith on the basis of Assembly legislation are not disadvantaged if it is subsequently found to be ultra vires.
However, I can offer reassurance in this sense: any Assembly measure would have to treat private legal rights fairly in the first place. If it did not, and therefore was not compatible with the European Convention on Human Rights, it would not be law and no amount of retrospective provision under the Bill could make it law. If, however, the measure treated those rights fairly and it was only a technicality which meant that some provision in it was ultra vires, then to remedy the technicality would simply restore what was intended to be the status quo. Any persons affected by provisions in the measure would continue, therefore, to be entitled to the compensation or other redress provided for in the measure itself.
I would expect any Government to weigh these issues very carefully and to satisfy themselves that no person’s rights would be affected without proper redress if retrospective provision was made. If they did not, of course, Parliament could block the proposal, as I have said before. Ultimately it would be for the courts to establish whether an individual was legally entitled to redress or greater redress than already offered, and it is proper that the court should be the ultimate arbiter in those circumstances.
In the light of the reasons I have given, I hope noble Lords opposite will accept the Government’s view that these amendments should not stand. I beg to move.
Moved, That this House do not insist on its Amendments Nos. 17, 21 and 22, to which the Commons have disagreed for their reasons numbered 17A, 21A and 22A.—(Lord Evans of Temple Guiting.)
rose to move, as an amendment to the Motion, leave out from “House” to end and insert “do insist on its Amendments 17, 21 and 22”.
The noble Lord said: My Lords, the charm and diplomacy of the Minister is greatly appreciated; but, I fear, as far as I am concerned, to no avail. I do not find his reassurances sufficiently reassuring. It may be intended that the clause should deal with technical points; but the consequence for the private individual of dealing with those technical points continues to worry the Opposition.
Our constitution abhors retrospection. When a citizen’s private rights are breached and he is damaged as a result, he is invariably entitled to redress. Retrospective powers enable the Government to abandon that principle. That is why we challenged Clause 94(4) on Committee and Report.
At Third Reading we offered the Government an olive branch. We suggested that retrospective powers would be acceptable as long as such powers were not exercised,
“to the detriment of those who have either benefited from or acted in reliance upon the state of the law before the retrospective Order is made”.—[Official Report, 13/7/06; col. 840.]
To this proposal we have received an ominously evasive response—first from Ministers in this House and then from the honourable Member Mr Ainger in another place, who said:
“There could be public interest considerations in favour of making retrospective provision. It is not right that the Government should be prevented from taking the public interest into account in making legislation”.—[Official Report, Commons, 18/7/07; cols. 218-19.]
I cannot decide whether that is a profoundly ingenuous or profoundly disingenuous remark. In either case, such a proposition should never be allowed to justify retrospection. Of course the public interest should play a part in deciding what the law should be in the future; but it has no part to play in determining the application of existing private rights. That kind of thinking engendered the Acts of indemnity so beloved of Tudor and Stuart monarchs.
Mr Ainger claimed that there remained the protections of the Human Rights Act and of our own parliamentary procedures. However, in continental jurisprudence, the rule against retrospection is much less well entrenched than in our own common law. Despite the Human Rights Act, for example, the Government were perfectly happy to claim the other day that the Compensation Bill conformed with the convention even though it contained a clause that is plainly retrospective. That is an example of the Human Rights Act undermining the traditional protections of common law.
As to the protection of Parliament, at least the Burma Oil legislation in 1965 had to go through the full legislative procedures of both Houses. In this case, there would be a single vote on an unamendable draft order after derisory debate.
From the evasiveness of the Government responses, I can only conclude that they do indeed intend on occasions to alter existing private rights retrospectively and in circumstances where those who lose out as a result will suffer. I remain astonished that they should subscribe to something so meretricious. I beg to move.
Moved, as an amendment to the Motion, leave out from “House” to end and insert “do insist on its Amendments 17, 21 and 22”.—(Lord Kingsland.)
My Lords, at Third Reading, I expressed the concern felt on these Benches about the introduction of retrospective legislation in any form. I received assurances from the Minister at that time and those assurances were expanded on by Mr Ainger in another place, when he made the Government’s policy abundantly clear. Although our reservations remain, we are of the view that it would be extraordinarily difficult for this Government, or indeed any Government, to attempt to introduce legislation that altered the rights of individuals in the way that we discussed at Third Reading. Therefore, we are content for the Government to have their way without giving them any support if there is a vote.
My Lords, I am afraid that the noble Lord, Lord Kingsland, and I are not going to agree on this. We have been over this ground a number of times, but I have a few things to say for the record.
The concerns expressed about retrospective provision affecting the rights of individuals, and the Government’s assurances on that point, are now very clearly on the record in both Houses. The Government would not seek to make retrospective provision while a court case was proceeding, without the knowledge and leave of the court. They would not seek to change a court’s order retrospectively although they might need to take action subsequently in the light of that decision.
The noble Lord, Lord Kingsland, asked what redress an individual had in relation to retrospective provision made in such subordinate legislation. The individual could take a claim to the courts. An Order in Council under Clause 94 that breached human rights would be struck down by the courts or declared incompatible with those human rights depending on the circumstances.
In considering whether to make retrospective provision, the Government would take into account how private interests might be affected. If they foresaw that there might be some unjustifiable detriment to individuals for which the Assembly legislation did not already provide redress it is inconceivable that they would seek to make retrospective provision.
Finally, Parliament would be able to reject any proposal which it felt was an inappropriate use of the power to make retrospective provision. For those reasons I invite the House to reject the amendments.
My Lords, I am most grateful to the Minister for responding in his characteristically generous way. He demonstrated the difference between us in a very short phrase, when he referred to “unjustifiable detriment”.
We believe that the key to making retrospectivity acceptable in this case is that there should be no detriment. Yet the Government, themselves, in forming the order, would take a view about whether the detriment would be justifiable and whether, therefore, an existing private right could justifiably stand. In my submission, that is totally against the rule of law and therefore to us wholly unacceptable.
I listened with care to what the noble Lord, Lord Thomas of Gresford, said. He and I have worked together on many occasions and, although we represent different political parties, I think that we can say that we are good colleagues. When the noble Lord stood up at Third Reading, he said in the first sentence of his observations, “We support this amendment”. Indeed, it is fair to say that we discussed its terms before I finally decided on the text. He has now indicated that he will not support it in the Lobby, although he also said that he would not vote against it.
When he was in full flight at Third Reading, he checked and swerved. He was perfectly entitled to do that; but, in doing so, again he undermines any chance that we have of winning a vote on the amendment now. So, despite the fact that we believe very strongly in the principles that the Government are now undermining, we shall not press the amendment to a Division. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
On Question, Motion agreed to.
18: Clause 103, page 57, line 37, leave out from “Parliament” to end of line 44
The Commons disagree to this amendment for the following reason-
18A: Because it is important that the Secretary of State should have discretion to refuse to lay before Parliament an Order in Council for a referendum about the commencement of the Assembly Act provisions which has been requested by the National Assembly for Wales
My Lords, I beg to move Motion F standing in the name of my noble friend Lord Evans of Temple Guiting, that the House do not insist on its Amendment No. 18, to which the Commons have disagreed for their reason numbered 18A.
The House will appreciate that the amendment seeks to remove the Secretary of State’s discretion over whether and when to lay a draft referendum Order in Council before Parliament if the Assembly passed such a request on a two-thirds vote. The purpose of Clause 103 is to ensure that the Secretary of State responds to a request from the Assembly within a proper timescale. It is right that such a request cannot simply be sat upon, but the amendment would compel the Secretary of State to lay a draft order before Parliament within 120 days.
We had intensive debate on this matter at Third Reading, and I recognise the concerns that have been expressed by noble Lords—principally that a hostile Secretary of State should not be able to frustrate or obstruct the will of the democratically elected Assembly, particularly when it had passed the measure on a two-thirds majority. This concern was expressed by the noble Lords, Lord Livsey and Lord Thomas of Gresford, in that debate. I recognise that this is a point of principle for the Liberal Democrats. However, I genuinely believe that the Bill as originally drafted meets their concerns and serves the cause of the Assembly better than the amendment proposed by the Official Opposition.
I repeat what I said at Third Reading. Any governing party in London that sought to block a decision by two-thirds of Assembly Members in Cardiff would pay a heavy political penalty. If a Secretary of State were wilfully to attempt to thwart the clear will of the elected representatives of the people of Wales, after a referendum request had been given full and detailed consideration by the Assembly, and approved by two-thirds or more of Assembly Members, the consequences would be grave, both politically and constitutionally.
In the event of a hostile Secretary of State being foolish enough to block a referendum—that was the concept envisaged by noble Lords when expressing anxiety about this—the amendment, as I said, would do nothing to restrain him. In such circumstances, he would simply have the referendum order thrown out in a whipped vote in the House of Commons. The referendum could not be a defence against a Secretary of State determined to pursue such a wilful cause.
The most effective check on such recklessness is not constitutional but political. A referendum request approved by two-thirds of Assembly Members would have the momentum to carry it forward. It cannot be conceived that a Secretary of State would risk political annihilation in Wales in the face of such a broad consensus. I know noble Lords on the Liberal Democrat Benches said that it might not always be a Secretary of State from my party, with its broad sympathy for the ambitions of the people of Wales, and that a Conservative Secretary of State might think differently, but I do not think political reality could envisage such a cause.
I shall respond to the points raised in the debate we had at Third Reading, and in the other place, when we considered this issue. The Order in Council process is a mechanism to bring about the referendum. If an order is to be laid before Parliament, that is properly for a Minister of the Crown. The Assembly cannot lay the order; neither would it be constitutionally appropriate for the Assembly to be able to force the Secretary of State to lay the order before Parliament. The clear line of constitutional accountability that we are seeking to preserve in this Bill is that the Secretary of State, as a member of Her Majesty’s Government, is accountable to Parliament, not to the Assembly. It is just not appropriate, as I think is being sought on the Opposition Benches, for a Minister who is accountable to one legislature to be instructed to do something by another.
I repeat what I said for the Government at Third Reading: our objection to this amendment is not that we wish to aggrandise the role of the Secretary of State. Indeed, I do not see a real difference of principle between the concerns expressed by the Liberal Democrats and our position. The Government’s objection to the amendment is that we do not think it is constitutionally appropriate. I ask noble Lords opposite to consider the significance of that.
There are also, at a much lower order of consideration, practical reasons why the Secretary of State should not be constrained to lay a draft order within 120 days. In the event of there being an unsympathetic UK Government, the order would certainly not at that stage have been agreed. What if the Assembly were not happy with the content of the draft order that was produced? The clock would start ticking, and there would be no way of stopping it to allow further time for negotiations before the draft itself had been laid.
In summary, the Government reject the amendment because we have a clear constitutional process to follow, which the amendment would distort. There are, in addition, practical considerations to take account of, and, fundamentally, if the collision were such that the Government in the United Kingdom objected to the referendum of the people of Wales passed by two-thirds of the Assembly, there would be high politics at play, with serious consequences for a Government that pursued such a course. Any attempt to obstruct the process, after a referendum request had been approved by the Assembly, would provoke a constitutional storm. It is not possible to envisage a Secretary of State opting to act in such circumstances. If he were bent upon such a course, he could take other action to frustrate the will of the National Assembly. This amendment would not be beneficial, which is why I hope that the House will support the Government’s position. I beg to move.
Moved, That the House do not insist on its Amendment No. 18, to which the Commons have disagreed for their reason numbered 18A.—(Lord Davies of Oldham.)
My Lords, given all the circumstances that the Minister has outlined, one is tempted simply to ask him why on earth the Secretary of State hangs on to this power. I listened very carefully to the Secretary of State’s rejection of the amendment in the other place last week, and I have listened to the noble Lord’s remarks today. Frankly, I am not convinced that the Secretary of State’s alternative role of blocking an Assembly resolution asking for a referendum, backed by a two-thirds majority of the seats, instead of laying an order before Parliament to authorise the holding of a referendum is remotely justifiable.
The Government’s view is that the Secretary of State cannot be compelled in this regard. The Secretary of State has said that and we have heard it again today. The relevant remarks of the Secretary of State are recorded at col. 232 of Commons Hansard of 18 July. He argued that he could not be compelled to act by the Assembly. However, he is not being compelled to act by the Assembly but by this legislation, passed by this Parliament. Clause 103(3) states that the “Secretary of State must”—I emphasise the word “must”— “within … 120 days” of being told of the resolution by the First Minister,
“(a) lay a draft of a statutory instrument containing an Order … or
(b) give notice in writing to the First Minister of [his] refusal to do so”.
We have heard Ministers argue that the Secretary of State must have time to prepare the statutory instrument and to consult, but time is provided by the clause, which was drawn up by Ministers. They specified 120 days.
As I made clear at Third Reading, the purpose of our amendment was to eliminate the Secretary of State’s right of refusal to lay an order—a refusal that would also deprive Parliament of the opportunity to express its wishes in response to the Assembly’s call for a referendum. Again, I ask why on earth he needs this power. I am still convinced that it is wholly wrong to allow the Secretary of State to thwart the Assembly’s will and as a result to deprive Parliament of its rightful opportunity to express its wishes regarding a referendum. The Government have failed to justify this power, but we have to view it in context, and that context is probably one in which a referendum is a very remote possibility indeed.
The fact that the referendum to bring in Part 4 is currently out of political range means that the Bill is heavily dependent on the complex, gradualist mechanism of Part 3, which even the noble Lord, Lord Richard, finds complex. We have made clear that we believe that Part 3 is seriously flawed. It is one of the reasons why I believe that the Bill will not provide a lasting settlement.
I hope that those who attend the Secretary of State’s reception in Cardiff tomorrow to celebrate a “new dawn of devolution”, as he describes the Bill, are not befogged by the hype and remember the Explanatory Notes’ modest description at paragraph 309 on page 62 that,
“with minor exceptions … the Bill does not itself confer additional legislative powers on the Assembly; rather, it provides a mechanism whereby such powers can be conferred on a case by case basis as appropriate, with Parliamentary consent”.
That is what the Government’s own Explanatory Notes say. That is the true extent of the enhanced powers granted to the Assembly. The real enhancement is in the power of Ministers, including the Secretary of State.
I thank the Ministers who have dealt with our debates, over seven days in all on the Floor of the House. I also thank the Bill team who have supported them, and all who have participated in shaping this legislation. I shall not be pressing my colleagues to vote against the Government on the Motion.
My Lords, I believe that contained in Motion F is the recipe for some conflict in the future. Those of us who soldiered on, for example in the 1979 referendum on whether there should be a Welsh Assembly, can conceive of any kind of outcome that could occur. Although the Minister pleads sweet reason to us—and I accept what he said, because he said it in good faith—there is no doubt that a whole series of circumstances could come along to dog Wales yet again on getting the kind of powers that it needs to rule the country with resolution and intelligence and to release the energies of the Welsh people.
Even though the Assembly has voted by two-thirds in favour of an Order in Council to hold a referendum, the Secretary of State can intervene. As the Minister said, there may be a hostile Secretary of State who might be inclined to deny the opportunity in spite of a two-thirds vote. We must ask, certainly in constitutional affairs and constitutional reform: which Secretary of State? Who is to say that the shelf life of a Secretary of State for Wales will be very long? Given that more powers are being transferred to Wales—I hope not until there are full primary legislative powers for Wales—there could be a situation where “the Secretary of State” would not be the Secretary of State for Wales but would be the Secretary of State for Constitutional Affairs. The Bill is so phrased that a Secretary of State for Constitutional Affairs might have a radically different view of whether the referendum should go through an Order in Council and be accepted. The Bill says that he or she has the right to refuse it; you only have to look at Clause 104(3)(b) to see that staring you in the face.
We have made quite a lot of progress with the Bill in the way that Wales is eventually creeping to democracy. We have a long way to go, but this is undoubtedly some progress. There are a lot of convoluted problems with the Bill, which is why, as the noble Lord, Lord Richard, said, it is only worthy of a B-plus. I sincerely hope that we will end up with a proper constitutional settlement for the whole of the United Kingdom; a federal constitution where the powers lie where they should do. The Richard commission report had a good go at that by saying where the powers should lie in what would be a Welsh Parliament or Welsh Assembly with primary legislative powers. The issue about where the appropriate powers should lie has to be sorted out one day. We should not really have this long march around all these bends, corners and obstacles to get there.
There is no doubt that there has been good will on all sides. I thank the Conservative Front Bench, whom we worked with closely on many of the amendments. Some of the things that we wanted have been achieved. I thank the Minister for that, and the Bill team who have worked extremely hard. I also thank the Presiding Officer of the National Assembly—the noble Lord, Lord Elis-Thomas—who put his case today far more eloquently than I did, although I attempted to do it despite what the noble Lord, Lord Anderson, said earlier. There has been lot of co-operation.
The Bill will do as a constructive stop-gap to give more power to Wales. Let us hope that Wales will get the proper legislation that it deserves not too long in the future.
My Lords, I hate to disagree with my spokesperson in this House over the past few months, but this is much more than a legislative stop-gap. I do not want to excite the noble Lord, Lord Roberts of Conwy, but the Bill lays on the statute book all that is necessary for the proper governance of Wales in the 21st century. That is a significant step forward.
There has been a lot of imaginative constitutional talk in this debate. Could we ever conceive of a situation in which a Secretary of State of the United Kingdom Government would take a certain view about a potential referendum in Wales without there having been full consultation, even before the Assembly adopted a resolution requesting a debate? Surely we will not have a political party in power in the United Kingdom Government that is not represented in the National Assembly. Unless some English nationalist party appears, I cannot imagine such a thing; some would argue that we have one already on the Benches opposite, but I shall not go into that contentious area.
This is a constitutional convention. Any resistance by a Secretary of State would be more likely to bring about the demise of the great historic office held with such distinction by the noble Lord, Lord Crickhowell, and others in this House. The Secretary of State is a constitutional invention in terms of the Bill. We are in the conventions of the quasi-federalism that we are struggling towards within the United Kingdom, on which I agree with my noble friend Lord Livsey. Therefore, I welcome the Bill and the Motion.
I join in the congratulations to officials, who are mainly officials of the National Assembly—or the Welsh Assembly Government, as we will have to learn to say—and the Wales Office. They have served us well in drafting the legislation. I am especially grateful to the noble Lord, Lord Crickhowell, for his kind expression of good wishes for the future of the Assembly and for what it may or may not do. In fairness, I am sure that his party has played a great role in the development of the Assembly. We have had consensus about important areas, especially the separation of powers which are not covered by the amendments, so I shall not go into them. To me as Presiding Officer through a difficult period in the first two Assemblies, the separation between the Executive and legislature is the clearest signal that what we have here is proper parliamentary democracy.
My Lords, I am grateful to the three noble Lords who have spoken. Once again I marvel at the ability of all Members of the House to be able to translate relatively minor amendments into significant constitutional principles. As the noble Lord indicated, that has kept us on our feet for seven days during the passage of the Bill. I had hoped for a little rest on the seventh day, but we do not seem to be getting any due to the scrutiny of Members on the other side of the House.
This is a fairly minor amendment. It is about laying the order within 120 days. I emphasise that it does not make any material difference. If the United Kingdom Government of the day did not support the order passed by the Assembly with a two-thirds majority, they would be into high politics. If we passed this amendment, a Government would find other processes to thwart a referendum called, because they would clearly be taking a position of substantial opposition to the declared will of the majority of the people of Wales.
The Bill as drafted tries to take the point into account by quite properly forcing the Secretary of State, who is answerable to the United Kingdom Parliament, to face up to the demand for a referendum. In the unlikely event of a Secretary of State refusing to lay the referendum order, he would have to explain his reasons for doing so and would be publicly accountable for those reasons. That would be the basis of the political decision-taking that would result from such a crisis—because it would be a crisis. In such circumstances, this amendment would be immaterial to the decisions of Government.
I am grateful for noble Lords’ constructive work on the Bill. We have laboured long and hard in the vineyard and it is good to see the results. I am grateful to the noble Lord, Lord Roberts, who said that the Bill had its merits—although in a rather minor key. He did, however, express a broad commitment to the development of devolution, which we welcome in the main opposition party. He has had rather more enthusiastic support from some of his Back Benches, and we have noted that, too. That augurs well for further progress.
I also recognise that the Liberal Democrat Party is committed to devolution and regrets that the Bill does not go far enough. However, the noble Lord, Lord Elis-Thomas, with his responsible role as Presiding Officer of the Assembly, accurately expressed the position—namely, that the Bill opens up the process of enhanced powers for the National Assembly, of which it can avail itself through judicious consideration of Orders in Council.
The Bill marks a significant step in the eventual transition of the National Assembly from its present role to that of a much more enhanced Assembly with fuller devolution powers. The Bill deserves support in those terms. It certainly does not deserve to be frustrated by this rather minor amendment at this stage. I therefore hope that the House will support the government Motion.
On Question, Motion agreed to.
My Lords, with the leave of the House, I will repeat a Statement made by my right honourable friend in another place on the Government’s plans for reform of the child support system.
“Mr Speaker, parents, whether they live together or not, have a moral as well as legal responsibility to support their children. Relationships end; responsibilities do not. Government and society have a clear interest in making sure these responsibilities are honoured. That was the foundation on which the Child Support Act 1991 rested. I believe that these are the right foundations on which to build any future system of child support.
“However, as we know, and despite the best efforts of its staff, the overall performance of the CSA has fallen well short of expectations. When we came to office, the agency cost more to run than it collected in maintenance, and it has been taking longer to process claims than the court arrangements it replaced. The 2000 Act made important changes: simplifying maintenance calculations and allowing parents with care on benefit to keep up to £10 of any maintenance received. Since 1997, the agency has nearly doubled the number of cases receiving maintenance payments.
“However, problems have persisted. Only a minority of cases handled by the CSA receive any maintenance. There is a backlog of around 300,000 cases. Debts of over £3 billion have built up, with limited prospects of recovery. There is a net cost to the taxpayer of around £200 million per year. And levels of customer service, although they have improved recently, have never reached the standards of quality and consistency that the public are entitled to expect.
“The need for radical overhaul is clear. I do not, however, believe the continuing problems are a failing of the staff of the agency, but rather the policy framework and the system they are being asked to run. That is why, in February, I asked Sir David Henshaw to redesign our system of child support. He has now presented his recommendations to me. Copies are available in the Vote Office and on my department's website, together with the Government's response.
“Sir David has recommended an entirely new system for child support, which will be simpler to use and administer, tougher on parents who do not face up to their responsibilities, and make a bigger impact on reducing child poverty while delivering value for money for the taxpayer. There are four main elements to his recommendations. First, he believes that the system should focus on tackling child poverty by ensuring that parents with care keep more of the maintenance owed to them. Sir David recommends that lone parents on benefit should be allowed to keep more maintenance by significantly increasing the extent to which child maintenance is disregarded in income-related benefits.
“Secondly, Sir David believes that a new system should promote greater personal responsibility by ensuring that, wherever possible, we should help parents come to their own financial arrangements for the maintenance of their children. This means reconfiguring advice services to improve the quality and accessibility of information and guidance for parents. Sir David also believes that the Government should remove the requirement that parents with care on benefits make an application for child maintenance through the CSA, even when there is a perfectly satisfactory private arrangement already in place. As a first step to getting maintenance flowing to children, Sir David recommends that, with up to a fifth of potential child support cases not having their father's name on their birth certificate, we should consider the joint registration of births.
“Where parents cannot come to an amicable agreement, parents with care need to have confidence that the enforcement arrangements will be effective. So the third element of Sir David's recommendations is to introduce new, tougher enforcement powers, including the withdrawal of passports, and exploring the potential to make better use of existing financial penalties.
“Fourthly, Sir David has proposed that there should be a clean break with the past. He believes that the delivery of child support requires a fresh start with a new organisation. Sir David believes that there should be no automatic conversion of cases from the two existing schemes to the new redesigned system. Instead, parents wishing to use the new system will be able to reapply. He recommends that there should be a separate residuary body to manage down and enforce old debt and that we should consider how best to give the new organisation the power to charge clients for using the new system.
“Sir David has consulted widely in producing these recommendations and I am grateful to him for his work and to all those who have contributed to it. As Sir David's report shows, tougher enforcement and a substantially higher disregard could increase the number of children receiving maintenance to 1.75 million, compared with just 1.1 million today. This will also lift many more children out of poverty. A smaller, more focused agency that deals with significantly fewer cases will deliver better value for the taxpayer with administrative costs substantially lower over the long run.
“Although there is still a great deal of detail to be worked through, I think it is right that the Government should signal their view of the way ahead. We have decided to accept these principal recommendations. We will bring forward legislation at the earliest opportunity to remove the requirement that all parents with care claiming benefit are treated as applying for child maintenance.
“We agree with Sir David's recommendation that there should be a higher disregard. But this must ensure a fair deal for taxpayers and avoid sending any signal that families might be better off apart than together. So we intend to significantly increase the level of the current disregard of £10. Details will be confirmed later this year. Both of these changes will help more families to receive more maintenance and reduce the risk of child poverty. They fully reflect both the rights of children to be properly maintained by their parents and the right of society to ensure that parental responsibilities are properly discharged.
“We also agree that the delivery of child support requires a fresh start. We will therefore create a new organisation to replace the CSA and we will strengthen enforcement powers. But we will go further. We intend to seek legislation to strengthen the powers available to the agency to recover maintenance from those who repeatedly fail to pay, including through the imposition of curfews as well as the suspension of passports. We will explore publicising successful prosecutions including the feasibility of naming those so prosecuted. And we will continue the CSA's current operational improvement plan, which is already improving our capacity to trace people who owe maintenance and which should see the Child Support Agency collecting a further £250 million in unpaid maintenance.
“There is a great deal of detail in Sir David's report that should now properly be the subject of fuller consultation and debate. In particular, we want to consult on: the best way to allow existing claimants to either move to private arrangements or make a claim to the new system—we must ensure that where people currently receive maintenance through the CSA they continue to do so, if they wish to, under the new system without disrupting the payment of child maintenance; how best to deal with the legacy of debt that is left, protecting both the interests of families and the taxpayer; the appropriate role for the courts in this new approach; how we can improve parental responsibility from birth, including the possibility of compulsory registration for fathers; how we can further simplify and improve the current assessment, collection and enforcement processes; and the details of a new charging regime.
“In advance of legislation, I intend to publish a White Paper later this year that will set out in greater detail the way forward in all of these areas. In the mean time, I have asked Sir David to report to me on the policy and implementation issues that arise from his first report.
“During this process of change the staff of the agency are entitled to expect the full support of my department. They will have it. In particular, we will do all that we can to help and support staff through the transition to the new organisation and in their efforts to ensure that children and families receive the maintenance to which they are entitled.
“The original proposals for child support had a wide and broad measure of support. But this consensus over aims was never translated into a consensus over means. We must not repeat the same mistake. That is why I want the new arrangements that must now be established to command the broadest possible measure of agreement.
“There is a clear sense, both in this House and outside, that our system of child support needs radical change. It must offer better value for money for the taxpayer. It should enforce the rights of children and the responsibilities of parents more successfully. It must ensure that families and children in particular do not slide into poverty when parents split up.
“I believe that the proposals I have set out today can help us better to achieve these vitally important objectives and that is why I commend this Statement to the House”.
My Lords, that concludes the Statement.
My Lords, I am most grateful to the Minister for repeating the Statement made by his right honourable friend the Secretary of State for Work and Pensions in the other place.
I could not agree more with the sentiment that parents, regardless of whether they live together, have a moral as well as a legal responsibility to support their children. We can also agree that no one is happy with the chaotic way in which the CSA has performed the task of getting money from absent parents to the parent with care. Chaotic it is: 267,000 new cases and 66,000 old cases are still waiting to be sorted out and 25 per cent of the cases received since March 2003 are waiting for clearance. Clearance itself takes a ridiculous three weeks to achieve and, when that is over, as the recent National Audit Office report showed, half of those are wrong. It is no wonder that it costs the agency 70p for every £1 that it collects and that there is an estimated £3.5 billion of outstanding maintenance to be collected. It is this fact that is the real scandal and where every effort should be directed. Yet, for the 1.5 million families trapped in the old system, today’s announcement will be a big disappointment.
There are two main reasons why the present system does not work—and unless we understand what has happened, we run the risk of repeating mistakes. The first reason is the difficulty in finding the absent parent. I understand that the Government are looking at addressing that in their efforts to get joint registration of birth certificates, but that is a serious problem with existing families. It should not be beyond the wit of man to use all the references, such as the electoral list or state pension records, to find the father—for it is usually the father.
The second difficulty is, once found, that of assessing the income of the absent parent, who may be in irregular employment. However, the real problem here is that the agency tries to assess their current income. That relies to a large extent on the honesty of the individual. The problem does not occur with the self-employed, who are assessed on the previous year’s income. Why cannot everyone be assessed in that way? It would be easy enough to ascertain through the individual's income tax form, which, by law, every employer has to give to his employee. If, during the year, the income went up, the payments would automatically be processed the following year. If, however, the income was lower, the absentee parent would have to provide evidence in the way of wage slips for the assessment to be adjusted downwards. No doubt some hard cases would appear but they would fade into total insignificance beside the 333,000 parents with care whose children are facing hardship right now.
There is no reason to suppose that the new agency will be any more successful than the old one if it is constantly struggling to establish an accurate basis of assessment. Although we had understood that Sir David was looking at this in his redesign of the system, there was no recognition in today's Statement of the importance of this fundamental issue to a robust system of child maintenance.
On the subject of parents on benefit keeping more of the maintenance owed to them, can the Minister give an indication of the level of disregard being contemplated? Can he tell us whether any research has been undertaken on whether the level of disregard could prove to be a disincentive for some struggling families to stay together?
We share the view of promoting greater personal responsibility, where parents reach their own arrangements and the state becomes the last resort. Yet we all know that that is not always so neatly delivered in the real world—hence, the birth of the CSA in the first place. Can the Minister say what advice will be given to parents who wish to sort things out as amicably as possible?
Noble Lords will know from our debates on the Children and Adoption Bill—I am looking at the noble Baroness, Lady Pitkeathley—that we on these Benches believe strongly in the presumption of co-parenting. A child has a right to reasonable contact with both parents if their relationship breaks down, and that provides emotional and financial stability. David Levy, president of the United States Children's Rights Council, says that the benefits of shared parenting were apparent not just in fewer costly disputes going to court but in increased child support payments. Consensus Bureau statistics showed that fathers with shared parenting rights paid twice the amount of fathers with no contact. I do not for one minute argue that payment should follow contact but it is clear that, in the best interests of the child, the state should do all it can to facilitate contact. Will this issue be part of the consultation?
We are told that Sir David would like a clean break with the past—a fresh start with a new organisation. I should think that that is exactly what the parents caught in the present system long for, especially as it will bring huge financial benefit. Yet they will not automatically transfer to the new system. Parents wishing to use the new system will have to reapply. If all parents in the old system reapply, will the new system be able to cope or will the service be rationed? If there is to be a service charge, will it apply to parents from the old system, even if that system let them and their children down?
We shall follow the consultations with interest, but no redesign will work unless we address the fundamental flaws, learn the lessons of the past 13 years and act on them. No rebranding will work unless there is a real change in the arrangements of the families involved. Without that change, the Government will continue to let down hundreds of thousands of lone parents and limit their children’s potential to have the best start in life.
My Lords, I, too, thank the Minister for reading the Statement made in the other place. I also thank him for the courtesy of a telephone call this morning in which he outlined the principal findings of the report. However—I think this point should be made—it is ridiculous that substantial reports of the type produced by Sir David Henshaw, and, indeed, the Statement, are not made available to Front-Bench spokesmen, at least in the morning, so that people have a few hours to study them. There is no possible question of market sensitivity or anything else in this case. I think that that would be a basic improvement to democracy in this country and I cannot see what it would cost.
“Thirteen wasted years”. Those who, like me, have relatively long political memories will recall that that was the slogan with which Harold Wilson swept the discredited 1964 Douglas-Home Tory Government out of office. It is a horrible irony that 13 wasted years is what the lone parents and their children have had to endure in this country under both Governments. The Statement says:
“I do not … believe the continuing problems are a failing of the staff of the agency, but rather the policy framework and the system they are being asked to run”.
Does the Minister accept that, in plain English, those weasel words really mean that there has been management failure at the very top by Ministers and top civil servants and that the dither and delay that we have seen over many years has contributed substantially to that?
Sir David's report is fine as far as it goes. It is strong on analysis but not very strong on prescription and on what has to be done now. I am bound to say that it reads more like a report from someone with a public-sector rather than a business background. My heart sank when I read that we are now to have a further consultation—indeed, a report—from him on the ways to implement it. How many reports, redesigns and consultations do we have to have before decisions are taken and we move on?
On Sir David’s specific proposals, I agree with the suggestion that parents should keep more of the maintenance owed to them. It is important to maintain the principle that the parent who has moved away should still contribute as far as possible. If there is a disregard, I believe that it should be at a high level with as much personal responsibility as possible.
Of course these arrangements need to be enforced properly. We are happy to consider new powers but, as always with Blairite initiatives, one must ask whether the existing powers are being properly used. The agency already has powers to remove driving licences, but just 11 were removed in the five years up to 2005. That seems to me to be quite an effective power. If the Government are to bring in any new powers, they should ensure that they are used.
There must also be concern about how morale is to be maintained in the rump CSA, if I can call it that—or residuary body or whatever—which inevitably for some time to come will have to carry on dealing with the existing cases. Morale must be bad enough already. Will Mr Geraghty remain as chief executive of whatever the agency now is, and what steps will be taken to ensure that those cases are progressed?
Specifically, what will happen to existing cases in the system? It would be heartbreaking for families who are well through the system to be told that they have to go back and start all over again. We must know the answer to that. It is the sort of thing that the Government and the Minister should have thought about. It is no good just to say that we are to have a few more months’ consultation. That is totally unsatisfactory—the issue needs to be faced up to.
The key question relates to existing cases and existing debt. There are a third of a million cases and £3.5 billion of arrears, each case averaging £10,000. What is going to happen? I listened carefully to the Minister but I heard no answer to that. It is not satisfactory to say that it will be a matter for consultation. It should be a matter for the Government to decide. These are good ideas but action is painfully slow. We must move very rapidly to action and not consultation.
My Lords, I am grateful to the noble Baroness, Lady Morris, and the noble Lord, Lord Oakeshott, for their comments. I think that I detected some support for some of the principles proposed but I had to work hard to do that. In general, I hope that there will be an opportunity for some constructive debate around the current consultation and the White Paper that will come later in the autumn.
I fully agree with the noble Baroness, Lady Morris, on the moral and legal responsibility of parents to their children. Sadly, the experience of the past 13 years has been that too many parents have sought to evade their responsibilities. That is part of the problem that the agency has had right from the start. There have been signs of improvement in the performance of the CSA in the past year or so, which I shall come to later, but clearly, taken as a whole, the CSA was not delivering what was required of it—hence the need for the Henshaw redesign and the Government’s decisions on the general intent of the way forward, and hence the need for further work in certain areas. Noble Lords have mentioned a number of those areas and I shall come to them.
The noble Baroness, Lady Morris, said that there are two reasons why the CSA is not currently working: the first is the problem of finding absent parents, and the second is the problem of assessing income. She then referred to the need for the agency to assess current income. She will know that there is a requirement to do that frequently if there are changes in income. There is no question but that, as part of the next phase of work in the redesign of the child support system, we will need to look carefully at how to make the system somewhat more streamlined. If she has had a chance to go through Sir David Henshaw's report, she will know that paragraphs 123 to 126 refer to some of the discussions on the role of her Majesty's Revenue and Customs. Sir David suggests that greater co-operation between the CSA and HMRC may be one way of providing further information which can be used. But that is clearly work that we need to take forward.
On the question of tracing absent parents, I agree with the noble Baroness. Under regulations that we passed in this House just a short time ago, the agency already has the power to contract private companies for tracing services. That is part of the new processes which the agency is currently undertaking to improve its ability to track down absent non-resident parents. The report refers to the question of birth registration and the desirability of registering fathers at the child’s birth. We will consider that matter in the consultation period.
The noble Baroness asked about the level of maintenance disregard. I cannot give her that information now as we need to do further work on it. As the Statement said, however, the increase will be significant. She also asked about experience in other countries and whether such arrangements were likely to provide reverse incentives in family break-ups. I suppose that there is a theoretical possibility, though little empirical evidence to suggest, that that would happen. We are, after all, talking about relatively small sums, and many events and factors play a part in people’s decision to separate. I would also say that in many cases there are additional costs to those who separate and leave the family home. So we do not believe that this will turn out to be a particularly major problem.
I very much agreed with the noble Baroness’s comments on the contact issue. She was right to refer to the Children and Adoption Bill and to the potential for ensuring that contact orders are both made and well enforced. I am sure she is right to say that we cannot link child support payments to contact, as such a dispute is between the two parents and the person who would suffer is the child who does not receive the flow of money. However, I think that contact is very important. The noble Baroness asked what kind of advice we would want to give parents to encourage them to try to resolve some of these issues themselves. We will be establishing a group across government to consider that, because clearly a holistic, integrated approach in dealing with all matters to do with separation would be very beneficial.
The noble Baroness and the noble Lord, Lord Oakeshott, raised questions about a clean break, how that would apply, and what would happen to the current caseload. Sir David Henshaw’s view is that one of the major organisational problems in the history of the CSA—at the beginning, in 1993, and in 2003—was the transferral of cases on to a new system, which has proven extremely problematic, as noble Lords will know. In order to make the new arrangements work effectively, Sir David believes that the new organisation has to start with a clean sheet, and that it will be a major problem if it is contaminated by the existing caseload. He therefore suggests that a residuary body deal with the existing caseload, to reach a situation where parents on the existing system are given an option of discontinuing and going private, as they will be able to resolve issues and carry on satisfactorily, or of going on to the new system as new applicants. We want to consult to see whether that is the right approach. Clearly, if money is flowing satisfactorily from one non-resident parent to the parent with care, the last thing we would want is to disrupt those arrangements.
I have answered one or two points raised by the noble Lord, Lord Oakeshott. On reports to the Front Bench, I have always tried to do my best to give as much advance warning as possible, and I shall continue to do so. The noble Lord talked about the 13 wasted years. There is no question but that the problems of the CSA, which have continued over 13 years, have been very difficult indeed for many parents caught up in the system. The fair answer to the noble Lord’s question is that we have tried our level best to get the current system to work properly. I pay tribute to my noble friend Lady Hollis, who did a sterling job in her stewardship of those matters. However, as Sir David Henshaw said, it is not simply a matter of an administrative or operational problem. There have been many systematic failures, such as the fact that the parent with care on benefits is forced into the system; that incentives to comply are very low; and that too many non-resident parents do everything they can to evade their responsibility. Unless one considers those matters in the round, one will never get a satisfactory child support system. That is the whole purpose and point of having a higher benefit disregard, ending compulsion and doing everything we can to encourage parents to act as responsibly as possible, while ensuring that if it does not work, there is an organisation to which parents can turn that will be efficient and tough on enforcement.
The noble Lord, Lord Oakeshott, asked about enforcement and welcomed the prospect of new powers, though he also asked whether the agency is using the powers that it has. The answer must be no—historically, the agency did not use its powers to fullest effect. But that is changing. Last year, 15 people served custodial sentences for matters to do with child support, and the number of liability orders has increased considerably. There are good indications that the agency is prepared to use enforcement more enthusiastically. We want that to continue while we are looking at other measures that could be taken.
The noble Lord, Lord Oakeshott, also asked about morale in the Child Support Agency, and he is right to do so. Child support law is in operation. Many cases are going through the CSA system, and it is important that they continue to go through. We have agreed to the operation of an improvement plan, which will continue. We will do everything we can to see that the CSA improves its current performance as we move to the new arrangements. The question of leadership of the future organisations is a matter on which we shall have to decide in due course, but I pay tribute to Mr Stephen Geraghty, chief executive of the CSA, who has now been in post for a little more than a year. He is doing an excellent job and has pulled together a very good executive team. Again, I pay tribute to the work of my noble friend Lady Hollis in enabling that to happen.
Sir David Henshaw's report refers to debt as a matter requiring close attention, and indeed it does require attention. However, I remind the noble Lord, Lord Oakeshott, that we passed an order only a few weeks ago that allows the agency to contract out some of the debt collection, and the move is already showing signs of positive results. The first lot of letters warning customers that debt collectors may soon be coming round to knock on their door has produced a positive response and resulted in money being paid up. We are keen to chase down what debt we can.
My Lords, I welcome two aspects of the Statement and have two worries about it. Like other noble Lords, I welcome the additional disregard which, in so far as it will help to address child poverty, will be splendid. I could only ever get 10 quid out of the Treasury, so any more that my noble friend can get would be a real bonus for children. I hope that the earnings disregard for part-time jobs, which is currently 20 quid a week, will also go up; that will overcome some of the disincentives that the noble Baroness spoke about.
I also welcome the emphasis on co-operation in the Henshaw report and in the Government’s report. Anything that reduces conflict, gets parents to come to an agreement and therefore encourages contact must be good for the child. Agreement, co-operation and additional resources to children are all good for their well-being, and we must welcome them.
My two worries are, first, whether an essentially voluntary system will produce more money for children than a more compulsory one. After all, that is where we all came in in 1992. It can, but only if the parent with care has sufficient leverage vis-à-vis the NRP than at present. For example, the NRP may well say, “We’ll agree on 20 quid and you can have it. I know I should be paying 40 quid, but if you go for that, I will duck and weave and you won’t get your money”. He may bribe, lie, withhold information and behave like too many self-employed men by concealing his income. I am sure we all want to ensure that the parent with care has sufficient leverage—perhaps by getting his P60 at the end of each year—to know the basis on which she should expect to get the maintenance to which she and her child are entitled.
Secondly, transition has been only lightly touched on. It is not possible, despite Sir David Henshaw’s report, to have a clean break. If an NRP has a new relationship and a new child, there may also be a child in the old system and a child in the system introduced in 2000. If maintenance is to be arranged voluntarily in the new relationship, the arrangements in the two previous cases have to be recalculated. There is no choice. On average, every new case coming into the system has 2.5 linked cases. I have traced 29 linked cases. They all have to be recalculated. That is why the computers failed last time. I hope that my noble friend will be able to tell us how the linked cases will be dealt with. Any new case under the new system means that the old cases have to be reassessed; otherwise, the NRP is paying too much to all three families.
It is absurd that something like three-quarters of those on the child maintenance assessment system are parents with care on benefit. In turn, the NRPs are largely—60 or 70 per cent of them—on tax credits or jobseeker’s allowance. As a state, we are paying money to them, and if only we could net off the maintenance due to the parent with care and pay the NRP net, we would not need to redesign the system at all. We would get rid of that problem, which forms the bulk of the cases in the agency. It is bizarre. We will need to think about the tax credit system, the JSA system, transition and linked cases and whether voluntarism will work.
Finally, I thank the staff. They have been mentioned today. They have done a heroic job under difficult, demanding and often abusive circumstances. As a result of their work, around 1 million children are getting maintenance that they would not otherwise get.
My Lords, I welcome my noble friend’s welcome of the general principles on disregard and more co-operation. As to her two worries, Sir David said that a clean break was necessary, and I have already given his reasons for that. He recognised that more work needed to be done to explore the practicalities of that approach. He will be taking that work forward in the next stage. That is why we are having two consultations. We considered it appropriate to bring his first report to Parliament as soon as possible, to state the key things that we are in agreement with and those areas in which further work needs to be undertaken, leading to the White Paper later on. We think this is the best way to consider the kinds of issues that my noble friend has raised.
My noble friend’s second point was to question whether this will raise more money. She said that it would, but that it would depend on leverage by the parent with care. That is an important factor, particularly for vulnerable parents with care, and we must ensure that this system can operate to their benefit. Clearly, some of the work will be on the advice, guidance and focus of that work. It will be open to the parent with care to seek an assessment from the new organisation and to pursue that, but I am taken with the points raised by my noble friend and will consider them carefully.
My Lords, the Minister said that he accepts the recommendation that there should be a clean sheet and a new organisation. That new organisation will need new staff and—God forbid—new computer systems and all that goes with that. At the same time, there is what the Minister referred to as the “residuary body”. He makes it sound as if it is a diminishing body but given the continuing problems—the backlog of payments, the unsettled cases—it will be no smaller than the current CSA, and possibly even bigger, to sort out the problems. So we have something at least as big as the existing CSA and something else. What estimates have the Government made of the cost? They must have made some estimates or they could not have accepted Sir David Henshaw’s recommendation. Will the Minister put that in the context of the 5 per cent efficiency savings to which his department has already committed as part of the current comprehensive spending review?
My Lords, I am grateful to the noble Baroness for referring once again to the challenge my department faces in meeting efficiency targets. I am ever mindful of that. Clearly, more work needs to be done on costings, which will take place over the summer. To give some ballpark figures, the current agency costs more than £460 million a year to administer. To put that in perspective, around £200 million was recovered for the Secretary of State by the agency’s impact on income support expenditure and £80 million through other routes. The current system therefore has a net cost to the taxpayer of around £200 million a year. The model put forward by Sir David will see a smaller, more streamlined and more effective agency which he thinks will see administrative savings of around £200 million a year in the long run. It will be more efficient and will deal with a smaller caseload than the current CSA. Of course, there will be costs associated with the transition and the increase in the benefits disregard. At this stage, I cannot say what those costs are, but we are looking long term at a considerable reduction in the administrative cost of running the child support system.
My Lords, the House will want to acknowledge the service that Sir David Henshaw has done in producing his report, but the Minister is right to detect caution in the welcome for it because it is short of detail and of a timetable. The Minister will know that this is the third White Paper about this agency, and I hope that it is third time lucky.
In the White Paper will the Minister make it clear that in the clean break, to which he referred, that Sir David Henshaw recommends—which, as I understand it, entails a move to a commissioner of services rather than a government agency as we have come to know it—the contractualisation and the role played by private contractors will be an improvement on that which the EDS played in providing computer services to the CSA. If there is a White Paper, surely that means there is little, if any, prospect of a legislative slot in the Queen’s Speech to get these changes enacted. When, for example, will the 46,000 resident parents with care who were on income support under the old scheme, and getting paid maintenance but getting no financial advantage, be able to take advantage of this system?
My Lords, I thank the noble Lord for his cautious welcome, and, indeed, for the discussions we have had, in view of his enormously valuable experience in this area. He says that Sir David Henshaw’s first report is short of detail. We are damned if we do and we are damned if we don’t. We deliberately chose, first, to ask Sir David to produce his redesign very quickly; and, secondly, to bring it to Parliament to allow for a short but, I hope, helpful debate on the general principles leading to a comprehensive White Paper later in the year. We could of course have not published his report and done all the work internally and then produced a comprehensive White Paper. I think ours was a better approach.
As the noble Lord says, there have been many attempts to improve the CSA. All have run against enormous challenges. The more of a consensus we can get on the way forward the better, and we think that this approach is the best way for that.
On contractualisation, certainly Sir David Henshaw suggests that he would commend the development of a new organisation as more of a commissioning body. We will certainly look at that. The noble Lord will know that the agency already contracts out elements of its work. I have mentioned two. I believe that that is perfectly proper and that we should encourage it in the future. There has been a reassignment of the contract with EDS leading to a reduction of £65 million in the amount paid to it by the department.
My Lords, I hope I am not alone in my concern about the point on disregard. How can it be right that a father who stays and supports his family will pay a higher effective marginal rate of tax than one who does not? That cannot be right and that cannot encourage families to stick together.
My Lords, neither was it right to insist that parents on benefit go down the route of the CSA. That simply stopped parents from acting alongside the issue of, first, no disregard, and then the £10 disregard. It removed the incentives for compliance and for parents trying to resolve these issues together. Surely, it is right to start at first base and to ask: what can we do to encourage parents to try and resolve child support issues? Removing the compulsion from parents with care on benefits and ensuring that they keep more of the money paid by the non-resident parent are the incentives required to make that happen. Over 13 years we have seen the problems of trying to operate the system according to the principles enunciated by the noble Lord. Most of us have reached the conclusion that it simply is not working
My Lords, perhaps I may remind the noble Lord, who was not around at the time, that when this system was first mooted in, I think, 1989, there was great publicity, and the electorate and mothers were promised that it would be very much better than the system that applied at that time, and that the Treasury would save £400 million a year. Now we find that, instead of the Treasury saving £400 million a year, it has cost the Treasury—that is the taxpayers—£200 million a year. So we are £600 million worse off every year so far as I can see. That has been an absolute disaster.
I am concerned about what assurances can be given, especially bearing in mind that there will be a larger disregard, that the costs will not go up further than £200 million per year. What about the penalties which non-absent parents will apparently receive, for example, curfews, tagging and loss of passports? Those penalties seem worse than those that muggers and old-people bashers often get from our courts. I hope that has been considered.
My final question is on the compulsory registration of fathers. That will be extremely difficult, particularly in the case of unmarried single young mothers who perhaps have several relationships, who may not know who the father is, and who will not disclose the names of all the possible fathers. I hope that the Minister will think about that before he puts this into operation.
My Lords, the words on compulsory registration of fathers have been chosen very carefully. We will seek views on this matter. I understand the points the noble Lord raised. Going back to the original point of the noble Baroness, Lady Morris, anything we can do to get more information in tracing non-resident parents is to be desired in getting a more effective system. We must balance out those two considerations.
I was not here during the debate referred to, but I have read with great interest the Second Reading debate in your Lordships’ House led by the noble and learned Lord, Lord Mackay of Clashfern, when the then Government's proposals were put forward and the amount of resource they thought would be gained by the taxpayer. Alas, it has not turned out to be so. The £200 million savings are initial estimates made by Sir David Henshaw, based on the assumption that, with the removal of compulsion, the caseload of the new organisation will be considerably less than the existing caseloads, and there will be a much more efficient administration system.
On enforcement measures, it is already possible for driving disqualifications to take place and for custodial sentences to be given. We are looking at extending that to passport withdrawal, tagging and the publication of successful prosecutions. I would say to the noble Lord that failing to provide financial support for your children is a very serious matter. We know that the effect on the life outcomes of those children in poverty can be considerable and devastating. It is very important that the message goes out that we are getting serious about the matter. For too long the CSA has been seen as a soft-touch agency that you can run rings around. We have to move away from that. The answer to those who evade and seek to evade responsibility for their children must be that there will be consequences if they do not support their children.
Armed Forces Bill
My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved accordingly, and, on Question, Motion agreed to.
House in Committee accordingly.
[The LORD SPEAKER in the Chair.]
Clause 1 [Assisting an enemy]:
Page 1, line 7, after “law” insert “or a civilian subject to service discipline”
The noble Lord said: I shall speak also to Amendments Nos. 33A, 34A and 34B.
The purpose of Amendments Nos. 1 and 33A is to extend the reference of offences to include civilians who are subject to service discipline. Increasingly, we find that civilians are routinely employed in operations around the world. The Bill must take that into account. The amendments would place all private sector staff, not only sponsor reserves, under military discipline on such matters as the obstruction of operations. In another place, my honourable friend the member for Aldershot pushed the Government on that issue and the amendment is intended to establish whether the Government will consider that further. My honourable friend was promised a letter from the Minister, but no such letter was ever received. Either the Government do not take those matters seriously or they have forgotten. I hope that it is the latter.
Amendments Nos. 34A and 34B are intended to seek clarity of the definition of what we mean by the enemy. Today, the threat to the country comes not necessarily from organised nation states but from ad hoc groups of terrorists. There would be merit in changing the clause to reflect the needs of our time and to ensure that the courts are in no doubt of Parliament's intention that the disclosure of information useful to an enemy extends to those who seek to harm us, but who may not have been classified as an enemy in the past.
It is clearly not the Government's intention that a service man or woman who provides information to terrorists should not be subject to prosecution under Clause 17. I entirely accept that. The amendment would cover the disclosure of unauthorised information to foreign powers or journalists and I hope that it would be easier to prosecute under the amended clause than under the Official Secrets Act 1989. The information in question would not need to be government information. It would cover, for example, an employee of one of our defence companies leaking information about our equipment programme, the passing of which might be prejudicial to the security and defence of the United Kingdom.
The drafting of the amendment accommodates the Government's concerns, ensuring that the offence is not too narrow, retaining the words, “would be, or might be”. I beg to move.
Before speaking to the amendments, I remind the Committee that I have an interest as a serving officer in the TA and I am subject to service law as we speak.
I confess to having tabled numerous, detailed amendments, but the good news is that I do not intend to take very long speaking to them and I hope that the Minister can give a succinct response. Amendments Nos. 2, 7, 8, 13 and 34 cover the use of the terms “lawful excuse” and “reasonable excuse”. Offences in the first few clauses are very serious. Why do some clauses provide for “without lawful excuse”, while others contain the provision “without reasonable excuse”? What is the legal difference? Have I wrecked the Bill by swapping them around, or does that not make much difference? If it makes no real difference, why should we have the two terms?
Amendments Nos. 3 and 32 build on the amendments to which I have just spoken, but also provide an opportunity to consider the term “officer”. Most Members of the Committee will have received a very helpful letter from the Minister that explains the use of the term “officer”, but I still think it is a bit peculiar that “officer” means commissioned officer and midshipman, but “superior officer” includes a non-commissioned officer. Superior officer should be self explanatory; you would not bother looking it up, but it includes a non-commissioned officer.
The Bill should be a working document. No doubt it will be included in the manual of service law, when it is published. It would be better if the Bill was clearer about whether we are talking about commissioned or non-commissioned officers.
Turning to Amendments Nos. 4 and 5, Clause 1 creates wide and very serious offences. For instance, subsection (1)(c) makes it an offence not to pass on any information received from the enemy. If a serviceman captures an enemy soldier who makes it clear that he is very hungry, a clever serviceman may know—I repeat, know—that that is significant because it indicates that the enemy's logistic system may be breaking down. On the other hand, it could be insignificant, because all soldiers complain that they are hungry.
Amendment No. 6 is very similar. The Bill makes it an offence to give supplies to the enemy. How far does that go? For instance, what about medical supplies? Is it illegal to give medical supplies to the enemy if that will not compromise your tactical position?
Finally, the Committee will agree that desertion is a very serious offence. There are, rightly, severe penalties for desertion in connection with operations, but rather light penalties otherwise. The Bill seems to have maximum prison sentences of either two or 10 years. There is no provision in the Bill for, say, five years. Although I am content with the concept of “relevant operations” attracting heavier penalties, it may not always be possible to make that charge stick. If the charge is for only ordinary desertion, as it were, the maximum penalty is only two years. My amendment suggests 10 years, but I have gone to 10 years only to be consistent with the rest of the Bill’s drafting.
The Liberal Democrats have no amendments in this group, but I am sympathetic to the first eight amendments, which seem to provide some sensible clarification. On Amendment No. 34, I am less certain about the concept of what would become in the Bill “reasonable authority”. I wait to hear what the Minister has to say on that.
I am slightly worried about the new amendments, Amendments Nos. 34A and 34B, which replace the previous Amendment No. 35 tabled by the noble Lord, Lord Astor of Hever. They seem to me to miss out groups of possible enemies. For example, there is the requirement to provide security and defence for dependent territories, which does not seem to be encapsulated in the new amendments. I wonder whether “enemy” is a well enough understood term to leave it as the Bill suggests.
On Amendment No. 36, tabled by the noble Earl, Lord Attlee, which would increase the punishment from two years to 10 years, as the Committee will discover when we consider how the Bill as a whole is drafted, I am more concerned to try to bring it into the modern age and move away from the draconian punishments of the past. I would not support such an extension.
I support my noble friend Lord Astor. He made a very competent and clear point on persons who should be tied in to, have a good understanding of and be subject to service discipline. Much of that was covered earlier in consideration of the Bill, so I apologise to the Committee that, for very good reasons, I was not available to give my opinion on Second Reading. Indeed, if I may say so, I am immensely grateful to the Minister and other noble Lords who have kept me up to date with the proceedings, arguments and much of the correspondence on the Bill. I hope that, in his usual sympathetic vein, and in that of the kindness that he has shown to me, the Minister will spread a little of that towards the amendments proposed by my noble friend Lord Astor, with the support of the noble Lord, Lord Garden.
Perhaps I may take a second of the Committee’s time to say what a pleasure it is for all of us to see my noble friend Lord Lyell back in his place. I support each of the amendments moved so succinctly by my noble friend Lord Attlee. In particular, I await with great interest the explanation for the distinction made in one instance for “lawful excuse” and in several others for “reasonable excuse”. Since part of the object of this largely admirable Bill is to provide clarity for service people, it would be easier to understand that they will have protection if there is a “reasonable excuse” than if they are told that there is a “lawful excuse”, which would draw them into matters of law which may leave them feeling less than certain. These amendments are of particular importance and I look forward to hearing the noble Lord’s explanation.
I, too, am pleased to see the noble Lord, Lord Lyell, in his place. I am sure that the whole House will join me in wishing him a continued speedy recovery. The noble Lord, Lord Astor, asked a specific point on a letter. I will look carefully at what the noble Lord has said. It is my understanding that the point has been covered in a letter to the spokesman in another place or in a supplementary memorandum, which were both published in a Select Committee report in another place. I will check that point and get back to the noble Lord as soon as I can.
Amendment No. 1 seeks to broaden the offence of assisting the enemy to include civilians subject to service discipline. Civilians subject to service discipline are subject to a specified range of offences; that is, those of criminal conduct and some disciplinary offences—for example, looting and contravention of Standing Orders. A decision was taken not to apply all the service disciplinary offences to civilians as we do not think that it is appropriate to create or expect the same disciplinary relationship between the services and the civilians who support them. Some cases of assisting an enemy will amount to a criminal offence. In such cases, the service courts will have jurisdiction. But in lower level cases involving a lack of discipline rather than criminality, other mechanisms such as removal from theatre and seeking action under the contract of employment will be sufficient. I hope that the noble Lord feels able to withdraw his amendment.
I will now speak to the remaining amendments tabled to this clause and also deal with similar Amendments Nos. 2, 8, 13, 34 and 36 on the burden of “lawful” and “reasonable”. Existing Clause 1 gives a defence of “lawful excuse”, which would allow a defence that an accused had express or implied authority or whose action is justified by law. “Reasonable excuse” gives a wider defence, which would allow a court martial to look at all the circumstances and decide whether the conduct of the accused was reasonable. It is appropriate that the narrower defence should apply to an offence of intentionally assisting an enemy. Conversely, in Clause 2, for the offence of misconduct on operations it is felt that the wider defence of “reasonable” is more appropriate, as is also the case in Clause 17 where a similar point has been made. It is the same for Amendment No. 13 where again a similar point has been made.
With regard to Amendments Nos. 4 and 5, which are proposed to Clause 1, we believe that “significant” is already implicit in the clause. “Knowingly” is already covered in the clause by the word “intentionally”. On Amendment No. 6, the noble Lord proposes that the giving of medical supplies to an enemy is excepted from the offence. Where it is proper to give an enemy medical treatment, that is already covered by “lawful excuse”, but there should not be a general permission to give the enemy medical supplies.
Amendment No. 8, tabled by the noble Earl, Lord Attlee, would add an additional defence of acting on the authority of a superior officer. The amendment is unnecessary because the defence of “lawful excuse” would include acting under the orders or authority of a superior officer. Amendment No. 32 is unnecessary because the definition of “superior officer” in Clause 367 already includes warrant officers and non-commissioned officers. Amendment No. 33A to Clause 17 seeks to broaden the offence of disclosing information useful to an enemy to include civilians subject to service discipline. For the same reasons as I described when dealing with Clause 1, we do not think that it is appropriate to extend this offence to civilians. With regard to Amendments Nos. 34A and 34B, Clause 17 uses the wording,
“would or might be useful to the enemy”,
to which the amendments propose to add the words,
“or prejudicial to the security or defence of the United Kingdom or Her Majesty’s forces and their allies”.
I suspect that the intention behind the amendments is to widen the offence. In doing so, it goes into an area which is already covered by the Official Secrets Acts. The offence of disclosing information useful to an enemy is needed to deal precisely with information which is useful in any way to an enemy. While these amendments would broaden the existing offence, there is other legislation which deals with threats to national and military security.
Amendment No. 36 would raise the maximum term of imprisonment for the offence from two years to 10 years. Similar offences are contained in the service discipline Acts and carry a sentence of a maximum of two years. We see no need to change that. The proposed maximum is too high, given that more serious offences, such as assisting the enemy, can, if appropriate, be charged, which carry a greater potential punishment.
I am very grateful to the noble Lord for dealing with the points which I raised about the words “lawful” and “reasonable”, but will he look at that again before Report? “Lawful” is not defined in the sense that he described. Without a specific definition, in a very narrow sense, of “lawful excuse” along the lines that the Minister has outlined, many people would suppose that if there were a “reasonable excuse”, it would also be a “lawful excuse”.
For my part, I hope that any court martial dealing with any charge under Clause 1 would always feel it necessary to look at all the circumstances and that that would be so whether the charge was “reasonable excuse” or merely “lawful excuse”. I hope that this might be looked at again because it is a little more difficult than it seems.
I support the Minister in his argument about not extending the offences in Clauses 1 and 2 to,
“civilian subject to service discipline”.
Such persons are defined in Schedule 15 to the Bill, which covers a very wide number of people. In particular, it covers persons residing or,
“staying with a person subject to service law in a designated area”,
which includes families of servicemen who are posted abroad, and so on. I declare an interest as having represented Mr Martin, a 17 year-old, in the proceedings that were brought against him for murder by way of court martial. It is inappropriate, and I shall move amendments in respect of civilians being dealt with by way of a court martial. Certainly, when we are dealing with offences that are specific to those who are members of the Armed Forces, it is inappropriate that civilians should be caught by those offences. It may be that they may commit other offences in different ways and be subject to the jurisdiction of the civilian court or whatever, but they should not be brought before a court martial for disciplinary and service offences.
I am grateful to all those who have spoken to this group of amendments. I, too, should like to say how delighted I am to see my noble friend Lord Lyell back in his place. I thank the noble Lord, Lord Garden, for his sympathy for Amendment No. 1, and I take his point about leaving out groups of enemies. We will look at that closely. I was delighted that my noble friend Lord Attlee said that his speeches would be short and I can reassure him that I was busy with the delete button on my computer all afternoon.
I thank the Minister for looking into the matter of the letter that was promised to my honourable friend in the other place; I look forward to hearing about that. I also thank him for his explanation in response to Amendments Nos. 34A and 34B. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 2 to 7 not moved.]
Clause 1 agreed to.
Clause 2 [Misconduct on operations]:
[Amendment No. 8 not moved.]
Page 2, line 15, leave out “use his utmost exertions to”
The noble Lord said: In moving Amendment No. 9, I shall speak also to Amendment No. 10. I note that Amendment No. 14 has been included in this group. I have been away and have therefore had no opportunity to consider the groupings. I propose to move Amendment No. 14 and at that point to speak to Amendment No. 25 in similar terms; I hope that the Committee will grant me that indulgence.
On Amendment No. 9, the Joint Committee on Human Rights today published its 22nd report of legislative scrutiny specifically relating to this Bill. In paragraph 1.34, it states:
“Part 1 of the Bill sets out a series of offences which are the subject of military law. Article 7 of the European Convention on Human Rights requires that a law imposing a criminal offence must be sufficiently clearly drafted or defined that a person is able to reasonably foresee that his actions may amount to an offence”.
The committee criticises in particular the wording that we seek to exclude by this amendment—that of using “utmost exertions”. Clause 2(3) states:
“A person to whom this subsection applies commits an offence if he fails to use his utmost exertions to carry out the lawful commands of his superior officers”.
What are his “utmost exertions”? That is a question that the Bill would require a court martial to determine. Surely it would be much simpler if that subsection as, “A person to whom this subsection applies commits an offence if he fails to carry out the lawful commands of his superior officers”. What is added by the phrase, “use his utmost exertions”? The Minister will know that the Joint Committee has written to him asking what it means.
A similar argument arises with Amendment No. 10, which refers to subsection (5):
“A person to whom this subsection applies commits an offence if, without reasonable excuse, he intentionally communicates with a person who is—
(a) a member of any of Her Majesty’s forces or of any force co-operating with them, or
(b) a relevant civilian,
and the communication is likely to cause that person to become despondent or alarmed”.
That is not the easiest thing for a tribunal of fact to determine. Is something said by a certain person likely to cause another person to become despondent or alarmed? Tightening up the wording so that the subsection reads, “likely to cause that person to commit an offence under subsections (1) to (4)”, would give direct guidance and clarity to the tribunal on what it would have to determine. I do not doubt that the words “despondent or alarmed” have appeared in previous legislation and I do not suppose that the phrase has been newly thought of for the purposes of this Bill, but our purpose in trying to improve the wording is to introduce clarity and certainty, and to put before a tribunal that has to decide these things clear guidance on what it has to decide. I beg to move.
My Amendments Nos. 11 and 12 are in this group. The Bill quite properly provides for an offence of obstructing operations, but why should that provision apply only to persons subject to service law? What other criminal sanctions are available if UK civilians obstruct UK military operations by, say, blockading Marchwood military port during a transition to war? The Minister said in response to the previous group of amendments that in his judgment we should not subject civilians to service discipline, and I think that the noble Lord, Lord Thomas of Gresford, would agree with him. But I am sure that the Committee would be interested to hear at some stage the Minister’s reasoning for making that judgment.
I have much sympathy with Amendment No. 10. It seems to make a lot of sense.
Perhaps I may feed into this brief discussion in the context of Amendment No. 9 by saying that justice really does require that there should be a subjective element in the conduct complained of. A typical lawful command given by a superior officer might be, “Go and take that hill”. Surely it is a good deal more just if the soldier who has failed to take the hill is able to say, “I used my utmost exertions”, which means only that he left no effort unexerted, than he should be told, “You have failed to take that hill; it was a lawful command and you are guilty”. I hope that that might be considered in the Minister’s reply. Finally, the phrase “despondent or alarmed” has a long and well documented history and I should have thought that there would not be much difficulty in understanding what those words mean.
Often, on operations, an individual will be given an order to accomplish a mission that is phrased in absolute terms. Sometimes that mission will be close to impossible to achieve. But the order is given in the expectation that the soldier will do everything that he can to accomplish it.
If Amendment No. 9 were to be accepted, a soldier would face prosecution every time he failed to accomplish a particular mission. That cannot be right; and I am sure that it is not what the noble Lord, Lord Thomas, seeks to achieve. For the reasons that I have given, we are therefore not able to support the amendment, although I look forward to hearing from the Minister an explanation of what the phrase “use his utmost exertions” means in practice.
Amendment No. 10, by removing the words “despondent or alarmed”, would confine the offence of misconduct on operations, under this subsection, to communicating with people to commit an offence under subsections (1) to (4). This would narrow the offence considerably. It is currently worded to catch people who are damaging morale. While the language seems archaic, there needs to be something in the Bill to catch individuals who are damaging morale. The maintenance of morale is one of the key principles of operational effectiveness and it needs to be protected under service law.
Amendments Nos. 11 and 12 extend the offence of obstructing operations to anyone, not only to those subject to service law. I agree with the sentiments expressed by my noble friend Lord Attlee. I will be interested to hear from the Minister what safeguards there are in ordinary civilian law to protect military operations from being jeopardised by civilians, and whether he believes those existing safeguards are sufficient.
I have the greatest difficulty with Amendment No. 14.
I beg your pardon. Have I been premature in speaking now?
I will reserve my remarks about Amendment No. 14 until it has been spoken to.
I support my noble friend in Amendment No. 10 and the question of “despondent or alarmed”, which really is a phrase from yesteryear. I tabled the amendment before I received the report from the Joint Committee on Human Rights, which speaks strongly about this issue and the perhaps unintended consequences of what it might sweep in in the future. I agree with the noble Lord, Lord Kingsland, that one needs to have some way of catching those who intend to lower morale. On the other hand, we do not want to end up prohibiting discussion about anything. I look to the Minister, either in his remarks now or when we come back on Report, to capture the intention more precisely in language that is more 21st century.
Perhaps I may now say something about Amendment No. 14.
I have not as yet made the case for Amendment No. 14, with the greatest respect. Perhaps I should indicate that I was away on Thursday and Friday when the groupings were compiled and I have had no opportunity of formally degrouping the amendment. I therefore intend to speak to Amendment No. 14 when it is called in its place.
I now understand the source of my confusion. From the fixture list, if I can refer to it as that, Amendment No. 14 appears to be in this group. I therefore rushed on to my next fence not knowing that the noble Lord, Lord Thomas of Gresford, was riding in a different race. In those circumstances, I shall canter home and start again when the noble Lord has moved his amendment.
I support the noble Lord, Lord Thomas of Gresford, in his Amendment No. 10. The wording “despondent or alarmed” does not run very well in a statute. I shall be moving amendments later to try to clarify wording in the Bill. On those grounds, I am pleased to support the amendment.
The noble Lord, Lord Thomas of Gresford, and a number other noble Lords have referred to the report on the Armed Forces Bill by the Joint Committee on Human Rights. I am aware of that report and I shall consider it carefully. I will touch on some of its recommendations in speaking to a number of the amendments today. The Government will, of course, respond in the normal way in due course.
In broad terms, subsections (1) to (4) of Clause 2 create offences relating to misconduct on combat operations such as abandoning or surrendering any place or not using utmost efforts to carry out orders. Subsection (5) creates an offence of unreasonably making statements while on combat operations that are likely to cause alarm or despondency among other service personnel or accompanying civilians subject to service discipline. This is based on an offence under the existing service discipline Acts and reflects the importance on combat operations of preventing alarm and despondency, whether among troops or accompanying contractors, from being created unreasonably, for example, by spreading rumours. Irresponsible rumours can have a devastating effect on morale.
Amendment No. 9 would remove the requirement to use utmost exertions to carry out lawful commands when on combat operations. I recognise that the intention behind the amendment may be to make the offence less onerous, but its effect would be to make the offence stricter; it would mean that even if a serviceman did his utmost to carry out his orders but was prevented by the enemy, he would be guilty of an offence under this clause. The burden of proof for the offence is not so much that the person failed to comply but whether he tried his best to carry out the orders. If he simply failed to comply, the offence of disobedience to orders would be more appropriately used.
Amendment No. 10 would remove the protection that this clause provides on combat operations against irresponsible statements likely to cause unnecessary alarm among service personnel and accompanying civilians subject to service discipline. It would replace it with an offence preventing statements likely to cause specific conduct by service personnel such as abandoning a post. This is, in our view, insufficient protection against such irresponsible statements, which can undermine the morale of service personnel. Given the importance of this point, I hope that this explanation is sufficient for the noble Lord and that he will withdraw his amendment.
Under Clause 3, it is an offence if a serviceman intentionally or recklessly puts an operation at risk or delays or discourages an operation. Such behaviour not only puts in jeopardy the success of the operation but can of course put lives at risk. The most serious examples of the offence will be those related to operations against an enemy. In such cases, the maximum sentence is life imprisonment; in other cases, it is 10 years’ imprisonment.
Amendments Nos. 11 and 12 would make the service offence of obstructing operations applicable to any civilian, even those who are not subject to service discipline. It is not clear whether the intention is to give the court martial jurisdiction over these civilians or whether it is intended that civilian courts in the UK could deal with them. We do not believe that it would be appropriate to extend this offence to civilians, even those subject to service discipline. It is an offence appropriate to service personnel involved in operations.
In some cases, attempts to put at risk an operation could involve criminal action. In such cases, civilians subject to service discipline can be dealt with for those offences. But where criminal conduct is not involved, such civilians will best be dealt with administratively or under their contracts of employment. No doubt they would be prevented from continuing to accompany the Armed Forces.
I am grateful to all noble Lords who have taken part in the debate. I am persuaded that a very full answer has been given, not least by the noble and learned Lord, Lord Mayhew, and the noble Lord, Lord Kingsland, as well as by the Minister, on the use of the expression “use his utmost exertions”. I now understand that the purpose of that phrase is to be a defence for a person ordered to carry out a perhaps impossible task; that seems to me to be a very fair and reasonable way of putting it. If that is the view behind the Government’s inclusion of the phrase in the Bill, I am happy with it.
So far as becoming despondent or alarmed—that rather ancient language—is concerned, I am grateful for the support of the noble and gallant Lord, Lord Craig, as well as that of my noble friend. Subsection (7) of the clause states:
“A person guilty of an offence under this section is liable to any punishment mentioned in the Table in section 163, and any sentence of imprisonment imposed in respect of the offence may be for life”.
So life imprisonment can be imposed for an offence described by the vaguest wording—“despondent or alarmed”—and is imposed by a tribunal that has to find not necessarily that despondency and alarm have been caused but merely that “the communication” made by the defendant “is likely to cause” alarm and despondency. That is a value judgment if ever there was one and it is placed in the hands of the tribunal. Although I am grateful to the Minister for his response on this matter, which I shall read with considerable care, it is a phrase that I shall return to on Report. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 10 not moved.]
Clause 2 agreed to.
Clause 3 [Obstructing operations]:
[Amendments Nos. 11, 12 and 13 not moved.]
Page 3, line 5, at end insert-
“( ) It shall be a defence for a person charged with an offence under this section to prove that the action or operation referred to in subsections (1) and (2) requires the commission by him of unlawful acts or is illegal under international law.”
The noble Lord said: I will also speak to Amendment No. 25, notwithstanding that it is grouped with other later amendments, because it raises the same point.
The point arose specifically in the case of Mr Kendall-Smith, a flight lieutenant in the RAF who refused to go to Iraq because of his belief that the invasion and subsequent activity in Iraq were illegal. I am not suggesting in these amendments that it is a defence for a person to prove that he believed that the,
“action or operation referred to in subsections (1) and (2) requires the commission by him of unlawful acts or is illegal under international law”,
nor when we come to Clause 8 am I suggesting that belief is a sufficient defence. But it should be open to a defendant to argue, as Flight Lieutenant Kendall-Smith did, that he was being asked to make himself a party to the illegal act, as he saw it, of the invasion of Iraq. He may or may not be able to persuade the tribunal that his view is correct, but it should be open to a serviceman to make that argument as a matter of law.
In the court martial proceedings against him, at a preliminary hearing, he was told that his belief that it was an illegal act was no defence. Subsequently, by the trial date in April this year, the Judge Advocate General said that it was not an admissible defence at all: he could not argue it. If a soldier is charged with disobeying a lawful order, he ought to be able to argue in some wider context that the whole operation he was being asked to take part in was illegal.
This is a probing amendment because I am interested in the Government’s response to the argument that I have put forward. I beg to move.
I oppose this amendment. It is not the duty of junior officers to determine the legality or even the necessity of any operation. After all, even the noble and learned Lord the Attorney-General found it difficult. It is a role for Ministers and Parliament.
I support the noble Lord, Lord Thomas of Gresford, and hope that the Minister will give very serious attention to his amendment. I, too, will be interested to hear his reply. We will come to relevant matters in the grouping that includes my own Amendment No. 24. However, I am sure that every Member of this House would agree that a serviceman has a duty to refuse to carry out an order that he or she believes to be unlawful. If that responsibility lies with the service man or woman, I do not understand why they should then be denied the opportunity at a subsequent legal occasion to explain the reasons for their conviction that the particular order that they were asked to obey had no legal basis. I hope that the Minister will look at this anomaly and see how it can be made more consistent.
Two different situations are being described here which we must try to distinguish. The first is where, in operations, a soldier or other service man is asked to do something which is unlawful in our criminal law, such as pull the trigger too soon. In those circumstances, he is perfectly entitled in any court, whether civilian or a court martial, to raise the defence of an unlawful order. He cannot be required to commit murder. To that extent, I go along with the noble Lord, Lord Thomas of Gresford.
Moreover, so far as committing murder in those circumstances is an offence in international criminal law, the international convention on torture, for example, should also be available as a defence in a court martial.
However, there is another sense in which we can understand the amendment moved by the noble Lord, Lord Thomas of Gresford—the legality of the war itself. Is the war being legally pursued by the Government?
That has become an extraordinarily important question since the International Criminal Court has been established. If the war a country is waging is indeed illegal, any soldier apprehended by a foreign country against which that war is being waged is himself subject to international criminal law. That has serious consequences for the soldier.
However, we are in great difficulties if, as one of a number of defences a soldier can raise against an order being issued to him or in the context of obstruction, we provide that soldier with a straightforward defence of, “My country is pursuing an illegal war”. Quite apart from the implications for military discipline, I do not believe that either an English civil court or a court martial has the jurisdiction to decide such a question of public international law. It is a matter on which, among other things, the Attorney-General has to pronounce. Once he has pronounced, to have any kind of effective fighting force, everyone involved in the battle has to accept the Attorney-General's judgment, whatever their private views about it.
Although I entirely understand where the noble Lord, Lord Thomas of Gresford, is coming from, and I greatly sympathise with the sentiment and emotion behind the amendment, in so far as we are dealing with public international law and the question of the legality of the war itself, it is not right to incorporate a defence based on that in the military tribunal system.
I agree very much with the noble Lord, Lord Kingsland, on this. This amendment is what the military would call “volunteering for the guardroom”. It seems to put an unnecessary complication in the way. The thing about bringing in international law is that, on occasions, it is extremely obscure what international law is. It is open to different interpretation and produces deep issues that the ordinary soldier of fairly low rank would not be in a position to judge. It is a matter for the Attorney-General and Parliament. I should have thought that it was quite sufficient to say that a soldier must not commit an unlawful act.
This goes back a very long way; it goes back to the Nuremberg trials, when a lot of the people whom we were fighting in those days said, “Well, I was all right because I was told to do it”. Of course, it then became very clear that, even if you were told to do something, if that act was unlawful, it did not necessarily mean that you were free from blame. That is how this came about. But if it is made clear that you must not commit an unlawful act, there is no need to bring in the complication of international law, which obscures the issue.
Perhaps I might clarify my position, as we are in Committee. I remind the Committee that Flight-Lieutenant Kendall-Smith was a medical person and there was no question of his being sent to Iraq to aim a gun at anybody. If he was performing his functions in Iraq, it would have been in tending the sick or wounded. So no question of his committing an unlawful act in itself could arise. His objection was that the whole enterprise was illegal. I very much accept the analysis of the noble Lord, Lord Kingsland, on this—that he was making himself party to something that could turn him, in an international criminal court, into a criminal.
These amendments seek to leave it open to the defendant to argue not that he believed that a war was illegal but that it was, in fact, illegal. I do not accept that that is not judiciable in the courts of this country, as it is perfectly open to our courts to decide whether a war is or is not legal, and I do not think that the Attorney-General or Parliament can oust the courts from taking decisions of that nature. All that I suggest in these amendments is, not that a person’s belief is a defence in Clause 8, for example, for his desertion or refusal to serve, but that he should be able to argue in court in an appropriate case that the whole enterprise was illegal.
I have no doubt that many of the defendants at Nuremberg had never pulled a trigger in an unlawful way or committed a murder directly, but some of them were there because they were engaged as members of the German high command in ordering troop dispositions and movements and so on. That is not necessarily illegal in itself but they were party to an illegal enterprise. That is the whole point. We should leave it open to a serviceman to raise that argument if he is so advised when charged, for example, with an offence under Clause 3 of failing in his duty or, under Clause 8, of desertion or refusal to serve.
This amendment simply makes it a defence to prove that something is an unlawful enterprise. In some ways, it is quite an attractive amendment and, viewed academically, one can see how the already eloquent argument of the noble Lord could be expanded. However, I suggest that it must fail on practical grounds, for the reason given by my noble friend Lord Kingsland. Under our constitutional arrangements, for better or for worse—and I cannot think of one that would be better practically—the Government’s legal adviser is the Attorney-General. Somebody has to hold that position and, for there to be an end to a dispute, there has to be a rule that, when the Attorney-General has given his opinion on the legality or otherwise of something, the Government must accept it. If they have to accept it, I do not see how, practically, it can be sustained that those whom they order to give effect to their policy should be able to challenge that which the Government themselves cannot challenge. In those circumstances, as a matter of practicality, I suggest that this amendment must fail.
I do not think that this is to oust the jurisdiction of the courts on the question whether something is lawful. We are simply considering whether there should be a defence. I do not believe that you can prevent somebody raising it as a matter of consideration for the court. That jurisdiction is not being ousted; we are simply preventing it becoming a defence, for the practical reasons that I and other noble Lords have suggested.
The word that I stumbled over when I read this amendment was “prove”. The amendment says that the defendant has to prove that whatever he was doing was “illegal under international law”. That really seems an impossible operation for a defendant. I am not sure what the international law would be that he was trying to prove was involved. So I am afraid that I cannot support the amendment.
I come to some nuts and bolts with regard to the remarks of the noble Lord, Lord Thomas of Gresford. None of us would want our medical officers to think that they were going into battle to kill or wound people or to fight, but with the sort of enemies that we fight these days—and in the past—if the medical officer is not armed, surely he has a duty to defend his patients if his surgical station is overrun. He has a duty to defend himself, too, because we want him to go on being a jolly good medical officer.
I would have to be very careful in agreeing with the noble Lord, especially with regard to the case that he mentioned, on which I have only the newspapers to go by. I can see this being used as an excuse in an operation area, when somebody is given an order to go on patrol, or whatever, and that person says, “No, I don’t agree with the war; I’m not going”. When we come down to nuts and bolts, we have to be very careful of that.
Amendments Nos. 14 and 25 would make it a defence to any charge of obstructing operations or desertion to show that the operation in question required someone to commit,
“unlawful acts or is illegal under international law”.
The words quoted seem to be intended to cover both criminal acts and service which the United Kingdom was carrying out contrary to its international law obligations, as the noble Lord, Lord Kingsland, has said. I emphasise that if a member of the Armed Forces is ever given an order to commit a crime, he should disobey it. That is the right response if he is given such an order. Therefore, the amendment is unnecessary to deal with crimes.
The amendment would also allow a defence that service being undertaken was illegal under international law. That is simply a wider variation of the first amendment, which allows a defence if one type of service—military occupation—is unlawful under international law. This allows the service man or woman to argue that service against an enemy or for the protection of life or property is not being undertaken in accordance with international law.
International law, however, looks at Governments and states in relation to the legality of operations. It does not expect the ordinary service man or woman to assess whether an operation is sanctioned by international law. It would totally undermine the cohesion of the Armed Forces to provide that, in respect of certain types of operation abroad, a member of the Armed Forces could simply go absent without permission because he or she thought the operation was contrary to international law. Under the amendment, he would not even have to show that he had gone absent for this reason, only that the operation did not meet international law requirements.
Your Lordships will no doubt be aware that the report of the Joint Committee on Human Rights published last Friday asked why Clause 3 does not allow the legality of the deployment of British forces to Iraq to be argued in relation to an offence under Clause 3. I will write to the committee to provide a detailed answer to its questions, but I hope my reply to this amendment has outlined in the time available our reasons for deciding that such a defence should not be available.
I am grateful to the Minister for his reply, and to all noble Lords who have taken part in this very short debate on this matter of considerable principle. Should a person be allowed to argue, to take the question of the noble and gallant Lord, Lord Craig, that an invasion is a war of aggression? Such a war is obviously illegal in international law. Is he entitled to say, “I refuse to take part in a war of aggression?”. The proof required, since it is a defence that is being put forward, would be for the court to determine on the balance of probabilities—which does not seem a very good standard of proof for such an important issue—that the war is a war of aggression, or that, perhaps in a particular operation that he refuses to go on, he knows that the means to be employed in that operation would be a breach of the Geneva Convention. One can look at the question in a number of ways, taking the broad picture of the whole war, but one can also look at the specific operation he is being asked to undertake within that war. It may be that the war is not a war of aggression, but the orders he is given or the operation he is asked to participate in is in one way or another, although it may not involve him in murdering people, a breach of the Geneva Convention and therefore illegal.
We will consider this matter. I shall consider the Minister’s response tonight and in his promised letter to the Joint Committee to see whether we can take this debate any further. This is a probing amendment, and I hope it has at least raised an interesting issue for your Lordships. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 3 agreed to.
Clause 4 [Looting]:
Page 3, line 14, after “any” insert “personal”
The noble Earl said: I shall also speak to Amendments Nos. 16, 17 and 18. The Bill has sensible provisions about looting, but where does looting stop and using the enemy’s materiel of war against him start? Presumably it would be legal, though sometimes unwise, to take and use the enemy’s hand grenades, but taking his wristwatch would be illegal. However, what about food supplies? Where is the dividing line? And how does Clause 4 work?
Amendment No. 16 covers the law of armed conflict requirements not to take a prisoner of war’s NBC protective equipment, although my amendment is designed to go a bit wider and include such things as boots and foul-weather equipment. Amendment No. 18 builds on No. 15 and creates an offence of “failing to suppress looting”. If an offence to fail to suppress mutiny is in the Bill, why do we not have one for failing to suppress looting? Both are serious breakdowns in discipline. I beg to move.
While I am generally sympathetic to the noble Earl’s approach to this question and to having consistency of offences, we have to think about the onus his new clause, which would include the failure to suppress looting, would put on particular servicemen to identify that the process going on was covered by Clause 5—that people who were subject to service law were conducting the looting. As an example of the difficulty they might be placed in, I quote the comments of the former Defence Secretary, Mr Hoon:
“The hon. Gentleman referred to looting, and I know that right hon. and hon. Members will be concerned about that issue; indeed, I have sought to identify the extent of it—
he was talking about Iraq, during that operation—
“Fortunately, it appears so far to be confined to Iraqi citizens—shall I use the word—‘liberating’ those items that are in the charge of the regime by entering its former facilities and the secret organisations, and redistributing that wealth among the Iraqi people”—
this is Mr Hoon, the Defence Secretary, speaking—
“I regard such behaviour as good practice, perhaps, but that is not to say that we should not guard against more widespread civil disturbances”.—[Official Report, Commons, 7/4/03; col. 24.]
Your Lordships now know, with the benefit of hindsight, that that looting period in Iraq led to the chaos and anarchy that have developed since. It seems hard that we are putting the onus for making difficult decisions about looting on junior servicemen when our Defence Secretary seems unable to come to the right conclusion.
Amendments Nos. 15 and 16 limit the offence of looting from a person to personal property, including personal protection equipment. I believe the reason behind this is to make clear that in some cases military equipment may be taken. I believe, however, that it is already clear, as the offence is committed only if property is taken without lawful excuse.
Amendment No. 17 would add to subsection (4) that a lawful excuse includes taking property for the public service. This is already provided by subsection (3) in relation to military equipment. The amendment would apply the defence to taking even the personal property of the dead and wounded. In my view that would not be appropriate.
The wording of Amendment No. 18, which creates a new offence, suggests to me that the noble Earl has drawn his idea from the offence under the Bill of failing to prevent or suppress a mutiny. However, that offence is exceptional. There has long been an offence of failure to prevent or suppress mutiny because of the enormous potential effects that that might have and the need to ensure that the personnel of any rank, without specific orders, would do all they could reasonably do to prevent or suppress it. Such extra obligations are, however, not generally imposed. For offences apart from mutiny, we think the existing provisions are sufficient. Those include disciplinary offences, such as neglect of duty and conduct to the prejudice of good order and discipline, as well as criminal offences, such as aiding and abetting crimes. I hope the noble Earl accepts this view and feels able to withdraw his amendment.
I am grateful for the Minister’s response. My only difficulty, which I will have to think about carefully, is that Clause 4 says “without lawful excuse”, but surely, if you are using the equipment for your own purposes, that would just be a reasonable excuse. I will have to look carefully at his response to my amendment about “reasonable” and “lawful”. I beg leave to withdraw my amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 16 and 17 not moved.]
Clause 4 agreed to.
[Amendment No. 18 not moved.]
Clause 5 agreed to.
Terrorism Act 2000 (Proscribed Organisations) (Amendment) Order 2006
The Minister of State, Home Office (Baroness Scotland of Asthal) rose to move, That the draft order laid before the House on 17 July be approved [34th Report from the Joint Committee and 42nd Report from the Merits Committee].
The noble Baroness said: My Lords, Section 3 of the Terrorism Act 2000 provides a power for the Home Secretary to proscribe an organisation which he believes is concerned in terrorism. This is done by adding the organisation to Schedule 2 to the Terrorism Act 2000, which lists proscribed organisations. An organisation is concerned in terrorism if it commits or participates in acts of terrorism, prepares for terrorism, promotes or encourages terrorism or is otherwise concerned in terrorism.
This power was extended by Section 21 of the Terrorism Act 2006 to include those organisations which glorify the commission or preparation of acts of terrorism. Glorification includes any form of praise or celebration of acts of terrorism. We are therefore now able to take action against those who make statements which create a climate that supports and fuels terrorism.
The order we have before us today lists four organisations that we believe are concerned in terrorism. These are: Al-Ghurabaa; the Saved Sect; the Baluchistan Liberation Army, or BLA; and Teyrebaz Azadiye Kurdistan, or TAK. Two of these organisations, Al-Ghurabaa and the Saved Sect, are being proscribed under the new glorification provisions and this is the first time that they have been used. The other two organisations, the BLA and TAK, are directly involved in acts of terrorism.
When deciding on whether to make an order proscribing a group, a number of additional factors are taken into account and these were published in 2001. They are: the nature and scale of an organisation’s activities; the specific threat that it poses to the United Kingdom; the specific threat that it poses to British nationals overseas; the organisation’s presence in the United Kingdom and the need to support other members of the international community in their fight against terrorism.
Proscription of an organisation is a very serious matter. It means that the organisation is outlawed in the United Kingdom and it is illegal for it to operate here. The 2000 Act makes it a criminal offence to belong to or invite support for a proscribed organisation. It is also an offence to arrange a meeting which will support or further the activities of, or which will be addressed by, someone who belongs to such an organisation. Finally, a person commits an offence if they wear clothing or carry or display articles which provide a reasonable suspicion that they are a member or supporter of a proscribed organisation.
It is important to note here that any organisation that is proscribed, or anyone affected by a proscription, can appeal to the Home Secretary for the organisation to be deproscribed. If this is refused, the applicant can appeal to the Proscribed Organisations Appeal Commission (POAC). Given the wide-ranging impact of proscription, the decision to put forward a group for proscription is taken only after a thorough review of all the relevant information. This includes open source material as well as intelligence material and advice that reflect consultations across government and with the law enforcement agencies.
Proscribing the four groups in the order will send a clear message that the United Kingdom takes seriously its role in fighting terrorism. We all know that the nature of terrorism has changed, that the structures used are more fluid and international and that there are organisations that recruit and radicalise as well as those that actually commit terrible acts of violence against innocent civilians.
It is against this background that we must consider all the steps we can take to protect our citizens from terrorism. This involves difficult decisions and judgments but the overriding responsibility must be to protect the public. Part of that is about making it harder for those organisations that are involved in terrorism, both directly and indirectly, to operate. That is what proscription does.
I turn to the organisations in the order. Al-Ghurabaa and the Saved Sect use the internet as their main medium. The two organisations are closely connected and both are successor organisations to Al-Muhajiroun, which was run by Omar Bakri. They use the internet to attack the values of our society and to praise those who want to use violence for ideological aims. They spread a message that is aimed at the young and the vulnerable and which indirectly encourages them to emulate terrorist acts. For example, the Al-Ghurabaa group explicitly refused to condemn the July 7 bombings and a spokesperson has said:
“What I would say about those who do suicide operations or martyrdom operations is they’re completely praiseworthy”.
There is also material on the Al-Ghurabaa website that says:
“We do believe in Jihad, we do believe in violence, we do believe in terrorizing the enemy of Allah”.
They talk about Osama bin Laden being a lion and of his opponents,
“treading a downhill path of destruction and humiliation”,
and of the USA being
“forced to kneel down towards him”.
The Saved Sect churns out similar propaganda. It talks about the only solution being violent Jihad. This is not freedom of speech but an abuse of those freedoms, and it is an insidious attack on the values we hold dear in our culture.
The case with the BLA and TAK is different. These are organisations directly concerned with terrorism—organisations that have claimed responsibility for some dreadful atrocities. For example, the BLA has claimed responsibility for attacks going back to at least 2004, including the murder of Chinese engineers in February 2006 and nine bombings at railway stations during 2005. TAK has also claimed responsibility for attacks in Turkey since 2004, including a bomb attack on an internet café in Istanbul. Although these organisations are not based in the United Kingdom, they pose a threat to our citizens as the tragic death of British citizens in a bomb attack by TAK in the Turkish resort of Kusadasi in 2005 demonstrates.
Given the nature of the organisations listed in this order, we invite your Lordships to agree that it is quite right that we should proscribe them, and I commend the order to the House. I beg to move.
Moved, That the draft order laid before the House on 17 July be approved [34th Report from the Joint Committee and 42nd Report from the Merits Committee].—(Baroness Scotland of Asthal.)
My Lords, I thank the Minister for explaining the terms of the order.
My honourable friend Mr Patrick Mercer, the shadow Minister for Homeland Security, made it clear when this matter was debated in another place last Thursday that we strongly support the making of the order. The police and security services have an intensely difficult task to perform in protecting the public from the threats and activities of extremist groups. That task is made even more testing when such groups change, chameleon-like, either their name or their organisational links and methods.
The proscription of an organisation is indeed a serious matter; and it has serious consequences. The organisation is outlawed in the United Kingdom and it is therefore illegal for it to operate here. The Minister was right to remind us that the Terrorism Act makes it a criminal offence to belong to, or invite support for, a proscribed organisation. It is also illegal to arrange meetings for them or to wear items that indicate support for such an illegal organisation.
It is a serious step for Parliament to proscribe organisations, but it is important to take such measures where they are justified. We believe that these measures are justified and we support the proscription of the four organisations listed in the order.
As the report of the Merits of Statutory Instruments Committee points out, three of the groups are understood to be seeking support or funding in the UK. The fourth poses a threat to British tourists in Turkey. I note, of course, that the first two organisations listed, Al-Ghurabaa and the Saved Sect, also known as the Saviour Sect, are here as a consequence of the broadening of the Government’s powers under the 2006 Act. We do not object to that, just as we do not object to the principle of what the Government are trying to achieve today. There was a difference of view about drafting, but this is not the time to revisit old arguments. We support the Government’s measures today, which are justified under the terminology, either theirs or ours, that was used in discussions in this House. We fully agree that these two organisations should be proscribed along with the Baluchistan Liberation Army and TAK.
I have a couple of questions for the Minister which cover some of the matters highlighted by my honourable friend Mr Mercer. The first two organisations on the list are part, but only part, of the remnants of a much larger organisation that was established by Omar Bakri Mohammed. Will the Minister give assurances that systems are in place to review the position with regard specifically to the other remnants of Al-Muhajiroun? I realise, of course, that where it is clear that there has simply been a change of name to get round the proscription, the Government are able to bring forward an order subject only to negative resolution to proscribe the organisation under its new name. That is the procedure that the Government have rightly taken with regard to KADEK and Kongra Gele Kurdistan—I apologise if I pronounced the name incorrectly—the successor to the Kurdistan Workers’ Party. I note that the Proscribed Organisations (Name Changes) Order 2006 was tabled on the same day as this affirmative instrument, 17 July.
Can the Minister say something about the continuing review of the need for such orders, both negative and affirmative? Can she also tell the House what direct action is taken by the police to deal with organisations after they are proscribed? Are their assets seized? Are their publications or websites closed down? The noble Baroness will know that I am particularly concerned about what happens if the internet service provider refuses to close down the site, or closes it down but allows the organisation to open up a new site with a different web address. How may we deal with that? What happens if the internet service provider is not based in the United Kingdom? Is there co-operation with ISPs based elsewhere? We strongly support the order.
My Lords, I, too, thank the Minister for introducing the order. It is impossible to have a detailed discussion about the merits of proscribing these four groups to assess whether it is right to proscribe them. Of necessity, the Government must work on the accuracy of the intelligence that they receive. It is difficult for those of us who are out of the loop, so to speak, to make meaningful comment about the individual organisations.
Notwithstanding what the Minister told us about the order, we can ask what the organisations have been up to in this country. Have other European Union member states, for example, imposed proscriptions on them? For that matter, have any other Government asked us to proscribe them? Clearly, if there has been evidence of any of the organisations being involved in terrorist activity on the ground, we will support the Government. But with this order, we enter into the realm of glorification of terrorism, with the two organisations Al-Ghurabaa and the Saved Sect. It would be interesting to know the Government’s reasons for proscribing them, although the Minister has given some explanation.
I have been unable to find out much on either organisation, so we must trust the Government’s deeper knowledge of them at this stage. It is very difficult, however, to keep track of the plethora of organisations, which seem to spring up daily. Is the Minister satisfied that all the organisations in this country that appear to have links to terrorism are being monitored? Conversely, are the Government also testing the appropriateness of organisations on the proscribed list? Will they, for instance, on humanitarian grounds, look again at the proscription of the People’s Mujaheddin of Iran, the PMOI, whose leaders and supporters worldwide are seeking democratic government in Iran? For example, among many state-initiated atrocities, Iran has apparently persuaded the Prime Minister of Iraq, Mr Nouri al-Maliki, to end the presence of the PMOI—who are protected persons under the fourth Geneva Convention and so entitled to political asylum—in the northern Iraq camp Ashraf City. Iraq, on Iran’s instigation, has cut off food and water for the many women and children living there. Do the Government feel that it is time to look again at the proscription of the PMOI? I simply ask the question.
Of course, it is of the utmost importance that we protect our citizens from the very real and present danger of terrorism, but we must use the considerable powers that the Government now have as carefully as possible. There are apparently many connected parts to the proscribed organisations, and perhaps one way of disrupting their activities would be to do what we do so well in Northern Ireland—seize their assets in this country, shut down their websites, as the noble Baroness, Lady Anelay, has suggested, and prosecute for incitement. Those are all lesser, yet firm, acts than acts of proscription, which should apply only to the most serious terrorist organisations.
I will end by quoting my honourable friend the Member for Somerton and Frome speaking in another place:
“We must be careful not to assume, simply because we do not like—and may abhor—an organisation, that we, as a state, should stop it being able to undertake its functions in this country. We should always, when possible, use the normal criminal law to ensure that people are charged with proper offences in court and that, if they are found guilty, they pay the appropriate penalty”.—[Official Report, Commons, 20/7/06; col. 503.]
My Lords, I will not attempt to name any of the four organisations, because I am sure I would get them wrong. I say at once that I have no difficulty at all with the third and fourth of the organisations. I have questions about the first two organisations. First, could they in fact have been proscribed under the existing law without having resort to the 2006 Act? Secondly, could the Minister give us some indication of the membership of the first two organisations in the United Kingdom? How many people will be affected by the proscription? Thirdly, she has not mentioned Hizb ut-Tahrir. There was a strong rumour at one stage that it would be proscribed under the new legislation. I am very glad if it be the fact that it has not been. Has a decision been taken not to proscribe Hizb ut-Tahrir?
My Lords, I follow briefly the noble Baroness, Lady Harris of Richmond, who referred to the PMOI, which was proscribed in 2001 and is one of the bodies listed in Schedule 2 to the Terrorism Act 2000, the list to which four bodies are to be added today. I do not expect the Minister to be forthcoming tonight, not least because an application for the deproscription of the PMOI is currently before the Home Secretary. But I like to think that even if a formal application had not been made, the Government would have hastened to carry out a review of the case, not least because of the very careful words of the noble Lord, Lord Carlile, in his recent report on the terrorism legislation. He expressed the hope that the Government’s working group responsible for scrutinising proscription would give serious examination to whether the PMOI really should remain proscribed.
The PMOI always looked very different from the other bodies listed in the schedule. For a start, the Government accepted that it had undertaken no military action outside Iran and had never attacked UK or Western interests. Plainly, its activities were of concern to no country other than Iran, and proscription was at Iran’s behest and borne of an understandable wish that we should be seen to be playing a full part in the international community’s fight against terrorism. How things have changed since 2001. There have been changes in the PMOI's activities and in its international status. In 2001 it ceased all military operations, which were even then aimed exclusively at military targets of the Iranian regime. With the outbreak of hostilities in Iraq, its personnel in Ashraf City, Iraq, handed over all their weaponry to the multinational force and, following an investigation which,
“found no basis to charge PMOI members with violations of the law”,
they were granted “protected persons” status under the Geneva Conventions. It is an odd circumstance in itself that we are proscribing such an organisation as a terrorist organisation.
The activities of others since 2001 are even more significant than those of the PMOI. Ironically, the Iranian regime at whose behest the PMOI was proscribed is now recognised as one of the world's greatest sponsors of terrorism—the terrorism which we were supposed to be helping it to fight. Our Prime Minister himself says so. Only the other day he laid the blame for the crisis in the Middle East at the door of Syria and Iran, saying that the Iranian regime supported terrorist activity across the region and Hezbollah in particular. He also added bleakly that if diplomacy failed to stop its nuclear programme it would face stark choices. I do not wish to see Iran in possession of nuclear weapons, and I do not wish to see military intervention by the West to prevent it becoming a nuclear military power. I am on the side of the leader of the NCRI, Maryam Rajavi, who calls for the people of Iran to take control of their own destiny and themselves get rid of this vicious and barbaric regime.
By attaching the terrorist tag to the only organisation capable of opposing the mullahs, we have been legitimising their rule. We have enabled them to argue that, faced with what the West apparently recognises is a terrorist threat, they have been entitled to take brutal measures within their country. On top of that, proscription has certainly weakened gravely the ability of the PMOI to present its case in America and Europe. It has stopped it engaging in political activity to gather support and build up opposition to the regime. It has made it more difficult to bring to public attention the crimes of the regime. It cannot possibly be for our benefit or that of the international community to hamper the activities of a body which represents a broad alliance of democratic forces in Iran and is the opponent of this terrible regime. If the terror label is removed from the PMOI, and all restrictions placed by the West on the Iranian resistance are removed, there is just a hope—one cannot put it higher than that—of democracy and freedom coming to Iran and this bleak period in Iran's history coming to an end.
I repeat that I do not expect a reply to the points I have made tonight but I beg the noble Baroness, in her deliberations, to bear in mind what I have said.
My Lords, as noble Lords will be relieved to know, I can be relatively brief as the noble Lord, Lord Waddington, has clearly and precisely outlined the ground that I had intended to cover. However, I will make a preliminary point relating to the debate in the other place at the end of last week. At that time Mr David Heath, my colleague, took up the point made earlier by Dr Rudi Vis that we should, both in the other place and here, have the opportunity and the time to deal with each organisation separately. Because we do not have that—because we are dealing with a list of 21 proscribed organisations—you have a wholly unfocused debate. That is not sensible.
I will not repeat what the noble Lord, Lord Waddington, said, except perhaps to dot a few “i”s and cross a few “t”s. He remarked that the PMOI had never—I repeat never—been responsible for any attacks on British nationals, European Union nationals or United States nationals. When introducing the proscription list, Mr McNulty said in the other place last week:
“When deciding whether to make an order proscribing a group, several additional factors are taken into account”.
“the specific threat that it poses to the United Kingdom, the specific threat that it poses to British nationals overseas, the organisation’s presence in the United Kingdom, and the need to support other members of the international community in their fight against terrorism”.—[Official Report, Commons, 20/7/06; col. 491.]
I do not think that the noble Lord, Lord Waddington, or I or any other Member who has contributed would contest that but, as he has already pointed out, you cannot accuse the PMOI of being responsible for those.
I find it very puzzling; in fact, I find the Government’s position on the PMOI inexplicable. On one hand, you have a frank admission from the former Foreign Secretary, Jack Straw, that the proscription was initiated and pushed by him—there is no doubt that it was pushed by Britain within the European Union—as a consequence of a direct request by the Iranian regime to him at the beginning of the negotiations which were designed to try to reduce the nuclear programme that it was following. Then you have, as the noble Lord, Lord Waddington, observed, the remark by the Prime Minister from the Dispatch Box in another place that the same Iranian regime that requested this is now a recognised state exporter of terrorism to the whole of the Middle East. Indeed, it goes further afield than that. It goes into Europe—there have been events in Berlin—and even to south America. I do not understand.
Likewise I do not understand why, as the noble Lord, Lord Waddington, said, the Government do not take a more favourable and supportive attitude towards the NCRI, which supports democracy, human rights, equality of women, law and the separation of church and state—all things that the theocratic dictatorship in Iran despises, but which we very much uphold.
My Lords, none of your Lordships would wish to challenge the fact that it is the duty of Governments to protect their citizens from terrorist activities. I neither challenge that nor wish to say anything about the four organisations listed, because the Secretary of State, his department and his Ministers have a knowledge of the facts that I, at any rate, and I suspect most of your Lordships do not share. However, as the Minister indicated, it is important to make a careful investigation when a body is proscribed, because of the serious effect on not only the activity of its members and supporters, but on those interested in its political activities.
It is most important that, from time to time, there should be a serious review of the activities of that body to see whether proscription continues to be justified. All parties in the House have accepted that as a proposition. Unless that is done, there is a serious risk not only of injustice to individuals, but that there will be abuse of the freedom of speech and the freedom to ventilate political opinion. I therefore hope that the Minister will reiterate that the Government accept the importance of this kind of review.
As the noble Lord, Lord Waddington, said, this is not the right occasion to ask the Minister to give a ruling on a specific organisation such as the PMOI—although the noble Lord has given very strong grounds indicating what the Minister’s answer should be. I wish to adopt a lower key, and a lesser demand, although I share the views of the noble Lord, Lord Waddington.
It is essential that this review should be carried out in depth and seriously. When one body on the proscribed list was said by the Foreign Secretary at the time of proscription to have never committed any terrorist offences in the United Kingdom; when, after many months of deep interrogation and inquiry by the American security authorities of PMOI members in the Ashraf camp in Iraq, there was no evidence of terrorist activities; when a raid by the French police on the headquarters of a body produced according to the press, nothing that could indicate any kind of terrorist activity, and when the umbrella body of that organisation is not listed as a proscribed organisation, surely the Government are under a clear and powerful duty to investigate and to be really satisfied that this proscription continues to be justified. If it is not justified, then serious injustice may be done and there may be a restriction on freedom of speech and on democracy that we in this country should not seek to establish a record for upholding.
I therefore urge the Minister to consider accepting—even if she cannot give us an indication tonight, although I hope that she will—that the Government need seriously, carefully, fairly and openly to consider the position of the PMOI, not as one of a group of 10, 15 or 20 organisations, but as an independent body whose record over the past few years can be investigated in great depth. If she does so, then I suggest, with great respect, that the answer may well be the one expected by the noble Lord, Lord Waddington, and the noble Baroness, Lady Harris. They accepted that she was not expected to give the answer tonight, but thought that it would be a good idea for her to give it pretty soon.
My Lords, I thank all noble Lords who have supported this order, in particular the noble Baroness, Lady Anelay, who has given such trenchant support to the orders and the necessity for them. I hope that I will be able to provide comfort to other noble Lords, too.
I can give the assurance sought by the noble and learned Lord, Lord Slynn of Hadley, on how we review such organisations. We keep under review a large number of organisations, although I cannot comment on specific details about them. However, I hope that your Lordships will be reassured to know that that is done by the proscription working group which brings together officials from the Security Service, the police, No. 10 Downing Street, the Foreign Office and the Home Office. If it was assessed that an organisation no longer met the criteria for proscription, then it would be considered for deproscription.
A number of noble Lords including the noble Baroness, Lady Harris, the noble Lords, Lord Russell-Johnston and Lord Waddington, and the noble and learned Lord, Lord Slynn of Hadley, specifically mentioned the PMOI. The noble Lord, Lord Waddington, is correct in saying that an application regarding that organisation is currently before the Home Secretary. It would therefore be wholly improper for me to say anything at all about it. However, I can assure noble Lords that what has been said in this Chamber will be noted. It will be brought to the attention of those who have to consider these matters and I am sure that it will have some effect. I cannot say what the effect will be, of course, but I can assure your Lordships that it will be considered appropriately.
I turn to the specific questions on internet service providers. As noble Lords will know, proscription means that it is a criminal offence to be a member of a proscribed organisation, or to distribute or circulate a terrorist publication to provide a service that enables others to obtain, read, listen to or look at such a publication, or to transmit electronically such a publication. We have therefore worked very hard with ISPs to look at that issue. For instance, we understand that the Al-Ghurabaa website was hosted in the United Kingdom and that the Saved Sect was hosted overseas. The company hosting the Al-Ghurabaa website has withdrawn its services. We are working with the police to consider possible enforcement actions, including the use of notices issued under Section 3 of the Terrorism Act 2006, which requires the removal of offending material from the internet. We know from experience in other areas such as child pornography that it is more difficult to deal with websites based overseas. The only way to tackle the issue is through international collaboration in the fight against terrorism, in which we are actively engaged. I can therefore assure the noble Baroness that we will take all appropriate action to deal with it.
Proscription means that the police can apply to a magistrates’ court for the forfeiture of an organisation’s assets. If appropriate, that can certainly be done.
The noble and learned Lord, Lord Lloyd, asked whether two of the organisations could have been proscribed under previous provisions as opposed to those involving glorification. It would have been very difficult under the old regime to so proscribe them. The specific nature of their activities does, however, fall squarely within the new glorification provision. There is therefore no ambiguity or difficulty in the current legislation. I think that it is arguable whether that would have been appropriate, or possible, under the old legislation.
I cannot give noble Lords specific details on the position regarding membership in the United Kingdom of those organisations. As noble Lords will know, however, it is not simply a matter of organisations that operate here or have a membership here. Their membership in other areas can have an effect here, and they fall within that remit.
On each of the four groups I hope that I have been able to assure noble Lords that appropriate steps have already been taken, and that they can be taken in reviewing those already proscribed and those that will be proscribed by this order. These are important matters. I agree that the consequences of proscription can be profound and far reaching. We therefore have to be most judicious in assessing who should or should not be on the list and when, and if it is possible, to remove those who may have properly been proscribed at one stage but no longer merit such proscription. It is an ongoing issue. A constant review, as opposed to simply a one-time review, is critical, as we must continue to assess the propriety of the continued proscription of each of the organisations.
I hope that I have assured noble Lords sufficiently to enable me to commend the order to the House without further ado.
On Question, Motion agreed to.
Armed Forces Bill
House again in Committee.
Clause 6 [Mutiny]:
Page 4, line 12, leave out subsections (1) and (2) and insert-
“(1) Mutiny by a person subject to service law is an offence.
(2) A person is guilty of mutiny within the meaning of this Act if-
(a) he agrees with at least one other person subject to service law to overthrow or resist authority; (b) he agrees with at least one other person subject to service law to disobey authority, and the agreed disobedience would be such as to subvert discipline; (c) he, in concert with at least one other person subject to service law, acts with the intention of overthrowing or resisting authority; or (d) he, in concert with at least one other person subject to service law, disobeys authority in such circumstances as to subvert discipline.”
The noble and gallant Lord said: I shall speak also to Amendments Nos. 22 and 23. Mutiny is a most serious offence and, happily, of very rare occurrence. Rightly, if someone subject to service law were convicted of mutiny and sentenced to imprisonment, it could be for life. With such a punishment, it seems to me that the wording of Clause 6 should be in language which is crystal clear and which defines mutiny. Tomorrow's serviceman—even one today—can access via the internet the wording of any recent Act or Bill. I have Clause 6 on my PDA, and you can now get a PDA for a relatively modest sum. So it seems to me that this Committee should be most careful about the clarity of the wording and definitions of major offences in the Bill.
My Amendment No. 19 is probing, and possibly prodding. The word “mutiny” does not appear in the text of Clause 6—only in the side heading and the centre heading above it at line 11. According to my staff college training in service writing, which I assume had its basis in legal practice, it was wrong to rely on the words of a side or centre heading, and my directing staff would have red-inked it as a mistake if I had done that. In the whole of Clause 6, the word “mutiny” appears in the side heading only. It appears twice in lines 31 and 34 in the following clause, Clause 7, so it seems reasonable to expect Clause 6 to be very clear in its references to, and definitions of, mutinous behaviour.
I noted a difference of approach in the way that some of the clauses in this part have been drafted. Some start, as does Clause 6, with the generality:
“A person subject to service law commits an offence if”.
Others—for example, Clauses 8 and 9—state explicitly that a person subject to service law commits an offence if he “deserts” or if he is,
“intentionally or negligently absent without leave”.
These offences, particularly desertion, are serious, and it is right to make plain what the defences are and to define them.
My Amendment No. 19 to Clause 6 is an attempt to emulate the approach of Clauses 8 and 9, so it starts with the words:
“Mutiny by a person subject to service law is an offence”.
It is not clear to me whether Clause 6 is drafted to catch a person subject to service law with a charge such as disobeying authority so as to subvert discipline, which does not have the word “mutiny” in the charge. If so, I do not like it. I attempt in my amendment to make it clear that mutiny is an offence for a person subject to service law; the amendment brigades as definition the four types of mutinous behaviour given in the present Clause 6 into one subsection.
The Marshalled List does not repeat exactly the amendment that I tabled, which was reflected in HL Bill 113(n) and in the Keeling version, which the Minister sent to many of us. The word “or” is now missing from the end of both paragraphs (a) and (b). My intention was to make an offence of the behaviour set out in any one of the four paragraphs that define mutinous behaviour. I now understand that it is not necessary to repeat the word “or” to make it clear that the behaviour set out in any one of the four paragraphs would be deemed to be mutinous behaviour, so I am content with the absence of the word “or”.
Amendment No. 22 simply follows my approach of clarity. In Amendment No. 23 I seek an explanation from the Mini