House of Lords
Thursday, 31 January 2008.
The House met at eleven o'clock: the LORD SPEAKER on the Woolsack.
Prayers—Read by the Lord Bishop of St Albans.
My Lords, in July 2007 the United Kingdom submitted a report to the United Nations Committee on the Rights of the Child setting out in detail progress against each of the recommendations made in 2002. The report highlights the good progress that the UK Government have made and reflects our commitment to improving the well-being of children and young people. It is available in the House Library.
My Lords, I welcome the Government’s review of Article 22 in relation to children detained with families seeking asylum, but will they extend it to include Article 40, which is concerned with the well-being of the child in custody? When will the Government ratify the protocol on the sale and prostitution of children which they initialled in 2001? Indeed, why not sign up forthwith to the UN convention, put it into domestic law, and make it of practical worth for children in the United Kingdom?
My Lords, I thank my noble friend. In underlining the fact that we will be reviewing our reservation against Article 22—an announcement made in early January—I can tell my noble friend that a ministerial statement will be made today launching a public consultation on that review. As for Article 40, we are currently exploring alternatives to custody for children and looking at more appropriate ways of dealing with low levels of offending. We want to improve education in custody and support young people when they leave custody. On the optional protocol that my noble friend mentioned, we have signed it, but he is right that we have not yet ratified it. We are checking the initiatives and the legislation which has come on to the statute book since we signed six years ago and will see if we are now eligible to ratify it.
My Lords, can the Minister say whether the tripling of the number of women held in custody over the past 10 years, the increase in the number of children held in custody to 3,000—to twice the number of children held in custody in France and Germany combined—and the closure of local authority secure units tally with the right of the child to contact with its parents? Will she encourage her colleagues to accept not only the recommendations of the noble Baroness, Lady Corston, that there should be a women’s justice commissioner to drive forward policy in this area, but that local custodial centres should replace prison for women so that children can have contact with their parents?
My Lords, as the noble Earl will know, we have a debate today on the very issue of women in custody—an issue on which my noble friend Lady Corston has done a great deal of work. On children in custody, as I said to my noble friend Lord Harrison, we are looking very carefully at everything that we can do to ensure that our duty of care to these children is the best that it can possibly be. We are simplifying sentence structure, looking at alternatives to custody and at education in custody, and particularly—I know the noble Earl will welcome this—supporting young offenders once they leave custody.
My Lords, does the Minister agree that at the same time as we emphasise the rights of these young children in custody and their rights when they are released from it, it is equally important that we ensure that those young children understand their responsibilities? With the rights of the child, there are concomitant responsibilities that need to be understood as part of the education programme that she was talking about.
My Lords, I very much agree with my noble friend. The Children’s Plan, which was announced in December, looks very much at our vision for children holistically—not only at their education but also at the rights and responsibilities of all our children.
My Lords, will the Minister say what the Government are doing to educate our children, and indeed the general public, about what the convention means to them? At the very least, will the Government encourage local authorities to take up UNICEF’s Rights Respecting Schools programme—I declare an interest as a trustee of UNICEF—which teaches children what their rights are and what their responsibilities are to other children and adults?
My Lords, the noble Baroness is absolutely right; it is very important that the public at large, and children in particular, are made very much aware of their rights under the UN convention—one of the most popular conventions that there has ever been. We have a number of programmes on raising awareness, as the noble Baroness will know. We are committed to operating a number of web-based portals, enabling children and adults to access information about the convention. For parents and young people, Directgov has a popular section on it. For children under 10, DirectgovKids has a section on it. We also have specific training on the convention for all those who work with children.
Railways: Gatwick Airport
asked Her Majesty’s Government:
Whether, with regard to the proposals by Southern Rail to withdraw the Gatwick Airport service (Watford to Brighton), they have taken into account the three route utilisation strategies which highlighted the dangers of adding extra passengers to the interchange at Clapham Junction.
My Lords, station safety is controlled by station operators. In the case of Clapham Junction, this is South West Trains, which monitors safety matters through a process of risk management. It is the station operator’s responsibility to implement appropriate measures to control the risks that it identifies.
My Lords, I thank the Minister for that reply. Is he aware that the West London Line service to Gatwick Airport is becoming increasingly popular? Can he say, therefore, why this service is going to be restricted to Clapham Junction, forcing passengers to change at the already overcrowded platform 17 on the grounds of the need to change and transfer the rolling stock on that line to Thameslink? I represent one of the boroughs through which the West London Line passes.
My Lords, as a regular traveller on the line and a user of the service, I am aware of this. However, it is a necessary change as part of the reallocation of rolling stock to make continued and more efficient use of the Thameslink line. I am sure that the replacement service will operate as effectively, if not more so, than the current one and that the service changes generally will benefit far more passengers, who will be able to access an increased range of services operating on the Thameslink route.
My Lords, as the noble Lord is a regular user of the line, does he agree that the route utilisation strategies on the Brighton main line do not provide sufficient capacity for people travelling to and from Gatwick? Will he talk to his honourable friend in another place about how the new franchise for that line, which is to be let in two years’ time, should include within it the reopening of the line from Uckfield to Lewes?
My Lords, the noble Lord has raised two issues. First, I appreciate the point he makes about the Lewes/Uckfield line. I know that there has been continuing pressure for the reopening of that part of a railway line which probably should never have been closed. I can well understand that, and of course refranchising will enable some discussion of that possibility to take place. It has already happened once when the franchise was let some years ago. On the noble Lord’s second issue about Gatwick and the route utilisation strategies, improvements are being made to timetabling, and from the end of this year there will be additional London to Brighton services created through extra running-on from Gatwick down to Brighton from the Victoria to Gatwick service.
My Lords, I and many members of my family frequently use the Watford to Brighton through service in order to get from west London to Gatwick Airport and vice versa. If it is abolished, we, together with thousands of others, I suspect, will revert to going by road with all the implications for traffic congestion and pollution that that implies. No one wants to hump heavy luggage up and down the numerous steps at the overcrowded Clapham Junction interchange. Is the noble Lord aware that in my experience this service is never less than half full and more often than not three-quarters full? Is it not the height of folly to think of abolishing such a useful service?
My Lords, I can well appreciate the problems described by the noble Lord at Clapham Junction’s platform 17 with its steps and the steeply curved platform which creates a rather wide gap. The noble Lord makes a point, but the service operates only once an hour outside the peak period. More adequate services will be provided so that the important link he spoke of between Watford and Gatwick can be maintained, and many other services that come through Clapham Junction stop at Gatwick. My understanding is that consideration is being given to reviewing whether it would be practicable to extend the Watford journey further south from Clapham, perhaps to Croydon.
My Lords, it is obvious from the questions being asked that this is a very popular service. What consideration is being given to other investments to help Thameslink? For example, I gather that there are single voltage trains which could be converted to dual voltage and thus might solve the Thameslink problem. There are also 422 series trains which are lying idle in sidings at Eastleigh that could have been converted. Would it not have been better to have invested in those trains rather than cut a service that is so popular?
My Lords, obviously those issues are worth considering, but in terms of deploying the rolling stock, it was felt that this was the best possible solution. The service is only hourly and many other services run on that route, but I understand that it is the interconnection which is the problem, and that is what we have been addressing. However, this issue should be understood in the context that yesterday the Secretary of State for Transport made it very plain that as from the end of this year a further 1,300 carriages will be added to the railway rolling stock. I can tell your Lordships’ House this: I cannot remember a single Conservative Secretary of State ever making an announcement of such a massive expansion of our rolling stock.
My Lords, does my noble friend accept that platform 17 at Clapham Junction is by far the least customer-friendly and usable platform in the whole of that very busy station? It is on a very steep curve and passengers getting off the train have to step down a considerable distance to get on to the platform. There is no lift and the staircase is narrow and bends twice. It is the most dreadful station if one is carrying luggage, particularly if one is on the way to the airport. My noble friend hinted at the possibility of train services being extended at least as far as East Croydon. Should this not be actively pursued by the railway company?
My Lords, I cannot claim regularly to use platform 17 but I have made it plain that I have used it on a few occasions, mostly when I am going to watch Brighton and Hove Albion play Watford. My noble friend is quite right; the possibility of extending the route down as far as East Croydon is being actively looked at.
My Lords, can the Minister explain why it is that there are strict regulations insisting that restaurants and hotels provide easy access with not too many steps for the elderly and the disabled, whereas the railways, and London Underground in particular, have no such obligation when the problems are far greater?
My Lords, why does the Minister say that it is an hourly service when it is a quarter-hour service? Going to Brighton has nothing to do with it. Gatwick is a major airport; it must have a high-speed express; it has worked very well for many years. Why is it that under this Government public services, which they claim are being improved, are getting worse?
My Lords, the Brighton to Watford service runs at five minutes to every hour from, I think, 9.55 am until 9.55 pm. As the noble Lord knows, there is already a high-speed service which runs from Victoria through to Gatwick. I have explained that that is going to be improved at the end of the year, with a further run-on to Brighton. We have improved rail services in this country immeasurably. We are now doubling the investment going to rail services. If the noble Lord could boast such a proud record when he was involved in government, I would be very impressed indeed.
My Lords, we must move on. We are in the 16th minute.
Animal Welfare: Horses
My Lords, Defra has no record, over many years, of horses being exported for slaughter from Great Britain. A ban would still be illegal under EU free-trade rules but government policy is to prefer meat exports rather than live exports for slaughter. Regulation 1 of 2005 also introduced new EU welfare measures which came into force last January, including measures for horses that we had put to the Commission with the support of welfare organisations. The Commission will review the regulations in 2009 and consider further welfare-in-transport measures.
My Lords, I thank the Minister for that reply. Will the Government take further action to deal with this unnecessary and abhorrent trade? The latest evidence makes it absolutely clear that the existing European regulations are not being enforced. Thousands of horses are being transported hundreds of miles in appalling conditions, with mares and stallions herded together, with no rest and no water. As to the review to which the Minister referred, the European Commission is clearly sympathetic and has brought forward the review from 2011 to 2009. Will he make strong representations in that review to ensure that the situation is improved from its present dreadful state?
My Lords, let me make it absolutely clear that the thousands of horses mentioned by the noble Lord are not from this country. We have gone back through the records and no one can find anything for a decade. About 12,000 horses are exported for many reasons, including for shows and trade. The UK Government and welfare organisations are encouraging individual citizens to pile in letters on horse movements across Europe to Commissioner Kyprianou so that when the welfare review comes in 2009—as the noble Lord said, it has been brought forward—we can stop this vile, unnecessary trade across most of Europe. As the noble Lord knows from previously raising the matter in the House, countries in southern Europe are the worst offenders. They seem to take no account of the welfare conditions needed for horses being transported for slaughter.
My Lords, does the Minister agree that if the owner of a Welsh mountain pony wants to sell it, the cost to register it will be £22? Many ponies sell for £5 to £15 a head, which is less than the registration fee. If all horses were to be banned from crossing national boundaries, the Minister must realise that there would be no market left for the type of animal that I am referring to. What would the Minister do in that situation to ensure that they were protected in a welfare sense?
My Lords, I have gone back and checked my records on this. The noble Lord asked exactly the same question on Tuesday 4 May 2004 when he followed the noble Lord, Lord Higgins, who had asked the initial Question. I am tempted to read out the answer given by the noble Lord, Lord Whitty. Basically, the point is not relevant to the Question—Welsh ponies are not being exported from Great Britain for slaughter; that does not happen. We have no record of it happening; no licences have been applied for or, indeed, issued. Anyway, the issues of normal trade go well outside this question.
My Lords, does the Minister realise that I have the greatest sympathy for him answering this Question? It is my great failure that I never managed to do anything about this vile trade. It has spread further than Europe; horses came in from South America via Italy. I had a lunch here for the German Minister for agriculture, on bananas and horses, at the end of which he said yes to bananas but, “No, we will not do anything about the horses”.
My Lords, I take on board what the noble Baroness said; this is a trade. It is a cultural issue as well. For most residents of this country, the horse is a companion animal rather than a food production animal—it is as simple as that. There is no great measure of whether they travel well or not. Fewer than 4,000 horses are slaughtered in this country, and most of those are for pet food. The reality is that we have to do what we can to improve the trade and the transport welfare arrangements. While the trade is legal, there is no reason why the welfare conditions should not be improved and more hurdles erected that will make people think, “It’s not worth continuing this trade because we’ve got to look after the horses so well”.
My Lords, a further threat to equine health and welfare comes from African horse sickness, which is transmitted by the same midge that has brought us bluetongue. Will the Minister confirm that, should an outbreak occur somewhere in Europe, live exports from that country will immediately be banned? Are there plans to include contiguous countries in that sort of ban?
My Lords, I will write to the noble Lord. I would have needed notice to give him those details. We are continually on the lookout for that disease among the horse population. We have had one or two incidents in the past couple of months in which we thought we might have had it, but laboratory tests have turned out to be negative. I cannot say at present whether there would be a ban from the countries concerned. That does not even occur with animals but, as noble Lords may find out from the next Question, far fewer farmers are now importing sheep and cattle from Germany because they realise the sense of that.
My Lords, there is a trade within Europe, particularly the new countries and the southern European countries, of horses for slaughter for food consumption, and the welfare conditions are nowhere near as good as we would wish. That is why we want to work through the EU so we can get scrupulous and vigorous implementation of the regulations. As I said, they were improved by Regulation 1 in 2005, which came into force last year, and are due for review in 2009. In the review of those regulations, we intend to do what we can with the welfare organisations to improve the welfare conditions of horses during transport.
My Lords, Defra has placed an order with Intervet to supply 22.5 million doses of bluetongue vaccine for a vaccine bank. Those will be used in England and, potentially, in Wales. Keepers of susceptible animals in the protection zone will be able to protect their animals from bluetongue by purchasing vaccine doses from the bank.
My Lords, I am grateful to the noble Lord for that reply. Does he agree that this is a very serious disease and that it is much more aggressive in its second year than it appeared to be in its first? For example, in Belgium, what seemed to be a mild outbreak in 2006 ended up with 40.9 per cent of Belgian sheep having to be killed because of bluetongue.
What funding will there be for vaccine? I understand that in Holland, for example, the cost of the vaccine is being fully reimbursed by the EU, which is also paying 50 per cent of the administration costs. What degree of importance is the Minister placing on publicity to farmers and other animal keepers to ensure that a high level of vaccination is achieved in order to eradicate the disease?
My Lords, the noble Countess is right about what happened in northern Europe last year. We are in a fairly unique position in this country; from the latest figure, we have had 66 outbreaks. There have been more than 19,000 in Germany. It is rampant in parts of Europe and was in fact rampant before it was discovered. The incidence was low at the end of last year and when it comes back—there is no question about that—we will potentially have enough vaccine for animal keepers in the protection zone. I emphasise that, under EU rules, only animals in the protection zone can be vaccinated, but we can change the shape of the zone to include more keepers than before.
Discussions are due to take place in Brussels on the Commission’s announcement regarding funds being available to reimburse certain costs. Our vaccine supply will cost Defra around £11 million, but it may be that farmers themselves will be able to vaccinate their animals if the vets think that they are competent to do it. That would reduce costs. Regarding reimbursement, that is of course affected by the United Kingdom’s rebate from EU funding, which sometimes stands in the way of our getting benefit from particular schemes.
My Lords, will livestock owners be doing this on a voluntary basis under direction from Defra? Will the virus that is used for this be the same virus that has been rampant in the European Union? Will vaccination be co-ordinated with what is happening on the Continent?
My Lords, it will be voluntary. All these issues are actively being discussed, and have been for several months, with scientists, vets and representative members of the industry. We are not doing anything as if it is coming down from Defra; we want to take the industry along with us, in partnership, so it will be voluntary. The vaccine is to deal with serotype 8 of bluetongue. There are 23 other serotypes, and we almost have to hope that the one which comes back will be number 8, as that is our vaccine. I think that Spain and Portugal deal with three different versions of bluetongue, and other countries deal with different numbers. There is an issue there, but we need to deal with it by good partnership.
There is lots of publicity for farmers and animal keepers, so they know exactly what they need to do. Once we have the vaccine available and have completed the discussions in Brussels, there will be full announcements, consultation and all relevant publicity.
My Lords, does the Minister agree that British livestock farmers now face their biggest challenge ever, practically speaking, and especially in 2008? We must prevent any further spread in the UK, as the alternative is the decimation of our cattle herds and sheep flocks. Will Defra scour the world to obtain more than those 22 million vaccine doses? That was well done; it was an achievement to do it. Yet the fact of the matter is that unless all cattle and sheep in the UK are vaccinated, many farmers will be on the road to ruin.
My Lords, the 22.5 million vaccine doses comprise 20 million doses for England and potentially 2.5 million for Wales, as requested by the Welsh Assembly Government. However, under EU rules, one can vaccinate only in the protection zone. If the disease comes back on a different scale, it may be possible to make the whole country a protection zone, because that would be good for internal trade. We fixed the figure for doses on the basis of it being a voluntary vaccination in the protection zone. I do not think that there will be a shortage. It is a new vaccine, which is certified only for sheep and cattle at present. It can be used on other susceptible animals, but that would have to be on the advice of a private vet.
No, my Lords. If the rebate did not exist, we would be paying more into the EU net, I understand, than France and Germany. I shall not argue about the rebate. The mechanism by which the Commission will want to help member states with vaccinations has not been agreed. The vaccination is new. A vaccine was not available for Belgium, Holland and Germany. I understand that the Netherlands ordered vaccines last week. Until then, the United Kingdom was the only country in the EU which had ordered any vaccines for serotype 8, which we did some weeks ago. If the EU offers help, it may make loads of rules. It may demand compulsory vaccination. It may demand vaccination only by vets, which would vastly increase the cost. We want to be flexible and avoid unnecessary costs. To that extent, we will not want a lot of EU rules attached to EU money.
Business of the House: Debates Today
My Lords, I beg to move the Motion standing in the name of the Lord President on the Order Paper.
Moved, That the debate on the Motion in the name of Lord Guthrie of Craigiebank set down for today shall be limited to three and a half hours and that in the name of Lord Ramsbotham to two hours.—(Lord Rooker.)
On Question, Motion agreed to.
War Powers and Treaties
rose to call attention to Her Majesty’s Government’s consultation paper on War Powers and Treaties (Cm 7239); and to move for Papers.
The noble and gallant Lord said: My Lords, I declare an interest as the director of a United States defence company called Colt. I am grateful for being able to introduce this important debate on war powers and treaties. The excellent and helpful consultation paper produced by the Ministry of Justice states:
“The power to send men and women abroad into a situation of armed conflict is one of the most important decisions a government can ever take”.
In a democracy, it is surely desirable that decisions by Governments to use Armed Forces extensively and substantially be taken on the basis of thorough and accurate information made publicly available, and of candid and consistent explanation by Governments, fully involving Parliament in advice and decision. However, although it is highly desirable, can it be fully entrenched in our constitutional practice?
We should be cautious in letting the experience of the Iraq war, which has undoubtedly given impetus to the debate, overinfluence our deliberations. Recent armed conflict has taken many forms. The background and run-up to the Korean War, Suez, the Falklands, the Balkans, Kosovo, Sierra Leone, Afghanistan, Iraq and Special Force operations have all been different. Often, the nature of the conflict has quickly and dramatically changed, and the rules and objectives of our forces have had to be amended. What I think is certain is that historically it has not been easy to predict armed conflicts far in advance of hostilities, and I do not think it will become easier in the future. New threats can emerge very quickly.
The services want to know that the country is behind them before they are committed, that they are supported by Parliament and that what they are being asked to do is legal. Parliament’s stamp of approval is important but Parliament must not run the risk of hazarding the lives of service men and women. Secrecy, security and surprise are critical to many operations and if, for instance, one day it became necessary militarily to pre-empt an enemy attack—and that is not inconceivable—how would Parliament debate the actions in advance? Parliament is unlikely to have all the necessary intelligence to have a fully informed debate. This, of course, may not always be essential and this problem may well be solved by the existing or a new parliamentary committee or committees.
Should Parliament rely on a member of the Government—the Attorney-General’s legal advice? Should there be other, more independent advice to Parliament, which may be contrary? I hope that noble and learned Lords will address this but it would be unsettling for those deploying to hear of lawyers expressing contrary views and introducing uncertainty. The prosecution of members of the Armed Forces who take action in good faith would be wrong.
The deployment of a military force for armed conflict is complex and takes—as it did for Iraq or Afghanistan—considerable time. Of course, the very deployment before hostilities can be a deterrent in itself but our current arrangements allow quick decisions to be made and we have been able to act quickly, often before the situation on the ground has deteriorated. The armies of other countries, notably Germany and the Netherlands, are envious of our current procedures. We are likely to work in a coalition or alliance. When I was Chief of the Defence Staff in the Kosovo crisis in 2005, it was very noticeable how the United Kingdom forces could be assembled and deployed quickly in circumstances in which other countries’ forces could not respond because of their parliamentary procedures, which had to be observed.
As a member of NATO we are committed to aid other members who are attacked, and the United Nations charter mandates countries to undertake operations should the Security Council require them. As a signatory of NATO and UN treaties we are expected to commit troops quickly when called upon to do so. We also have to recognise the difficulties that arise once a force is deployed. Circumstances change. Humanitarian and peacekeeping operations can suddenly become peace enforcement and develop into armed conflict. All four of these states can take place in a theatre at the same time. Deployments lead to unforeseen consequences and mission creep. I well remember visiting troops delivering cups of tea and medical assistance to elderly ladies at one end of a village when suddenly their comrades at the other end were attacked with great ferocity. Afghanistan is an interesting example. Many failed to predict the intensity of operations there and I suspect that some would not have been so keen on deployment if they had realised what that commitment was going to be.
Formal declaration of war has been described by some as an historical anachronism and it is difficult to see occasions when it would happen. I understand why many think that the royal prerogative being the legal basis for the Government’s war powers is an outdated state of affairs in a modern democracy. Having said that, it has not served the country all that badly over the years.
I do not believe that one should legislate and have a statutory solution. Deployments vary so much and are accompanied by much uncertainty. One template would rarely work for all situations. I see the best solution being a formal but non-statutory convention. It would be necessary, whenever it was possible and sensible, to seek parliamentary approval for deployment before service men and women were committed, but there is a need for some flexibility and it would not always be wise or practical to debate prior to deployment, even though parliamentary debate and approval would be highly desirable. It would also be reassuring for the Armed Forces. I do not see it as particularly helpful for us in the House voting but it would be of immense value if we were to debate, preferably before the House of Commons had their debate, and were able to inform them and the Government of our views. There is much experience in this House which should be used.
If for some reason armed conflict or substantial deployments occur without Parliament’s approval, it would be important for Parliament to meet at an early opportunity to endorse the decisions which had been made. I also see a necessity for Parliament to watch and discuss the progress of a campaign from time to time, always bearing in mind the effect such a debate would have on our troops in the field. It is almost inconceivable for the Prime Minister and Government to commit troops without thinking they had the backing of Parliament. We should be concerned that parliamentary oversight could, unless we are careful, lead to pressure to debate how operations should be conducted. Parliamentarians are not qualified to do this and they must avoid micromanaging and taking tactical decisions. These are the province of the commanders on the ground. What Parliament should debate are the objectives, the legality of what our forces are being asked to do, and in very general terms the size of a deployment and likely direction. These last two are notoriously difficult to predict, depending very greatly on the actions of the ill-intentioned that are causing the problem in the first place. We are not in control of what their reaction to us will be.
This is a difficult and complex but very important subject which needs debating. We must avoid an overly prescriptive solution and maintain flexibility. Slavishly following a parliamentary statutory procedure on every occasion, whatever the circumstances, could endanger the very people we are trying to help. I beg to move for Papers.
My Lords, the worthy aim of the consultation document is to increase the say of Parliament in the areas of treaty ratification and declarations of war, thereby rebalancing the relationship between the Executive and the legislature. The Prime Minister’s Statement last July begged many questions, some of which were raised in the consultation document, and others were in the valuable response from your Lordships’ Select Committee on the Constitution with its emphasis on flexibility rather than the rigid statutory framework. Those questions were also emphasised in the excellent opening speech by the noble and gallant Lord, who spoke from experience, stressing caution, the diverse nature of conflicts and the problems of legal advice, in that the Attorney-General would have drawn on a very wide range of legal opinion before giving his own view.
The question of ratification of treaties is of course much less controversial. From my experience in chairing the Foreign Affairs Committee in the other place, I cannot recall an example of where we debated the ratification of a treaty. It is clear that by far the greatest number of treaties are highly technical, and those which are not so technical but controversial will be scrutinised in detail on the Floors of both Houses, as is happening now regarding the Lisbon treaty, for example.
The question is put as to whether the 21-day Ponsonby rule should be extended. The Government have already said that they would respond positively, and much depends on the mutual respect of the Government and Parliament. For example, although there is an obligation on the Government to respond in the other place to Select Committee reports within two months, if there is a case for extension the committee will discuss and reasonably agree to that.
The issue of war powers is the difficult sector, as the noble and gallant Lord stated. The starting point is the need to rebalance the great accretion of power to the Executive and the extension of prerogative power, partly as a result of two world wars. This is felt in the domestic sphere but very much in the field of international affairs. It is properly said that during the Iraq conflict the Cabinet became virtually a dignified part of the constitution and many of the decisions were made by the Prime Minister and his entourage. The specific problems in international affairs include the information revolution and the need for increasing specialisation at a time when Parliament, alas—certainly the other place—is becoming more parochial and where the pathway to Parliament is so often through local government, which is very proper, or through being a research assistant to another Member. Yet this House is where there are people with direct military experience. Indeed, as one saw in the US during the Iraq war, Richard Armitage and Colin Powell at the head of the State Department were far less bellicose than the non-military men at the head of the Department of Defense—the management experts Donald Rumsfeld and Paul Wolfowitz.
Another factor is the speed of change, where, as the noble and gallant Lord said, there can be a sudden worsening of the situation, an internal coup or whatever. Also, one is dealing with allies and, in any event, there are international obligations under the NATO treaty, as there will be under the Lisbon treaty, and there is Article 51 of the UN charter. Perhaps the most fundamental problem is that of intelligence, which I shall come to later. Whatever the formal positions, as one saw in the United States on Vietnam, the role of the legislature may be quite limited. There is the problem of definition. For example, would the very successful intervention in Sierra Leone have required parliamentary endorsement?
To balance the experience of the Executive, Parliament must become more expert, and a number of mechanisms, including Select Committees and joint committees, can in practice be devised for that. Fundamental to informed parliamentary debate is access to intelligence. Certainly we have not solved that problem, as the Foreign Affairs Committee in the other place has frequently said. I went often to Langley to talk to members of the Central Intelligence Agency prior to the Iraq war. At least we were made to feel as parliamentarians that we were on their side. I did not have that same feeling when talking to our own intelligence people, who have a certain institutional mistrust of parliamentarians.
So far as concerns the parliamentary vote, there is necessarily a note of scepticism about what would happen in practice. The case study of Iraq is not helpful. When Parliament did have a substantive vote, the war drums were already beating, there was a certain momentum and our forces, along with coalition forces, were already at the border—so it could be construed almost as stabbing our soldiers in the back to take a different view at that point. It is clear that the problem of pre-emptive strikes would be ruled out by a formal vote, giving advance notice to any potential enemy. It is also true that your Lordships’ House has considerable expertise. I adopt what the noble and gallant Lord has said about at least having a debate here prior to any decision and vote in the other place.
I shall make some brief conclusions. There is general agreement—which democrat could be against it?—that Parliament should have a greater say, and that the presumption should be that Parliament should be given information unless there are clear interests of national security to the contrary. The problem is to devise mechanisms to inform Parliament, and those mechanisms need to be flexible. Therefore I would favour the evolution of conventions, rather than statutory duties. Much depends on mutual respect and understanding to redress the balance between the Executive and Parliament. But overall, this debate is a welcome initiative by the Government and they deserve our congratulation.
My Lords, I thank the noble and gallant Lord, Lord Guthrie, for giving us the opportunity to debate what he rightly describes as this difficult, complex and important subject. I thank him especially for his speech, with which I found myself in respectful agreement almost throughout.
We all know—and they certainly do—that generals, admirals and air marshals have to take care not to train their subordinates to fight the last war, or the last type of war. We in Parliament have a parallel duty. It is relevant especially to conservatives like myself. By temperament and experience, we have a strong attachment to constitutional arrangements of long standing. But if today’s and tomorrow’s circumstances are different, we have to look closely, and with the caution enjoined by the noble and gallant Lord, Lord Guthrie, at whether our constitutional arrangements will continue to serve. We have to anticipate as best we can the unintended consequences of keeping them.
When we consider the royal prerogative of going to war, it is very hard to find a more central pillar. Of course, the classical military advantages are easily identified—they have been before and were again today by the noble and gallant Lord. For example, flexibility, surprise and overall national security are all well served by our present arrangements. However, it is not just the propriety, but the overall utility of this central prerogative power that nowadays is called vigorously into question, and it behoves us to understand why. I think the driving reason is that the international polity has changed abruptly and profoundly since the end of the last war. The founders of the United Nations meant it to do so. From that time, we have increasingly accepted the growth of supranational obligations enforced by supranational jurisdictions. Thus, for example, the long arm of the International Criminal Court can reach out to every individual in every participating member state, including our own.
Not surprisingly, these developments have not gone unnoticed among those who may have to go and do the fighting when this country is committed to war or to any eruption of armed conflict which may call for them to risk their lives. No longer is it an appropriate reassurance—if ever it was—for authority to say to them, “Do what you’re told, lad. The Army will stand behind you”. Some of them may now be expected to reply, in Ernest Bevin’s succinct words, “I’ve ‘eard different”. I do not think that we should expect this development to subside.
Of course, anyone with only the limited, and now distant, military experience of national and reserve service will speak of these matters with considerable diffidence in the presence of noble and gallant Lords. But I am able, if I may put it like this, to fall in behind the most senior of them all—the noble and gallant Lord, Lord Bramall, in his evidence to your Lordships’ Constitution Committee on 18 January 2006. Describing the three points that he said the Armed Forces need to be reassured of before being committed to a large-scale military operation, he said:
“First, they would like to know that they had the support of the country, secondly, that they had the support of Parliament and, thirdly, that what they had been asked to do was legal, not just within the law of the land but if possible within a wider international context which would put the legality of the use of force beyond doubt”.
I noted, not with surprise, that the noble and gallant Lord, Lord Guthrie, virtually repeated those words—certainly those thoughts—in his speech today. None of that is surprising. I have also heard the noble and gallant Lord, Lord Inge, say much the same to this House on previous occasions.
Because of that, I now believe that if we do not provide for an obligation to rest upon government, with sensible provision for emergencies, to obtain the approval of at least the House of Commons before committing our forces to war, there will be at least one serious unintended consequence. I believe we can foresee an increasing propensity among our servicepeople to question the chain of command as to the legality of an operation, and even to mark their uncertainty and anxiety by refusing to take part in it. If the Chief of the Defence Staff can ask that question, we might expect them to ask why they should not ask it too.
What a military and personal disaster that would be. We owe them our protection from that agony. Of course, parliamentary approval will not guarantee legality but it will at least make illegality more unlikely and more difficult, and it should provide a guide as to whether the country is behind them.
How is that to be achieved? The Government’s consultation paper, to which the noble and gallant Lord referred us, discusses impressively, and with possible drafts, the respective merits of legislation and convention. Along with him, I believe that the most serviceable means will be the detailed House of Commons resolution in one or other of the variants described at pages 44 to 49 of annexe A to that paper. By whatever means, however, I am now persuaded, with your Lordships’ Select Committee, that a change of this character in our constitutional arrangements must be made.
My Lords, I, too, thank the noble and gallant Lord, Lord Guthrie, for raising this topic. Last May, in the debate on the Constitution Committee’s report, Waging War, the then noble and learned Lord the Lord Chancellor put up a spirited government defence for the Prime Minister’s royal prerogative. Mine was a lone voice in support. All other speakers advocated parliamentary involvement. The consultation paper before us—signed by three senior members of the Government and echoing remarks made by the present Prime Minister last July—turns on its head the view espoused by this Government only eight months ago. Am I now also persuaded to do a somersault?
The issues are complex and some key factors are barely mentioned. First, are there not two broad categories of conflict in which we might become involved? As shorthand, I class these as “wars of necessity” and “wars of choice”. In the former, the country or key national interests are directly threatened or even under hostile attack. The international right of self-defence can be invoked. It would be a formality—were it to be required—to have parliamentary approval. Our forces would act to defend themselves and our interests. So I confine my remarks to wars of choice: that is, to offensive operations overseas on which the Government wish to embark.
I question whether this is to be the norm, rather than the rare exception of the past few years, when this Government have so actively engaged in wars of choice. For any British Government, the use of force in a war of choice should be a last resort; not the first, nor even an early, action to be taken to achieve a strategic aim. What preparations have the Armed Forces put in hand for this war of choice? The paper pays too little attention to this and to prior parliamentary scrutiny and challenge in the pre-deployment phase and to the backdrop of diplomatic and economic treaty obligations and other relevant leverages. The paper does not deal adequately with what might be termed the deterrent use of forces or prolonged campaigns—for example, by deploying part way to the theatre, or even threatening to do so with the object of persuading the adversary that they should back off and so deterring conflict; or remaining poised over the horizon.
I am not considering the nuclear deterrent, which I assume the Government are not addressing, but they should make that clear. Setting aside the very valid questions raised about the definitions of “armed conflict” and “armed forces”, what is Parliament formally to approve? References are made to the,
“power to engage the country in war”;
to the need for,
“Parliament to have a substantive vote on a proposed deployment”;
to the need to,
“commit armed forces to armed conflict abroad”;
and to the need to approve,
“decisions by the executive on substantial deployments of armed forces into potential or actual armed conflict”.
There is some confusion, it seems. Governments must distinguish between the principle or aim of a deployment abroad; the order to prepare to deploy abroad; the actual movement overseas and its scale, but not its employment, in an overseas operation; and the use or threat of use of force in conflict. The document merely proposes that it would be for the Prime Minister to decide at what stage of the above he must seek parliamentary approval. Is this approval to be confined to British boots on the ground abroad, or to the use of force against an overseas opponent? That force could be delivered by aircraft or UAVs operating from home or friendly bases—the RAF has been involved in operations over Iraq almost continuously since the first Gulf War in 1991—or force could come from naval vessels on the high seas. On top of this lack of clarity, the Government foresee a series of situations when pre-clearance by Parliament would not be sought—in recess or dissolution and even if Parliament were sitting, on grounds of security. In such situations, it would be for the Prime Minister to decide. Would not decisions to withdraw or reduce force levels, even to surrender, also remain with the Prime Minister? Parliament’s sovereignty could only be partial and the Prime Minister would in effect continue to use his royal prerogative. Even in the 2003 invasion of Iraq, when the Commons took a pre-combat vote, Parliament was given to understand that it was not regime change but the threat from WMDs that justified and made legal our invasion.
The proposals before us, though superficially attractive, are still flawed. Parliament will be attempting to judge and formally approve a difficult and dangerous situation, possibly misled over and/or in ignorance of key facts. More critically, there are too many ways in which the Prime Minister of the day might choose to disadvantage the timing of a formal vote or even sidestep it altogether. Is there, in fact, any greater assurance of parliamentary sovereignty over the prerogative than can be exercised by the normal, well tried and tested means of votes of confidence and other methods of challenging the Executive?
Noble Lords should be clear on this point: the Government propose that there could be occasions when the Prime Minister continues to use the royal prerogative and bypasses Parliament and that thereafter it will not be necessary to seek retrospective approval. That negates the argument that parliamentary approval is a necessary precursor to conferring legality. It should remain the Prime Minister’s responsibility to give clear direction to the Armed Forces; he should not look to Parliament to absolve him of that responsibility and so possibly avoid the political dangers of facing a vote of confidence.
How often in future will we be embarking on offensive wars of choice? Have we not had enough of them? We are not arming ourselves to carry them out at such a rate in the future as we have done in the past decade; we are even now sending ill-prepared troops into operations in Afghanistan. Is not the whole concept rather too academic and devoid of realism? I have not somersaulted and, on reflection, nor should the Government.
My Lords, this is one of those significant moments in the quiet evolution of the British constitution when often we fail to recognise the significance of what we are discussing. I am extremely grateful to the noble and gallant Lord, Lord Guthrie, for giving us the opportunity to debate this crucial moment in our constitutional evolution, because it is nothing less than that. I also congratulate the Government on their courage in getting hold of the issue of the royal prerogative in two of the most important areas that can affect the role of Parliament and on recognising the need to empower Parliament to be part of that decision-making process. I listened with great interest to the points raised by the noble and gallant Lord, Lord Craig of Radley, but to my mind the arguments made by the noble and gallant Lord, Lord Guthrie, and the noble and learned Lord, Lord Mayhew of Twysden, are conclusive. We live in a different world and we cannot commit our troops without a much wider process of decision-making than the one on which we have rested for so many centuries.
I shall speak today not about the war-making power but about the other leg of this set of proposals: parliamentary accountability with regard to treaties. On this, there is quite a long history. My noble friend Lord Lester of Herne Hill proposed that Parliament should be involved in the ratification of treaties as long ago as his 2003 Bill and he repeated the proposal in 2006. In another place, Kenneth Clarke, leading the Conservative Party’s study of the changing constitution, proposed that there should be parliamentary accountability in respect of the ratification of treaties. I am delighted that we have now reached something very close to consensus.
In our society today, treaties are of the greatest possible significance. Let me mention just two groups of them so as not to take up too much time. There is a whole group of treaties concerned with climate change, becoming more and more important and likely to grow in significance in the next few years. We no longer talk about the thinness of the ozone layer because, in the words of the former UN Secretary-General Kofi Annan, the Montreal protocol was one of the most successful treaties ever passed and actually managed to push back that threat a long way. Since then, we have had the Kyoto treaty, about which I need say little more except that up to now it is the only international treaty with force across the whole global pattern of climate change. Even now, as we sit, there is a major discussion about the renewal of that treaty, and it could not be of more significance for our citizens and the world.
There is another group of treaties of great significance, on arms. Even now, there is wrangling over the cluster bomb treaty between those who wish to weaken it by excluding what are called “clever” cluster bombs, and the wish of most of our fellow citizens throughout the world to have an effective cluster bomb treaty. It is still under discussion.
The small arms treaty is strongly supported by the British Government, to their credit. It is still not actually being implemented, and one does not need to look much further than the terrible events in Kenya to see how critical it is to have some sort of small arms treaty that will prevent the desperate outcomes in much of Africa and some parts of Asia from local civil wars, fed by the arms trade which makes a great deal of money from, essentially, the destabilisation of one country after another.
I could go on, but will just mention one other treaty which has so far not been put into practice at all, although passed by the General Assembly of the United Nations as long ago as 1993: the proposed treaty for the fair treatment and recognition of the human rights of migrants. Our country is today deeply caught up in a discussion about the rights of migrants, but there has never been a debate in this House on the issues raised by the treaty, which is now nearly 20 years old.
How can we look at accountability for treaties? I am clear that there must be more to it—in this respect it is very different from war powers—than simply agreeing that Parliament should approve the ratification of treaties. It is essential, in as complex an area as this, that it be matched by a parliamentary Select Committee which would look into treaties and decide which ones were so significant for our citizens, in this country and beyond, to be discussed and debated in Parliament before the Government finally give their approval. In this respect, the Ponsonby rules, to which the noble Lord, Lord Anderson of Swansea, referred, while impressive in their day—laying treaties for 21 days and leaving it for the House to decide which ones should be debated—are simply no longer adequate machinery. There must be a much more careful look at treaties, and a decision made by the House itself about which ones should be debated before they can be agreed to.
We therefore need a combination of those two things. To that end, I recently submitted a memorandum to the Liaison Committee, asking that it should seriously consider the possibility of a Select Committee on treaties. The committee said that this was a major issue which rather went beyond, in its view, its own competence and jurisdiction. Long ago, the noble Lord, Lord Wakeham, also proposed, in his well known report on the reform of the House of Lords, that there should be a careful look at treaties and that they should become part of the responsibilities of this House—possibly jointly with the other House; that is a matter for discussion which I shall not go into right now.
This is the moment for Parliament to seize this opportunity. It is particularly appropriate for this House, with its responsibilities and experience. That has been matched in other parts of the world, such as Germany, Canada and the United States, where the upper House has a special responsibility in this field. However, I strongly urge that, as a result of this debate, the Government, as part of their reform of the constitution of the United Kingdom and their exciting proposals, look closely at treaties and consider whether there should not be some form of Select Committee of Parliament, linked to—I stress that—a decision by the Government to accept that there should be parliamentary approval before major treaties are ratified. That would very much strengthen democracy in this country, and enable us to reach more considered decisions than some which are currently taken, virtually negatively, by a failure to ask for a debate.
My Lords, I, too, am very grateful to my noble and gallant friend Lord Guthrie for obtaining this important debate and for leading us into it so very clearly. It is not easy to decide how the royal prerogative should be constitutionally changed because, as has been said, the whole issue is complicated and there are many divergent factors. At the outset, I should make it clear that I am enthusiastic about what the Government are now seeking to do to involve Parliament more in it.
It is unthinkable that in this day and age our democratic Government should commit armed forces to a substantial war without the prior and manifest assent of Parliament. Only in this way can it be properly established that the country, which after all will have to see the war through to its conclusion, and at least the law of our land are formally behind such an enterprise, which may have many quite unpredictable international consequences. Such authority is also necessary both to sustain the highest morale of our Armed Forces, who have to carry out these operations and want to know that the country is fully behind them, and as a guarantee of some legal basis and authority for the war, for which further international authority may also be required.
At the same time, the responsibility for deploying forces, which is quite separate from commitment—in accordance with, say, treaty obligations, initially perhaps in a deterrent or a warning posture—and for actually carrying out war-like operations once they are embarked on, must for obvious reasons remain with the Executive and the chain of command that they set up or inherit. Nor must anything be done to compromise the secrecy and security of operations still in their planning stage, as this might remove the element of tactical surprise that is often so vital for any success in battle. This would be particularly applicable in operations to rescue British hostages or to pre-empt terrorism of the sort that occurred in Sierra Leone; then there would be no alternative but to act first and inform Parliament later. Moreover, any force deployed to put pressure on a potential adversary to comply with or not break international law would hardly want its impact weakened by a debate that might throw doubt on whether such force would ever be used in practice.
However, these diverging requirements can be reconciled by mixing regular, sensibly led and informative debates in both Houses, as is quite normal, with a clear commitment that before armed forces are actually committed to any large-scale, military action, assent of the other place is obligatory. This could easily have been achieved in the Falklands War before the landings, before the Anglo-American advance to recapture Kuwait, and before the coalition invasion of Iraq. In the latter case, there was an assenting vote in the other place, but it was on the wrong premise; otherwise, the result might have been different. It might not have been easy to get a supportive vote before the British and French landings at Port Said in 1956; I ask noble Lords to draw their own conclusions about that.
It comes down to a question of timing and the leadership of the Prime Minister. If the Prime Minister cannot persuade Parliament, either the country is embarking on the wrong war or there is something adrift in the Prime Minister’s leadership. It is of course a matter for the Government to decide whether what they seek can be achieved within the royal prerogative by parliamentary convention or whether legislation is needed that combines the essential requirement of parliamentary authority with some flexibility to meet a wide range of circumstances. The views expressed in this debate will no doubt be helpful to the Government in making up their mind. The important thing is that the principle of Parliament having the final say must be paramount. Wars in which this country gets involved fall broadly into one of two categories: those of survival and those of choice. If it is one of survival, parliamentary approval is no problem; indeed, Parliament might well be in the lead. If it is one of choice, it is even more necessary that Parliament and the country have the final say, otherwise hideous errors may occur and the best interests of the country may not be served, particularly if the royal prerogative has ever been abused. If noble Lords think that all this may make it more difficult to “slide” into war—to make no declaration of war is now our tendency—I would find that infinitely reassuring.
After all, when you think about it, unless the reasons for entering a war are cut and dried—as they have been in the past and may well be in the future—not only within the sensible interpretation of the age-old principles of a just war but above all over self defence of our own or allied territory, full-scale war, as opposed to the more indirect and selective use of military force, can no longer be considered a rational instrument of national policy. The concept that a state can improve things by charging into the middle of alien territory to rearrange the pieces according to its own political philosophy, however desirable that philosophy may appear, seems to me wholly out of keeping with the age. As the great Duke of Wellington, a man of such infinite common sense, put it two centuries ago, at another time when British Governments were not backward in indulging in wild assaults here, there and everywhere:
“I always had a horror of revolutionising any country from outside for political object. I always said that if they rise up themselves, well and good, but to stir them up is a fearful responsibility”.
If that or similar responsibilities are to be taken on board, they can be properly borne only by Parliament on behalf of the country, and not by a lone and perhaps lonely Prime Minister.
My Lords, I am delighted to follow the noble and gallant Lord, Lord Bramall, for two reasons. One is that in 1944 he was my brother Philip’s platoon commander. The other reason, more relevant today, is that with great respect I agree with everything that he has said. However, like my noble friend Lady Williams, I want to concentrate on the second part of the consultation paper covering treaties. The first part is extremely important, of course, and I welcome the proposals for requiring parliamentary consent to the sending of troops into armed conflict, but I do not feel that I have anything to contribute which cannot be said, or indeed has not already been said, much better by others.
But I do have some experience of dealing with treaties as a result of my involvement in the recent disputes over the United Kingdom/USA treaty on extradition. That is probably the most controversial treaty in recent years. It is controversial because it is unequal. The standard of evidence required for extradition from the United States to the United Kingdom is higher than that required for extradition in the other direction. It is a classic example of the defects of the system and plainly shows the inadequacy of the involvement of Parliament in the treaty-making process. This treaty was in fact signed before Parliament knew anything about it. The Ponsonby rule or convention is, I believe, inadequate, and the noble Lord, Lord Anderson, was unduly complacent in thinking that it was of any significant value. The Ponsonby rule or convention confers no power on Parliament to do anything whatever except hold a debate. Not surprisingly, very few Ponsonby debates have been held in recent years.
Parliament does have powers where changes in United Kingdom law are needed before a treaty can become effective because the Government, quite rightly, do not ratify a treaty unless any necessary changes in United Kingdom law have been enacted. That was the case in relation to the extradition treaty with the USA. That treaty needed an Order in Council under the Extradition Act 2003 to enable the United Kingdom to ratify it. Either House could have blocked the treaty by rejecting the Order in Council. Neither did so, although we on these Benches voted against the Order in Council in your Lordships’ House. One problem that applies to this is that once a treaty has been signed by a representative of the Government, they come under an obligation to use their best efforts to ratify it. If amendments or changes are needed to a treaty, it is very difficult to reopen negotiations which have already been concluded and have resulted in a signed treaty. It is essential, therefore, that parliamentary scrutiny should take place and, further, should begin even before a treaty is signed. Had that happened with the extradition treaty, the problem could—and very probably would—have been solved simply by the omission of six words from the text. The omission of those words would have converted it into an equal treaty.
I agree with my noble friend about the need for consideration of these matters by a parliamentary committee, preferably a Joint Committee of both Houses. It follows that the Government should send a draft of a proposed treaty to that committee before the Government sign it. The committee could then take evidence, if it wished to do so, and publish a report on whether there were likely to be serious objections to it. The committee could also at that stage decide whether the treaty is one which needs the consent of Parliament or, as a considerable number of them are, is a relatively unimportant or uncontroversial treaty which does not need further parliamentary consideration. Treaties which are not controversial and not of great importance could then go through without any further parliamentary procedure.
The role of this Select Committee would be very similar to the role played by the Select Committee on the European Union of your Lordships’ House in dealing with scrutiny of proposed EU legislation and the scrutiny reserve system which applies to that legislation. If the committee reported that the treaty would give rise to objections, the Government could continue negotiations with a view to modifying the draft, or they could go ahead with a signature but with the knowledge that this might well give rise to a rejection of the treaty by Parliament.
Treaties give rise to rights and obligations in international law. This is part of the definition of a treaty under the Vienna Convention of 1969. The Government are not allowed to make laws for the United Kingdom by the exercise of the prerogative, and they should not be allowed to use the prerogative powers to commit the United Kingdom to obligations under international law without the consent of Parliament. The details of the form of that consent can be left for a future date.
Parliamentary consent is needed in many countries—notably the USA, where the Senate must consent before a treaty can be ratified by the Government. I firmly believe that Parliament in this country should have similar rights.
I look forward with great pleasure to the next speech, which will be the maiden speech of the noble Lord, Lord, Janvrin.
My Lords, it is a great privilege to be on my feet for the first time in this historic House. I should like to take this opportunity to thank so many noble Lords for their welcome here. They have all been very kind and generous. I should also like to express my gratitude for all the advice I have received from many of the excellent staff of this House at every level; they could not have been more helpful. This is indeed a very warm and friendly place in which I find myself.
I add my thanks to the noble and gallant Lord, Lord Guthrie, for introducing the debate today. As I joined the Navy straight from school, later became a member of the Diplomatic Service and subsequently found myself spending the past 20 years at Buckingham Palace, it seemed appropriate to use this opportunity to make my maiden speech in a debate that brings together the services, diplomacy and the constitution.
At first sight, we seem to be entering a pretty esoteric corner of our constitution. However, as many before me have said, these are vital issues. At a time when there appears to be a worrying decline in the level of engagement between many in this country and the political process, it is surely right to look for ways in which the Executive can be made more accountable to Parliament and so make the Government less remote from people.
That said, we should always approach constitutional change with caution, precisely because our constitution has evolved over the centuries rather than being the careful construct of constitutional lawyers. The law of unintended consequences, to which the noble and learned Lord, Lord Mayhew, referred, seems to apply all the more. Moreover, in a constitution which allows for change through evolving convention, better governance may not always be best served by more statutes, more rules and more regulations; nor is it necessarily right to limit flexibility in the name of greater clarity.
On the first issue of war-making powers, it is difficult to disagree with the House of Lords Constitution Committee report which proposed that the formal role of Parliament in this area should be strengthened, both in the interests of greater accountability and ensuring that those committed to armed conflict know they have the support of Parliament. I could not possibly state that with more eloquence than the noble and gallant Lord, Lord Bramall. But this should be by way of the general acceptance of a new convention rather than by statute. I wonder whether there is a danger, if there is any strict statutory provision, that this could lead to uncertainty over the legality of the actions of our service men and women. This would surely put them in an impossible position and be unacceptable.
Moreover, flexibility and discretion are required for the many reasons which the noble and gallant Lord, Lord Guthrie, and others have pointed out. We do not want to be in a situation where parliamentary involvement might for some reason delay or distort decisions in an emergency; or constrain the Executive when great secrecy or surprise is required; or when intelligence could be compromised; or where the precise nature of the deployment might change. Such discretion and flexibility would be more appropriately provided in a convention which allows that flexibility, particularly on the timing of the debate and the timing of parliamentary involvement.
It would nevertheless be worth giving further thought to the extent of any convention which finds acceptance. For example, when I was listening to the debate of the noble Lord, Lord Fowler, last week about the call for an inquiry into the lessons learnt from Iraq, I found myself wondering whether a convention setting out the obligations on the Executive at the start of an armed conflict might also encompass an obligation for a report to Parliament on lessons learnt after an armed conflict.
Turning briefly to the treaty-making powers, parliamentary involvement in the ratification of treaties is already the subject of a convention, the Ponsonby rule. The question is whether this should be put on a statutory footing. While I can see the attractions of codifying the existing conventions for greater clarity, I wonder whether in practice it is worth trying to replace an existing convention which has evolved successfully over time and appears to be working satisfactorily.
Rather than going down any statutory route, the alternative approach, already mentioned today, to strengthening Parliament’s involvement might lie with the suggestion included in the Royal Commission report on the reform of the House of Lords that treaty scrutiny might be the task of a House of Lords Select Committee. This would be in line with much of the important work done by this House.
In conclusion, I want to pick up the point about the importance of the work of this House. I spoke earlier about the warmth and friendliness I have found here. I also pay tribute to the wealth of knowledge, expertise and experience that surrounds me on every side; the civility with which our affairs are conducted; and, above all, the unique part this House plays in the governance of our nation, often unheralded and unreported but no less essential for that. I very much look forward to trying to contribute to that work in the future.
My Lords, on behalf of the whole House I thank the noble Lord, Lord Janvrin, for the excellence of his maiden speech. As he himself indicated, it was most appropriate that with his experience and background he should speak on today’s subject, which impinges on the royal prerogative. Not only has he had a distinguished career in the Royal Navy, he was in the diplomatic service, serving, I believe, in NATO and in New Delhi. Then in 1987 he joined Her Majesty’s service for the first time as press secretary—not the easiest of jobs, I am sure. He went on from there and latterly has been the Principal Private Secretary to Her Majesty the Queen. We have been privileged to listen to an excellent, insightful and knowledgeable speech. I am sure the whole House will wish to hear more from him frequently in future. I would add only that I hope he will not feel unduly inhibited by the conventions of official secrets and rules of confidence, but I am sure he knows how to deal with such matters and yet be a valued Member of this House. We thank him for his speech.
In the debate on the gracious Speech, I ventured in a few sentences to welcome the consultation papers and the Government’s view with regard to committing our Armed Forces to conflict outside these shores. I welcomed the notion that Parliament should be involved. However, I raised a number of queries. If I may dare to say so, as they were not answered on that occasion, I shall put them again very briefly. What should be the consequences of a Government not acting with parliamentary approval given either in advance or retrospectively? What information must be given to Parliament to enable it to perform its functions? It is clearly of no use for Parliament to have functions without having information put in front of it that it can sensibly and usefully debate. Those questions are still important.
Having thought about the matter since then, I believe the time is ripe to put into statute the principle that parliamentary authority should be sought before our Armed Forces are sent into armed conflict, except in cases made out to Parliament by the Government that there is a situation of clear emergency. The value of establishing such a general principle is evident from the seriously mistaken Suez adventure of 1956. A leading constitutional expert, the late Professor Robert Houston, said that,
“if the conduct of foreign affairs and the disposition of the armed forces of the Crown had not been included within the prerogative, the Cabinet might have hesitated in 1956 before embarking on the Suez adventure”.
Eighty years ago, in the aftermath of the massive slaughter of World War 1, President Woodrow Wilson said that wars are more than anything the result of secret machinations of statesmen. Wars are much less likely to be entered into by a properly functioning democracy because young men cannot be asked to die for reasons that are not made public. If the Government are accountable to Parliament for their decision to go to war—I am talking about “wars of choice”, to use the phrase uttered earlier today—and have to explain themselves to Parliament, the media and the public, the Government’s reasons will need to be pretty convincing.
I shall say a little more on the subject of treaties, although I followed and agree with the comments of the noble Baroness, Lady Williams of Crosby, and the noble Lord, Lord Goodhart. If I may make a party-political point, it is most appropriate that a Labour Government should wish to extend the principle of the Ponsonby rule, which of course was named after the Under-Secretary for Foreign Affairs in the first Labour Government of 1924. His great-grandson, my noble friend Lord Ponsonby of Shulbrede, may not be in his place today, but he is a valued colleague. If that has been a useful rule, in my view it has not gone quite far enough. If Parliament has insisted on a debate and it has seen the Government’s explanatory memoranda that are now so often produced in relation to treaties, it does not have any real say in whether the treaty is to be ratified. I venture to say, although this may be even less popular with my Front Bench than the remark I have just made, that unless the Government have made out a special case—unless there is a certificate for the Secretary of State, or something of that sort—no treaty should be ratified unless both Houses of Parliament have approved it. I say both Houses because of the point that is frequently made—that in this House there is a lot of expertise. We are seeing it today, in defence and foreign affairs matters. It seems somewhat perverse to say that all that is needed is the approval of the House of Commons.
My Lords, today’s debate on the Government’s consultation paper, Limiting Executive Powers, is an important stage in remedying what has become an increasingly indefensible anomaly in our constitutional practice whereby one of the world’s oldest parliamentary democracies leaves matters of great significance, such as decisions on war, peace and treaty-making, to be taken under the royal prerogative, perhaps more accurately described as on the say-so of the Government of the day.
The consultation paper itself provides a good deal of material for thought, although it does not cover adequately all the complexities of the subject matters we are discussing. Much still remains to be teased out before a sound basis for proceeding to parliamentary action can be said to exist. I therefore greatly welcome the initiative taken by my noble and gallant friend Lord Guthrie of Craigiebank for this debate on the consultation paper. It is a bit odd that the first debate should be taking place in Cross-Bench time and not at the initiative of the Government and in their own time, but it is none the less welcome for that.
I intend to limit my remarks on this occasion to the issue of war powers, by far the more important of the two fields covered by the consultation paper and the one in which the most significant changes to current practice are proposed. As I said at the outset, it would seem hard to gainsay the case for giving Parliament a determining voice on this matter, but it would be unwise to think that this will be a simple open or shut decision; it simply bristles with complexities, of which some can be solved in advance but some will find responses only when new procedures are put into practice. Among the latter, I would identify the need for our armed forces to feel that they have the full legitimacy of parliamentary support when they are asked to risk their lives and those of others. Unfortunately, the nature of our highly adversarial parliamentary system and the fact that a majority in Parliament often does not represent anything like a majority of the electorate will make that objective pretty hard to achieve in practice.
A second major complexity is the question of the information basis on which Parliament will reach its decisions. It is fashionable to claim that if we had known in March 2003 what we now know about Iraq’s weapons of mass destruction—or, rather, the lack of them—the large majority supporting military action would have been reversed. That cannot in fact be proved, but we should have no illusions; these decisions will always have to be taken on the basis of incomplete and imperfect information. Adversaries, particularly if they are authoritarian or totalitarian regimes, do not willingly reveal their assets or their future intentions. Intelligence is one way of remedying that lack of knowledge, but it never provides the whole picture.
I turn to areas that I do not believe have yet been adequately covered—indeed, barely covered at all—in the consultation paper that we are debating. In so doing, I declare a non-pecuniary interest as chair of the board of the United Nations Association of Great Britain and Northern Ireland, which has submitted some separate observations on the consultation paper. These areas arise as a result of our membership of a number of international organisations and alliances, which are committed to taking action in common to achieve collective security. The UN and NATO are the most significant of these, although in future the European Union may, too, come to play a bigger role in that field.
Already, we can see how national decision-making on collective action by both NATO and the UN can impose serious delays and constraints on effective action by those organisations. That is the case with the caveats exercised by certain NATO members in Afghanistan, and over any number of NATO peacekeeping operations, most topically Darfur. If, as I believe, it is in our national interest to make those organisations more effective, not less, we are going to need to proceed with some care so as to ensure that the parliamentary changes we introduce do not cut across their interest and undermine it.
The case of UN peacekeeping operations is likely to be particularly complex. In many of those, it is simply not possible to say in advance with any certainty whether such an operation is going to take place with a full ceasefire in operation, or whether it might, at an indeterminate later stage, involve hostilities and the use of military force. On many occasions, British involvement in a particular UN peace operation will be extremely modest; a few observers, perhaps, or some logistical or specialist personnel. On which side of the parliamentary authorisation line will such examples fall? Nothing has damaged UN peacekeeping operations more in the past than the slowness and delays in deploying forces authorised by the Security Council. Remedying that, by developing a better rapid reaction capability for the UN, must surely be a high priority, otherwise the field is left open to spoilers. We will need to ensure that our national parliamentary procedures are fully consistent with that objective.
How are those UN complexities best handled? In theory, there are at least two ways in which we could proceed, and probably more. One would be to limit the scope of the parliamentary authorisation procedure so as to exclude certain scales or types of UN activity. The other would be to have what I call a light option procedure for handling such deployments. That second possibility is the one being operated in Germany; it is described on pages 66 and 67 of the consultation paper. Under it, the Government inform the key parliamentary chairmen of action that they plan to take, but no full parliamentary authorisation procedure is required.
I do not believe that it makes sense to try to settle the matter at this preliminary stage. What is needed urgently is some detailed consideration by the Government and further public consultation on these aspects. The bland recognition in paragraph 40 of the consultation paper that these NATO and UN complications exist, without the slightest indication of how to address them, will simply not suffice. Can the Minister give some indication of how the Government intend to respond on those matters?
In reviewing this consultation paper in this House, the matter of the powers or role of your Lordships’ House arises. My views there coincide precisely with those of my noble and gallant friend Lord Guthrie of Craigiebank, who said that this House should have an opportunity to debate the matter in government time before the other place takes the decision on the matter. That is how it should be, but the decision should not be for this House.
I conclude as I began by indicating my broad support for the Government’s intention, in bringing forward this consultation paper, to move our constitutional practice on to a sounder basis where Parliament plays a full and decisive role. In so doing, however, let us not forget the virtues of pragmatism and flexibility or fall victim to the law of unintended consequences that the noble and learned Lord, Lord Mayhew, referred to so eloquently in his contribution.
My Lords, I start by declaring an interest as the non-executive chairman of Aegis, a private security company. I, too, thank my noble and gallant friend Lord Guthrie for introducing an extremely important debate.
As the consultation paper makes clear, the decision to send armed forces into conflict is one of the most important that a Government can be asked to make. It is important to remember, as the noble and gallant Lord, Lord Guthrie, reminded us, that few armed conflicts turn out as expected. They usually last longer, take unforeseen directions and demand greater sacrifice. Therefore, given the seriousness of the decision to commit our Armed Forces to conflict, it is clearly right that the House of Commons should be involved. The key question, for me, is: how involved?
Different phrases have been used in different documents about this issue. The Prime Minister said, in July 2007, that
“the Government will now consult on a resolution to guarantee that on the grave issue of peace and war … this House of Commons … will make the decision”.—[Official Report, Commons, 3/7/07; col. 816.]
We need clearer definition of what we want this new convention—and I hope that it will be a convention—to say. That grave issue of peace and war is rather different to some people talking about sending armed forces into conflict, or the words used by the report of the House of Lords Select Committee on the Constitution, called Waging War: Parliament’s Role and Responsibility.
I rather agree with the noble Lord, Lord Hannay, that we must be careful not to be too restrictive on this, because if we look, for example, at the operation in Sierra Leone, and its need not only for urgency but for secrecy, it would have been difficult for Parliament to be consulted in that instance. As I have said, I am certainly much more in favour of a convention than a statutory requirement, which could be too restrictive. Let me also make it quite clear that I am strongly in favour of Parliament being involved to debate any significant military deployment.
As noble Lords have said, in preparing for war and complex military operations it is important for the Armed Forces to have clear decisions, and to get them in a timely manner. Whatever we put in place will remain of paramount importance. That preparation is normally fraught with difficulties, and it needs to be made in good time. If there is any delay in getting the support of Parliament for the Armed Forces it is bound to affect not only planning but, much more importantly, their morale. I need hardly add that it would be fatal for Parliament to dabble in the planning detail, and for the Executive to have to refer back continually for guidance on key issues.
I noted that in its report, Waging War, the House of Lords Select Committee on the Constitution stated clearly on Parliament’s role and responsibility that,
“our enquiry should not extend to any aspect of operational decision-making once force has been deployed”.
Later, it went on to say, in what I read as a major caveat, that,
“major instances of ‘mission creep’ or anything that represented a significant change, qualitative or quantitative, to an existing deployment would … be treated as a new proposal”.
It quoted Afghanistan as a possible example. I would be very cautious about allowing Parliament to dabble in that sort of military planning. As I mentioned earlier, each operational situation, no matter how careful one’s planning, writes its own individual script, and it usually gets worse before its gets better. We need to be careful, for example in Afghanistan, not to dabble in that detail.
However, I recognise that it is enormously important that soldiers, sailors and airmen deployed on military operations feel that they have the support of the nation behind them. When the noble and gallant Lord, Lord Guthrie, and I visited troops in the desert in Iraq just before the first Iraq war, it was interesting how many of them asked us: “The nation is behind us, isn’t it?”. It is terribly important that we never forget that.
The report of the House of Lords Select Committee on the Constitution suggested the excellent idea of a joint parliamentary committee to assume strategic oversight of international defence and foreign policy. It deserves serious consideration. I realise that such a committee could not resolve the underlying issue of parliamentary sovereignty over the deployment of military power, but it could play an important role in educating both Houses of Parliament about the implications of the use of military force. It is a sine qua non that any important issue is considered by all Cabinet Ministers and not just by the Prime Minister and a few key advisers. The commitment of Armed Forces on operations is certainly such an issue.
A key part of that process—it may be teaching my grandmother to suck eggs—will be the proper preparation of papers by departments such as the Foreign Office, the Ministry of Defence, the Treasury and others. For any dangerous complex military operation, the Cabinet should be formally briefed by the Ministry of Defence, the Foreign Office and the Chiefs of Staff. We know that, at times, that has not happened in the past. I would not be opposed to key opposition party members being included in those war Cabinet briefings. I need hardly add that, in presenting the facts to the nation, we should not try to produce dossiers that are “improved” to justify the case of war.
When I was in the Ministry of Defence, I often felt that it would have encouraged the MoD and the Armed Forces if an annual briefing were given by the Cabinet about the Armed Forces, their capabilities, their training, their strengths and weaknesses, and what it would mean if they were committed to operations, because ever fewer people have a real understanding about what the commitment of Armed Forces to conflict entails.
My Lords, I join other noble Lords in congratulating the noble and gallant Lord, Lord Guthrie, on the authoritative and eloquent way in which he raised this important question. I reiterate our thanks to him. Reference has been made by a number of noble Lords to the report of your Lordships’ Select Committee on the Constitution, Waging War: Parliament’s Role and Responsibility. The committee had the report debated last year. I am glad to see that three other members of the committee, the noble and learned Lord, Lord Morris of Aberavon, the noble Lord, Lord Rowlands, and the noble Viscount, Lord Bledisloe, are participating in this debate.
The committee welcomes the consultation paper, War Powers and Treaties, and is grateful for its recognition of the conclusions of the report produced under the chairmanship of my predecessor, the noble Lord, Lord Holme of Cheltenham. The paper takes account of a number of the key recommendations. We welcome, first, the Government’s commitment to investigate ways of,
“seeking to give Parliament the final say in decisions to commit UK troops to armed conflict overseas”.
It is a central point. I trust that the Government, in framing a resolution for the House of Commons, will find a way to take account of the concerns expressed by the noble and gallant Lord, Lord Craig of Radley, because they are extremely serious and were considered in detail by the committee. The essential flexibility of the armed services to which the noble and gallant Lord gave reference, and considerations of security and surprise, must be maintained. The essential proposition seems now to have the assent of noble Lords on all sides of the House.
Secondly, the committee welcomes the Government’s view that it is “entirely appropriate” that the House of Lords should have a role in the process. I agree with the noble and gallant Lord, Lord Guthrie, that any debate in this place should precede that in the Commons; it is clear that immense expertise is here. It would be a problem if this House took a different view from that of the other place. It would be particularly acute if, at some future date, we had a wholly or predominantly elected House of Lords—but that argument is for another day.
Thirdly, we welcome the commitment to ensure that service personnel are protected from criminal prosecution for actions taken in good faith. Fourthly, we welcome the Government’s recognition that the committee’s favoured option of a parliamentary convention,
“has the advantages of being more flexible and adaptable”.
We welcomed the Lord Chancellor’s comment in his evidence to the committee in October that,
“the balance of opinion is in favour of the conventional approach”.
However, the committee is disappointed at the Government’s preference for a requirement merely to inform Parliament, rather than to seek retrospective approval for deployment, in cases where forces have been deployed without prior parliamentary approval for reasons of urgency or national security. The committee’s preferred option is that if, for reasons of emergency or security, prior application for parliamentary approval is impossible,
“the Government should provide retrospective information within seven days of [the deployment's] commencement or as soon as it is feasible”,
at which point, parliamentary approval should be sought.
The committee is concerned also at the Government’s proposal that,
“Parliament's involvement should be limited to approving the initial engagement”.
Your Lordships’ committee would prefer that, in addition to keeping Parliament informed of the progress of deployments, the Government should be required to seek a renewal of parliamentary approval if a deployment’s nature or objectives alter significantly. Such a requirement is vital to ensure that mission creep does not become a problem. It is possible to argue that the House of Commons can do anything that it decides. There was a large number of debates during the Falklands conflict; there have been a large number of debates about Iraq; but it is argued that this would be far better spelt out in a convention agreed by the Government in Parliament.
There is currently no agreed definition in the Geneva Convention of the term, “armed conflict”. It will therefore be necessary for the Government to look elsewhere for a meaningful definition, as we all know that there has been no declaration of war by this country since that on Thailand in the Second World War. I am strongly convinced that it will be possible for the Government and Parliament to agree a resolution that enshrines an appropriate convention reflecting the concerns that have been expressed today. The military covenant, which has been so much discussed in recent months, demands no less.
My Lords, I add my thanks to those expressed to the noble and gallant Lord, Lord Guthrie of Craigiebank, for enabling us to have this opportunity to debate the Government’s consultation paper. I welcome the consultation paper. It is a very useful basis on which to pursue the discussion of the very important matters it raises. I thank and congratulate my noble friend Lord Janvrin on his maiden speech which demonstrated his knowledge, experience and wisdom. We thank him very much and look forward to hearing from him again frequently.
Committing the armed services to conflict action is the supreme example of the exercise of Executive authority. The ultimate decision has to be that of the Government, the Prime Minister and his or—your Lordships will understand why I add this—her colleagues. The political reality is that any Government faced with having to take the decision will want, if possible, to be reasonably confident that they have, or believe that they can secure, a sufficient measure of parliamentary and public support. Because of the circumstances in which the need for such a decision arises, it is very difficult, if not impossible, to be prescriptive and specific enough to cover every possible circumstance, and it would be a mistake to try. It is quite likely that the need for a decision could arise in circumstances which had not, and could not have, been foreseen.
So whatever provision is to be made to involve Parliament and the public more closely in the decision, whether before or after the event, needs in my view to be general and not too specific, and is best provided for—as many noble Lords have said—by agreed convention and not by statute, which would almost inevitably provide too rigid a framework. If Governments are to be accountable to Parliament—as, of course, they are for the decisions in this field, as in others—it is equally important that Parliament should be as well informed as possible. Attention should be given to that need and how it can best be fulfilled without prejudicing the security, intelligence and safety of our Armed Forces.
It seems to me that for many of the treaties entered into by Governments, the Ponsonby rules are both acceptable and sufficient because they are very technical and not controversial. However, some treaties—not necessarily all that small in number but great in importance—will increasingly merit further thought, as the noble Baroness, Lady Williams of Crosby, emphasised; for instance, treaties which commit the United Kingdom to membership of international organisations or treaties which have global implications such as climate change measures. This globalisation of affairs means that some of the treaties into which this country enters will become increasingly important.
Again, the decision to commit to a treaty is essentially one of executive power. But if it is a treaty of major importance, not only Government but Parliament and the interested public will see it coming and there will be opportunities for parliamentary and public discussion without that having to be specifically provided for in advance. Again, the political reality is that Governments will need to be reasonably confident that they can secure a sufficient measure of parliamentary support. I believe that public input in our system should normally be mediated through Parliament. Referendums tend to be unsatisfactory means of expressing public opinion for a number of reasons, including the difficulty of defining the question and of preventing a referendum from straying into areas where voters express views on matters not directly related to the question on the paper.
I very much respect the Government’s decision to open these subjects up for consultation. But the more one seeks to arrange and manage these issues, the more it seems to me that we need to stick to three main conclusions. First, we should not lose sight of the impact of political reality on what happens—the force of events which will determine what the Government do and their need for parliamentary and political support. Secondly, as was fairly generally agreed this afternoon, whatever provision we make should be general and not specific. Thirdly, we should rely on convention, including, of course, new conventions if that seems desirable, and avoid the over-rigid framework of statutory prescription.
My Lords, I, too, express gratitude to the noble and gallant Lord, Lord Guthrie, for initiating this debate and for his wise and measured words. I had the privilege of associating with him and those under his command in the Welsh Guards for a long time, and more recently when he was Chief of the Defence Staff and I was Attorney-General—and always to my benefit.
The noble and learned Lord, Lord Mayhew, myself and others were witnesses to this House’s constitutional affairs committee in 2006. The noble Lord, Lord Holme of Cheltenham, and his committee graciously got the maximum out of us. There were two questions. First, was there a need for change? Secondly, if so, how was that to be effected? It was a particular pleasure to me that your Lordships' committee rejected statutory control of the deployment of British forces outside the UK into armed conflict and preferred a convention that parliamentary approval should be sought. I fear that the response of the Government then was very negative in the persons of three Ministers who preferred the status quo. I very much welcome the consultative paper, which echoes the attitude of the Prime Minister as far back as January 2006 when he was Chancellor of the Exchequer, and which was quite different from that of his colleagues who gave evidence. The consultative paper echoes the Select Committee’s observations.
The royal prerogative is a misnomer. It has been progressively reduced since 1688. In reality it is the Executive prerogative, exercised by the Prime Minister with or without consultation with his Cabinet. It was Churchill who said it was no longer a royal prerogative, but the privilege of the people. That brings me to the question of how the privilege should now be controlled. My immediate answer as a democrat is that it should be by the elected House of Commons. The House of Lords should have an input and the House of Commons would be well advised to consider the contribution of this House. But at the end of the day there should be no uncertain sound of the trumpet, nor two tunes played at the same time. The body that controls supply should democratically control the decision-taking. Ministers, civil servants and the Armed Forces are enjoined to obey the rule of law, both domestic and international. It is written into their rules. Now there are additional hazards in the form of the International Criminal Court.
As Attorney-General I had to agree rules of engagement and, in the case of Kosovo on almost every day for about 68 days, to agree each significant military target. We try hard, and succeed, in complying with the law but we can be challenged, and we were challenged with nine other defendants before the international court at The Hague, where I had to appear for the United Kingdom to challenge the case against the legality of the bombing in Kosovo.
The noble and gallant Lord, Lord Bramall—Field Marshal Bramall—as the noble and learned Lord, Lord Mayhew, has reminded us, had three requirements: the support of the country, the support of Parliament and assurance for the forces that it was legal. There was unanimity before the committee that there should be no interference by Parliament on operational matters once commenced. I agree. When I was asked to give evidence, I started off with a blank sheet of paper, grappling with an issue that I had not previously given much thought to. After reading all the available material, I came to the conclusion as a democrat, a former Attorney-General and a former Defence Minister a long time ago that the status quo allowing unfettered control to the Executive without democratic involvement was outdated and crying out for reform.
In what circumstances should Parliament be involved? The concept of a formal declaration of war is outdated for a host of legal reasons. We last went to war—as we were reminded by the noble Lord, Lord Goodlad—in 1942 against Siam. The modern version is armed conflict. The Geneva conventions and protocol are not very helpful in defining it, but we all have some idea what it is when we see it. We cannot cater for all eventualities. A convention should cater for most eventualities and should stand the test of time. The consultative paper prefers a convention to statutory control. It states, and I cannot improve on this:
“A Parliamentary convention in the form of a resolution has the advantages of being more flexible and adaptable. The interpretation of the resolution would lie clearly in the hands of Parliament rather than the courts. It could be framed in more general terms than is possible with statute. It is therefore less likely to interfere with the operational freedoms and responsibilities of commanders in the field”.
The Select Committee agreed that a convention is better able to anticipate what might happen in 20, 30 or 40 years’ time. In my view, the more generally it is drafted the better.
There remains the problem when troops have to be committed urgently and secretly. I believe that the Government should then, at the earliest practical opportunity, seek Parliament’s approval. Informing Parliament is not enough. There are obvious difficulties. The egg cannot be unscrambled. Even if what has been done is perfectly legal, if there is overwhelming dissent, it would hardly be feasible for the Government to continue with it, or in reality to continue in office at all. We are reminded of the realpolitik of what happened in the Norway debate. This consultative paper augurs well for the future.
My Lords, it is a pleasure to take part in this debate initiated by my noble and gallant friend Lord Guthrie. The document giving the agenda for the debate seems to be well written, although as a pedant of many years’ standing I cannot avoid noting that the Secretary of State for Defence and for Scotland on page 8 spells his name in two ways—once with an “e” at the end and once without. Can we assume that the “e”-less Brown is for the Scots, or the Picts perhaps? Paragraph 44 refers to the fact that this country last declared war in 1942. The noble and learned Lord, Lord Morris, and the noble Lord, Lord Goodlad, told us that the declaration was against Thailand but the Library assured me it was against Romania. That is of no great importance now, except to note that a formal declaration of war has not been made since the Second World War.
The proposal in the consultation document argues that we should put on a formal basis the discussions with Parliament which, as the excellent table on page 21 explains, have almost always happened informally and effectively. The Government also suggest that a discussion with Parliament should be limited to,
“a vote in the Commons alone”,
as mentioned on page 23, paragraph 37, so there are two important matters to be discussed.
On the first matter of the legal requirement, like the noble and gallant Lord, Lord Guthrie, and many others, I think we would be better served by a convention. Parliament depends for its good working on convention as much as on legal requirements. No two international threats are quite the same. Iraq was different from Suez, even though both were put forward as issues for international intervention on what my noble and gallant friend Lord Bramall rightly described as false premises. I do not see that a legal requirement to consult Parliament would remove the risk of false premises but I could be convinced of the benefit of a legal requirement if it were successfully argued that the armed services desired or needed it.
The second matter is the consultation of your Lordships’ House. The Government think this is unnecessary but I think that view is mistaken. The other place is still known for its great debates but on important issues, as we in this House know only too well, it is usually easy enough for the Government of the day to secure a majority. The great change experienced in the other place in the last century has been the lamentable vast increase in the number of members of the Government who are Members of that other place—98 last week before the reshuffle. There also are about 50 Parliamentary Private Secretaries and I dare say at least another 50 Members of Parliament are hoping to catch the Whip’s eye so that they might one day become Parliamentary Private Secretaries themselves. The Government’s strength is perhaps 200. With that number it must be always easy for good Whips to secure good majorities. One subject many of us would like to see treated in the context of a future discussion on the governance of Britain would be the reform of the other place. The noble Lord, Lord Anderson, implied that that would be desirable, perhaps by cutting the number of Members, as was once suggested by a distinguished Labour Foreign Secretary, the late Mr Anthony Crosland.
It is also worth mentioning that this House has one or two important residual powers. For example, we are legally obliged to approve any plan by the other place to extend the life of a Parliament, as happened in 1939. Because the other place is not—and I hope this remark is in order—in an especially independent stage of its history, there would be a great benefit to requiring that this House be always consulted on matters of war and peace. It is generally admitted that this House is in rather good shape and always has had among its Members persons of military experience. Let us hope that whatever reforms are afoot, we will always have them. Our noble and gallant friends in this House are in a strong position in our legislature, considering that there are few Members of the other place with military experience, as was mentioned by the noble Lord, Lord Marlesford, in a fine speech in this House on 22 November.
If there is to be a legal requirement, my preference would be for the constitutional reform Bill introduced by the noble Lord, Lord Lester of Herne Hill, in January 2006, which is described on page 20 of the consultative document, whereby, unless there is overwhelming urgency, the Government would before an international armed conflict require backing from a resolution in both Houses of Parliament. That is, in fact, close to the present position, for there was an important debate on Iraq in this House—without a vote, it is true—on 18 March 2003, two days before the other place voted on 20 March.
My Lords, I congratulate the noble and gallant Lord on initiating this important debate. He and I have served and are serving on a number of bodies together and I have good reason from time to time to be grateful for his judgment and wisdom. However, I have some hesitation in speaking as my military experience was as a subaltern doing my national service more than 50 years ago.
This was during the Suez crisis and it has already been mentioned that there is an echo from that time in some of the issues of today. Since then I served in the war Cabinet during the first Gulf conflict, which gave me some practical experience in these matters. It is that experience as a member of a war Cabinet that emboldens me to say something. I have seen a Prime Minister and her senior colleagues faced with some of these major issues.
With that in mind, I have read all the statutory options set out in the Government’s consultation paper and my feeling is that each of them has difficulties. I would not want procedural matters to get in the way of effective decision-making in this difficult area. My view is that the Government of the day are the Executive with all the information and intelligence, and the Government have to make the decisions with, at times, awesome consequences. I would accept a convention, but in reality that is practically what we have now. No Government worth their salt would attempt a war without seeking to take Parliament along with them in whatever way seemed most effective.
I very much agreed with the evidence that the noble and learned Lord, Lord Falconer, gave to your Lordships’ Constitution Committee some time ago, when he emphasised that Governments decide and Parliament approves, but that the arrangements were best settled on a case-by-case basis. I am not sure that those are the views of the current Government, but in my view no Government could stay in office if they sought to prosecute a war without the support of Parliament. I cannot conceive of a Minister or a Government staying in office for a single day without the support of the House of Commons. My long experience of the usual channels has shown me to what lengths a Government will go both publicly and privately to maintain understanding and support for their policies in this area. Obviously I shall not reveal examples of my experience of where that was a very important part of the way that the Government pursued their interests—making sure that they had the maximum support that they could get, because that is key for a successful operation. So the heart of my argument in this respect is: the House of Commons has either to back the Government or sack them. No other option is worthwhile in the end.
Turning to the other half of the consultation paper, the role of Parliament in relation to treaties should be more significant. Of course any treaty that affects our domestic law cannot be brought into effect without legislation, but treaties themselves do not need to be approved by Parliament. Successive Governments have invited consideration under the Ponsonby rule. As a number of noble Lords have said, those arrangements are not sufficient. I am not convinced that the 21-day period provided is long enough and the Royal Commission of which I had the honour to be chairman suggested that a Select Committee of your Lordships’ House would be an ideal way for Parliament to scrutinise treaties and to draw its attention to matters of concern and importance, so that if necessary debates and votes could take place before ratification. The committee has not been set up and, as the noble Baroness, Lady Williams, indicated, a number of your Lordships know that the Liaison Committee has on more than one occasion turned such a proposal down. This is not the moment, nor am I the person, to question that, but such a committee should have a significant place in a reformed House of Lords.
I would not expect the Select Committee to have special powers, but the sort of expertise that this House can command would make it of great value to Parliament as a whole. I see no great advantage in setting up the committee in a bureaucratic way and thus would favour a convention as the best way forward. If for any reason the Government of the day failed to honour that convention or ignored any vote in the House of Commons, Parliament has the remedy—it should sack the Government. That applies to both the issues we are considering. Parliament cannot have its cake and eat it. Governments need the support of Parliament to stay in office. What they do not need are lap dogs barking at their ankles but refusing to bite.
My Lords, I, too, am grateful to my noble and gallant friend Lord Guthrie for initiating this debate because, not least as a result of the Select Committee report and the response that it has received from the Government, a number of important issues that have been discussed clearly remain unresolved.
In today’s changing world, with its complex and far less predictable security environment, these matters need to be considered further. I am mindful that when I received my national service commission in 1951 we were required to study a—then—War Office publication entitled, The Conduct of War. Not surprisingly, after two world wars in the previous 37 years, that document tended to focus on armed conflict between nations and such things as the Geneva conventions, the United Nations charter and Article 5 of the Washington treaty which established NATO. All of those determined our legal approach to the initiation and conduct of war.
Today our security has to be achieved in a far less predictable environment, particularly with the growing risks that have arisen from state-sponsored and other sources of international terrorism. Under these circumstances, it is becoming less straightforward to define “war” and “armed conflict”, and even the identification of our “enemies” can be far from certain in operational environments such as Iraq and even in some parts of Afghanistan.
These changes have been further apparent in the approval of operations by the United Nations which have ranged from humanitarian aid, through peacekeeping and peace enforcement to fully fledged armed conflict. There is always the possibility that after we have committed our Armed Forces to a particular operation, it will escalate from one category to another for which different objectives, capabilities and rules of engagement will be required. In addition—as has already been mentioned—in operations such as the rescue of hostages in Sierra Leone, absolute security and surprise are needed, together with the authority at the outset to use the force necessary in order to achieve success in the face of uncertainties and risks that cannot prudently be debated, or even revealed, before such operations are launched. The Select Committee emphasised that the Government, in seeking parliamentary approval, should define the military objectives of an operation. This is essential if it is to be effectively planned and resourced, though some objectives may have to be protected initially for security reasons.
There is a wider dimension to this definition of objectives that also needs to be addressed at the outset if such operations are to come to a satisfactory conclusion. Military operations are a means to an end, not an end in themselves. It therefore behoves Governments to address at the outset the post-military phase of such operations, covering all other objectives—with the provision of adequate resources to achieve them, if necessary on a wider international basis, in order to rebuild the country or the society concerned. Several of us in this House asked that specific question about Iraq before our forces were committed in 2003. We received no adequate response and have, since then, seen all too clearly the consequences of that serious omission. Nor, in seeking to redefine our war-making powers, should we forget that in coalition operations, other nations can each have their own legal basis for organising such deployments. In terms of timescales and security, these can be difficult to reconcile with our own national procedures without undermining the effectiveness of the whole operation. As chairman of the NATO Military Committee when NATO was preparing to go into Bosnia and take over from the UN, I confirm what has already been said—that many other nations admired the straightforwardness and speed with which our decisions were taken.
None of what I have been saying is intended to be negative about the review of war-making powers. I understand how the events in 2003, resulting in the invasion of Iraq, led to relevant concerns. But in today’s less-clear-cut security environment, this can be an immensely complicated matter that needs to be considered further before, for example, we abandon completely the royal prerogative, or something equivalent to it. Nor, I believe, in this review—as again has been referred to—should we forget the effect of such war-making procedures on our Armed Forces. Having accepted the unique commitment of going whenever and wherever they are directed and, if necessary, placing themselves in harm’s way, they need to believe that these important issues have been adequately addressed, without undermining their security, and that, above all, the uniquely demanding tasks to which they are committed are legal and have the support and understanding of the population.
In essence, I support the need for greater clarity and accountability in the use of our war-making powers. My concern is how this can be achieved in practice, in an open and unclassified debate in the other place and possibly here, without putting at additional risk the security and even the eventual outcome of some of the intended operations.
My Lords, about 50 years ago I heard, in the examination schools in Oxford, Alan Taylor give his Ford lectures on The Trouble Makers: Dissent over Foreign Policy, 1792-1939, from Fox to the Left Book Club. The underlying theme of his lectures was the belief that ultimately the dissenters were always right and their views were ultimately confirmed. So it was to prove, I believe, over Suez and also over Iraq. Now it has been endorsed admirably—and I congratulate them—by the Government of Gordon Brown. They restate in their consultative document what the Union of Democratic Control, including the good Lord Ponsonby, stated in 1914—that no treaty arrangement or undertaking should be entered into without the sanction of Parliament, and that there should be democratic control over the war power. This excellent consultation paper carries the support not only of Gordon Brown but, more indirectly, of David Cameron and Mr Nick Clegg—all providing a consensus in favour of old radicalism. Cobden, Bright, Lloyd George, Keir Hardie and Nye Bevan, you should be living at this hour.
The present situation is an undemocratic absurdity. The royal prerogative is a symbol of the fact that the people of this country are not citizens—they do not have an organic relationship with the process of supreme decision-making that, for example, the Americans or, in some respects, the French do. Since time is limited, I do not want to say anything particularly about treaty-making powers. We have heard, notably from the noble Baroness, Lady Williams, and the noble Lord, Lord Goodhart, how the royal prerogative can be effectively nullified in relation to treaties and that, for all their other merits, the rules of Lord Ponsonby are not significantly robust in this connection. But above all, there is the prerogative of the war power. This is the supreme area where citizenship should be exercised. It is extraordinary that the procedures have altered hardly at all over the centuries—nor would they ever, frankly, if some views expressed in this admirable debate were accepted. There happened to be a vote over Iraq, but that was entirely due to the fortuitous influence of the late Robin Cook, and is not a binding convention.
The Government consultative paper considers how democratic control could or should be exercised through legislation, through resolution and through a more general convention. It is a very helpful document that sets out the principles clearly. Some things seem clear. I think that Parliament should have an automatic right to pass judgment on any deployment of troops overseas, so that we do not get into matters of semantics—whether it is a war, whether it is “armed conflict” or whether, as we were told in 1956, the armed conflict was actually a “police action”. It should be a standard and statutory procedure. If there is armed conflict, Parliament should automatically be recalled if there is a recess—as it was not, for example, after the attack on the Lebanon in 2006. There should automatically be regular reports on military action to Parliament, in case there is what has been called mission creep. Parliament should have the same rights as the Government to call upon legal advice to consider the legal aspects of military action. After all, the Government do this—the Attorney-General is not commonly an expert in international law and he—or perhaps she—calls on legal advice, so Parliament should do so. This would also ensure that our conduct in any war observes the rules of war as well as human rights legislation, conventions and international law.
I firmly believe that the legal justification by the Attorney-General should be given in full to Parliament. It was not in the case of the Iraq war—it was like getting blood out of a stone, and that was one of the many regrettable features of the situation. Even worse was the situation in 1956, when the then Attorney-General, Manningham-Buller, advised that the action was unlawful, but his view was superseded and the slapdash view of Lord Kilmuir, the then Lord Chancellor, was taken instead. Manningham-Buller might have resigned, but did not, and indeed in due course became Lord Chancellor. It is important that there should be a full legal statement and if this is not observed, Parliament should simply refuse to authorise supplies.
The Constitution Committee argued against a statutory basis and called for a parliamentary convention. During a previous debate in May—unfortunately, I was abroad at the time—an extraordinarily wise and sensible observation was made by the noble Lord, Lord Norton of Louth, who said that a convention is not created but evolves over a long period. I do not think that a convention can be created. It can easily be too permissive and too vague and can easily be evaded by the Executive. Not that legislation is necessarily perfect either: we should always remember the 1973 war powers treaty in the United States, which was legislation. It has also been commonly evaded and has given undue authority to the president.
However, to be effective and meaningful, there has to be a legislative and statutory context for these matters. I should have thought that we could have a compromise between specific resolutions on particular emergencies and a broad context of legislative sanction to ensure that processes are followed and not evaded, as they have been century after century. Without Parliament’s statutory approval of war-making powers, we will not be a democracy. We should have the information and it should be in the public domain. In the era of a technological revolution, frankly Parliament should have the same rights as those held by the press—the information and media authorities. Secrecy has been the curse of our constitution and we saw it here long before the era of sofa government.
Finally, I agree that approval and sanction by Parliament would strengthen the military. It would assure them that they had the nation and the legislature behind them; it would increase trust in our legislative and political institutions; and it would ensure that never again would hundreds of thousands of British citizens, including myself, go marching in the streets of London, as they did in 2003, saying that this action is “not in our name”.
My Lords, it is indeed a privilege to be here, although I must confess to a degree of unease and trepidation in addressing this august House. I am as conscious of noble Lords’ scholarship and learning as I am of my own shortcomings.
Ever since my appointment, I have experienced a great deal of warmth and kindness from everyone, including many of your Lordships and the wonderful officers and staff of this noble House, for which I am truly grateful. I am especially grateful to my noble friends Lord Williamson and Lady D’Souza for their wisdom, advice and support, which has been most helpful and very happily received.
The discussion at present in the House is of wars and treaties, but wars, both in ancient and present times, have often been the result of a clash of faiths and beliefs. Perhaps I may suggest that a major component of the risk to our civilised lives is our intolerance of each other’s beliefs and methods of worshipping God. As we know, religion can be a force for peace or war, it can heal or hurt, and it can create or destroy on a scale unimaginable to previous generations. History has recorded enough bloodshed in the name of religion. Moses, who led his people from slavery to the brink of the promised land, gave them a choice:
“See, I have set before you Life and Death, the Blessing and the Curse. Therefore, choose Life so that you and your children may live”.
We have also seen how the absence of religion has led to wars and killing. While people have been killed in the name of God, others have killed believing that they were gods. The greatest crimes of the last century—in Stalinist Russia, Nazi Germany, Cambodia and Rwanda—are examples of great crimes committed by secular regimes.
We live and work in the United Kingdom. I must therefore, first, voice my gratitude to this country. Like many of your Lordships, I am grateful to this great country for the opportunities that we have received to fulfil our objectives and goals.
Of late, however, a shadow has been cast on our community relations. The events of 9/11 in New York in 2001 and 7 July 2005 in London, and the more recent shocking attempt at terrorism in Glasgow, brought that shadow into sharp focus. On these occasions, the killing and attempted murder of innocent people created a great conflict for Islam; a religion which sees itself as a religion of peace was associated with murder and mayhem.
I was born into the Muslim faith and brought up with the guiding principles of Islam, which I now find are in serious conflict with the activities and utterances of some of the Muslim extremists. Looking at Islam through its main reference source, the holy Koran, we see a religion completely at odds with the actions of the perpetrators of the vile acts of terrorism committed in its name. The Koran clearly instructs the believers to be tolerant and compassionate and to extend a helping hand to the sick and the infirm. It commands respect for scholars, women and minorities in any land. It also instructs Muslims to respect those of other faiths and to live with them as good neighbours in peaceful coexistence.
I beg your Lordships’ indulgence in using the platform of this noble House to reach the minds and hearts of all people in saying that, along with other faiths, the Koran forbids hurting, harming or killing an innocent person, just as it forbids the taking of one’s own life. I want the radicals and extremists in all faiths, but especially among my own co-religionists, to understand clearly that strapping oneself with explosives to kill others in an act of suicide in search of martyrdom is totally un-Islamic and against the instructions of the Koran—the holy book which all Muslims must obey. For any Muslim to ignore or question the truth of this message is like questioning the right of the sun to shine.
We in the Muslim community must oppose and resist extremists inflicting violence on society in the name of religion. We must raise our voices in protest and we must withhold, as a community, the robe of sanctity when it is sought as a cloak for violence and bloodshed, even if the perpetrators are from our own faith.
We have here in the United Kingdom a multi-religious and multi-ethnic society. Dialogue is the only way forward for addressing our differences based on mutual respect and trust for each other. It is imperative that we engage together in a continuing dialogue. Dialogue is no longer a luxury of a few well meaning individuals; it has become a necessity demanding action, and without it only catastrophe stares us in the face.
In conclusion, on a day when war is being talked about in this House, I beg noble Lords’ indulgence by mentioning peace. There is a thought which I hold in great esteem that I wish to share with your Lordships. It is from a Hindu prayer from the ancient Vedas, which, translated from its Sanskrit form, goes thus:
“May there be peace in the celestial region
May there be peace in our skies
May there be peace on our earth
May there be peace in the waters
May there be peace in the plants and forests
May that peace be mine also”.
I conclude with a prayer of my own: may God also bless you all with that peace.
My Lords, it is a very special privilege to follow the noble Lord. I have heard many maiden speeches but he brought a fundamental and important message to us all with passion, and we welcome him very much. He comes to the House with a distinguished medical career in saving lives. However, as his speech has shown today, he has much wider and more fundamental concerns about society and community. The fact that he is a trustee of Muslim-Jewish Relations at the Woolf Institute is a perfect illustration of that commitment. He is also a passionate supporter of the Commonwealth and is chairman of the Commonwealth Youth Exchange. He has already been recognised and honoured in many ways. I was particularly intrigued by the fact that he has been honoured by the Order of the Burning Spear. I hope, one of these days, that he will explain to us what that honour involves. I am sure that the House will want to hear him more during the coming months.
As we grapple with this vital issue of parliamentary accountability in war, I briefly follow my noble friend Lord Morgan into a brief historical digression. I want to draw the attention of the House to the peculiar and particular contribution that war itself has played in the development of our parliamentary processes. If we go back to the 17th century, we see that if the king or the crown could avoid war, they also avoided calling Parliaments. It was war that eventually, and fatefully, forced Charles I to summon Parliament, with all the consequences that flowed from that. His son, Charles II, governed the last four years of his life without any Parliament at all; he stayed out of war and conflict. From five years after that—1690—to the present day, this House and the other place have sat every year. That is a unique record of representation.
Why is there such a tradition of representation, meeting and scrutiny? The prolonged conflicts and war between 1690 and 1715 ensured a permanent place for Parliament as a central institution of the state—as opposed to an event, which it had been before. War has played a significant part in the way in which our parliamentary processes have evolved. It was involved in the birth of the demand for scrutiny of estimates, in the beginning of the Public Accounts Commission and, above all, in the introduction of annual Sessions, with which came debates and inquiries. There was no squeamishness in the 1690s about debating war—strategy, cost and conduct of war was debated with vehemence and passion. That was the legacy for us from that post-Revolution Parliament.
Few would now suggest—this is the reason that we are debating an alternative parliamentary mechanism—that the old fashioned methods we adopted, of controlling the Executive by controlling supply, scrutinising estimates and delving into the details of government expenditure, are a relevant means of asserting parliamentary scrutiny in relation to war. I have noticed in my parliamentary lifetime in the other place an increasing lack of interest in or concern about the details of estimates. I am one of the last veterans of the old “jumbo” estimates committee of the Commons, which at least tried to tie its inquiry to a vote. The noble Lord opposite was also a member. All that has gone. We cannot use scrutiny and control of supply as a means of keeping a check on the Executive of the day.
As a number of noble Lords have said, in recent times, the character of armed conflict, and our involvement in it, has changed. The catchphrase is “wars of choice”. Our involvement in recent conflicts has been a matter of choice. Where there is a choice, it behoves the Government of the day to justify particularly and thoroughly that decision and seek prior parliamentary approval for it. That was most forcefully expressed by the noble and gallant Lord, Lord Bramall.
The considerable practical issues have been rehearsed today, as was done in considerable detail in the report of the Constitution Committee, which I had the privilege to be a member of. I draw the attention of the House to evidence supplied by the Ministry of Defence. We could not publish it in full, but it is summarised in paragraph 27 of our report. Since 1990, there have been 60 military operations. It would have been absurd and dangerous to suggest that parliamentary approval could apply to each and every one of those operations. When members of the committee analysed those 60 operations, we saw that they flowed from a series of initial mission decisions: repelling the Iraq invasion of Kuwait; the enforcement of no-fly zones in Iraq; the coalition operations in Iraq from March 1993; our contributions to the Balkans in the UN Protection Force and the NATO-led Implementation Force; Sierra Leone; and, finally, Afghanistan.
I was in the other place when a number of those decisions were made—not for the latter two but I was certainly there for the Sierra Leone decision. Neither I nor any member of the committee really believed that if Government had had to seek prior parliamentary approval, that would in any way have jeopardised the military operations that followed. It would have given an additional degree of authority, particularly with regard to international legal obligations, legal rights and so forth; I refer in particular to the need for understanding and appreciating the legal basis of any such decision.
The principle of prior parliamentary approval is good and a good additional discipline for Government to have to go through. I disagree briefly with my noble friend Lord Morgan over his dismissal of the idea of a convention. A parliamentary convention can be created by the powerful all-party consensus that seems to be emerging as a result of discussions and debates. I believe that we will have the force of Parliament behind that. Governments will constantly err on the side of coming to Parliament for approval rather than trying to avoid it. If we established such a convention, that would involve not doing something radically new or dangerous, but restoring and renewing a degree of parliamentary accountability—our predecessors began that more than 300 years ago.
My Lords, I am grateful to the noble and gallant Lord, Lord Guthrie, for introducing this crucial debate today. I remind the House of my interest as a serving TA officer and that I served on Operation TELIC 1 in Iraq in 2003.
When contemplating a change in the constitution, the law or conventions, one must ask: what is the mischief that is to be dealt with? How did it come about and will the proposed changes eliminate any possibility of a recurrence? Finally, are there any unintended or undesirable consequences of the proposed changes?
The mischief is that we invaded Iraq when, according to most current informed analysis, that was not legal and it was not necessary. The post-conflict reconstruction plan was not properly executed or drafted, despite it being the legal responsibility of the occupying power to do so. How did this come to pass? The noble Lord, Lord Butler, in his excellent report tells us that the answer involved sofa government rather than Cabinet government and a dodgy dossier that could be torn to shreds in classified briefings with officials. Will the proposed changes prevent a recurrence? I suggest not, because they would not change the deeply flawed government decision-making process of the sofa government of the time. Also, it is not possible for 650 MPs to forensically examine a dodgy dossier or other classified documents. The fact is we have to rely upon the collective judgment of the Cabinet and the rest of the Government. I am afraid the Cabinet has been a miserable failure. The rest of the Government did not do very well, with the notable exception of the noble Lord the Minister on the Front Bench, who took a very honourable position at the time.
The final question to answer is about the unintended and undesirable consequences of an operation. Unless parliamentarians have seen the grand strategic plan for the operations, which I suspect would be a little bit classified, they cannot possibly know the answer to the question of whether the unintended consequences have been properly dealt with. I recall during the debates in February 2003 that your Lordships, while confident of the military outcome, were asking about post-conflict reconstruction. We asked the right questions. Apparently all had been considered, but of course we now find out that it had not.
I do not believe that the proposed changes will deal with the mischief and I intend to examine some of the other issues in a little more detail. There is an argument that the changes will bring us into line with similar democratic states. That may be true, but many of those states do not engage in military operations to the extent that the UK does and, because of their procedures, do not have the utility that the UK forces have; many noble Lords focused on that. In addition, they normally have secrecy and urgency provisions in their arrangements, which means that a malign or incompetent Government can easily circumvent the requirements.
I do not want to tie the hands of a future Government so that their grand strategic plan is skewed around the need for agreement in Parliament. Incidentally, I agree that these matters are for another place uniquely to make the final decision on; debates in your Lordships’ House must precede debates in another place. If a significant proportion of the Members of another place are against government policy in a crisis, a vote of confidence can be called. An adverse vote would stop any military operation in its tracks. In practice, such a situation would never arise because the government Chief Whip in another place would report the views of Members of the House in confidence to the Prime Minister long before any vote took place. Of course, the view of Her Majesty’s Opposition would be crucial. In 2003, the Government were confident of the support of the Opposition and could afford to have a vote in the House of Commons without any risk of it being lost.
If there are to be formal parliamentary procedures, we need to determine when Parliament should decide. I suggest that any authorisation should be far earlier than many noble Lords would expect. When I arrived in HQ 1 (UK) Armoured Division in March 2003, I had the words of the Minister, the noble Lord, Lord Bach, ringing in my ears that war was neither imminent nor inevitable. I confidently expected a month of intensive exercises before we started operations, so I was a little surprised when I got to headquarters and the question was, “Will we be going this week or next week?”.
When the vote took place in the House of Commons, it caused us a slight delay, which was, as it happens, quite useful. However, the timing could have been a significant hindrance. If the vote in the House of Commons had been lost, the operation would obviously have stopped and our forces would have adopted a purely defensive posture. However, we would also as a nation have experienced immediate, catastrophic and permanent failure in our strategic relations with the United States, which no UK Government could afford to allow to happen. The noble Lord, Lord Anderson, articulated similar concerns, but I thought that he was rather muted when he talked about a “stabbing” in the back.
The Government would ensure that Members of the House were aware of the serious consequences of a no vote at a very late stage in the confrontation, so in practice Members of another place would have no choice; they would have to vote with the Government. So why do it? Why have a vote at a late stage?
If there were to be a formal parliamentary procedure, perhaps it ought to occur before any of the following took place: outloading of the ammunition depot other than for training; loading of armoured vehicles on to ships other than for training and for roulements, because that makes us vulnerable to attack by the other state—we are preparing for war; and deployment of combat aircraft overseas other than for exercises. These actions cannot be done easily without our opponent becoming aware of them through other intelligence agencies, but they would be taken early enough in the process not to affect the negotiating position of Her Majesty’s Government and the diplomatic efforts. The difficulty with an early vote is that not all the diplomatic solutions will have been fully exhausted; therefore, it could not be the final decision.
I have run out of time but, speaking for myself, I believe that we should maintain the status quo and return to effective Cabinet government, which has served us so well to the past.
My Lords, I speak as a member of the Constitution Committee of this House, which made the report on war-making powers, so I shall speak only about war making. I do so with the diffidence, which I share with the noble and learned Lord, Lord Mayhew, of a national service soldier who found it a peculiar privilege to have the opportunity of hearing and questioning no fewer than five of our greatest servicemen.
As a member of the committee, I am pleased that the new Prime Minister has reversed the Government’s attitude to our report. The Government have now committed themselves to a requirement that, on the grave issue of going to war, the House of Commons should make the decision, although it is sad that they have not taken my noble and gallant friend Lord Craig with them. I am also pleased that the Government recognise that this House shall have a role, although I accept that there can be only one decision and that must be made by the other place.
The Prime Minister spoke of peace and war, but we are discussing, as everyone has pointed out, the power and the right to involve the forces of the Crown in armed conflict—although I fear that I shall probably lapse back into colloquially using “war”. We all think that we know an armed conflict when we see one, but it would be difficult to define precisely in statutory words the ambit of what was or was not such an armed conflict as to require prior parliamentary authorisation. That is the principal, although by no means only, reason why I was and remain firmly convinced, like the noble and gallant Lord, Lord Guthrie, and many other speakers, that the right way forward is to impose parliamentary control by means of a binding—in my notes I had written “convention”, but in deference to the noble Lord, Lord Morgan, I shall not use that word—resolution based on a clear undertaking, accepted and endorsed by the other party, that the Government will not involve the nation in an armed conflict without a clear vote of the House of Commons. I entirely agree with the noble Lord, Lord Rowlands, that that can be binding, although I do not mind whether it is binding as a convention or as an undertaking by everyone. This is clearly preferable to a statutory obligation, which would present almost impossible obstacles to drafting and definition and which would afford an open invitation to litigation. Wherever we do or do not want lawyers and litigation, we certainly do not want them on the battlefield.
The other advantage of a convention is that one would not be abolishing the royal prerogative and one would require no legislation. One would be saying that in no circumstances would the royal prerogative be used without a parliamentary vote. I accept that the exact wording of the parliamentary convention or resolution would also require careful drafting, but it would not require the precision or detail of a statute and it would be able to be adapted if circumstances changed. In practice, it will almost always be clear whether a particular deployment of forces is or is not of the kind that Parliament intended to control. If a Government were to go to war without parliamentary approval, they would incur the wrath of both Houses just when they were trying to carry the nation with them.
The Government must, in appropriate circumstances, be able to react to an emergency and to take their adversary by surprise by going to war without prior warning or debate. Like most noble Lords who have spoken, our committee considered that this would in fact arise only in rare cases. It was interesting that the majority of the conflicts mentioned by the noble and gallant Lord, Lord Guthrie, did not fall in the category of emergency or, indeed, surprise. But if that did occur, what, then, should be required of the Government by way of parliamentary endorsement? Should they, as I strongly believe, be required to get a positive vote of approval or would it suffice if they merely informed Parliament?
In reaching my conclusion that the Government should definitely have to get an actual vote of approval, I recognise that it might be very difficult for Parliament to vote against a deployment if that deployment had actually taken place and our troops were already on hostile territory. But that is not the point. It is probably pretty unlikely, but even if you ask for parliamentary approval in advance, the Commons will vote by a majority against even a prospective deployment recommended by the Government. The Government may well suffer sufficiently hostile reactions from much of the House such as those which, as has been pointed out, brought down Mr Chamberlain.
The point is that the Government will have to ask and, in so doing, will have to deploy facts and papers setting out the basis on which they wish to go to war and the aims and purposes of that war. That will give them real cause for careful thought and reflection. Above all, it will deter them from getting involved in a conflict on the tail of some ally to whom they have chosen to commit themselves in advance and without reference to Parliament or the knowledge of the nation.
Therefore, I am in favour of parliamentary control by means of resolution. That control would be strengthened if we adopted the very wise suggestion of the noble Lord, Lord Janvrin, in his superb maiden speech, that there should also be a need to report on how the conflict has gone after it has ended.
My Lords, I thank the Minister for allowing me to say a few words in the gap. I will not detain your Lordships long. I wish to refer to the Special Forces. They do jobs of strategic significance; they are commanded at the very highest level; they are of interest to a crisis Cabinet or a war Cabinet. They are often deployed before a war or crisis starts and I do not think that they should be muddled up in the business of parliamentary discussion or views. That can come, as has been said by the noble Lord, Lord Janvrin, in his excellent speech, in the wash-up afterwards. Will the Minister therefore ask his colleagues whether, within the convention and the royal prerogative, the Special Forces cannot have some special treatment so that they are not poured into the whole pot of the military? I hope that the Minister will take note of my words and that something will happen.
My Lords, this has been a remarkable debate—it is remarkable that it has happened at all. It is a matter of great credit to the Government that they have brought forward this important constitutional initiative in the consultative document which was certainly unheralded under the previous Prime Minister.
The debate has been distinguished by the contributions of two maiden speakers. The personal experience of the noble Lord, Lord Janvrin, covers a wide range of activities and his years in the palace have given him a peculiarly advantageous multiple point of departure for reaching his wise conclusions. We look forward greatly to hearing him again on many occasions.
The noble Lord, Lord Hameed, made a distinguished maiden speech about the nature of Islam and its proper interpretation, to which the House paid close attention. At this time, his message could not have been more welcome or appropriate, and his wish to see his beliefs extend the processes of peace is something we all took very much to our heart.
The less controversial aspect of the debate focused on how Parliament should be involved in the treaty-making process. My noble friend Lady Williams of Crosby pointed to the massive importance that treaties now have in conditioning the lives of the citizens of this country and how it is appropriate that Parliament should be more involved than it has been under the operation of the Ponsonby rule. A particularly powerful example was cited by my noble friend Lord Goodhart of the treaty of extradition with the United States, which has imposed unequal terms upon our citizens and was done clandestinely, without the signature even being known to Parliament.
The Prime Minister has indicated his Government’s intention that Parliament’s right to ratify international treaties should be put on a statutory footing. That is immensely welcome. A number of questions were raised in the Government’s paper which merit close attention. We were helpfully advised by the noble Lord, Lord Hannay, not to regard this as a conclusive debate—many more matters need to be fleshed out and we may need further detailed papers from the Government on both topics. In particular, I noted the proposal that a statutory provision might allow the Secretary of State discretion on the need for flexibility. I would like to see what that provides before assenting to such a proposal—it might operate as a manner of getting out of the significant parliamentary obligation.
There is also the need for provisions to be amplified for scrutiny by Parliament both in the provision of information and in providing committee scrutiny. There have been a number of recommendations from this House in particular that it would be a very suitable role for the second Chamber to consider treaties. Although I recognise the difficulty of doing so in all circumstances, I put in a plea for the prior consideration of treaties; it should not simply be ex post facto, when the consequences of rejection can be very serious.
Should the Parliament’s vote on a treaty be binding, as the paper asked? I am bound to say that votes of Parliament should be binding—they should not be indicative alone. That should not necessarily preclude the Government from re-presenting a treaty for consideration at a later date if circumstances and the opinion about it have changed.
The central focus of this debate has been the exercise of the war powers and the inappropriateness—as the noble Lord, Lord Morgan, said, the historical anachronism—of the prerogative controlling their exercise. Once again, the general principle to which the Government have given voice—that the ultimate decision on the use of war powers should be for the House of Commons—is admirable, although I will have something to say about the role of this House before concluding.
There was a general acceptance in the debate that our troops have the right to expect three things when they are committed to armed conflict: first, the support of the country; secondly, the support of Parliament; and thirdly, the assurance that they are supported by the law—particularly international law. These arguments seem compelling for bringing decision-making about the exercise of war powers to Parliament. We have seen a quite disturbing, growing questioning of the legitimacy of interventions within the armed services at all ranks and levels. We must have a means of preventing such a debilitating occurrence.
A number of questions were raised on how this general principle would be operated, some of which could be answered quite straightforwardly. It is clear that operational flexibility in the field must be retained, and we cannot—as the noble and gallant Lord, Lord Bramall, powerfully said—second-guess commanders on the ground. We must also address the morale of the troops. The risk of the perception of the war being unjustified, addressed by the noble and learned Lord, Lord Mayhew, can best be handled by the parliamentary debate preceding the commitment.
What would be the consequences of a failure to obtain parliamentary approval? The noble and gallant Lord, Lord Guthrie, among a number of other distinguished noble and gallant Lords, made the clear point that individual members of the armed services should not be put at legal risk as a result of the failure of Parliament to authorise or approve, either in advance or retrospectively, the action. That, of course, does not discharge them from their obligation to observe the rules of international law, particularly human rights; the defence of superior orders is very limited indeed.
Other questions were raised about definitions of “armed conflict”. Again, the Government have asked for our views on that. Mine is that it should be very wide. Similarly, the definition of “Armed Forces” should include the Reserve Forces, as specifically asked about by the Government.
The need for information to inform the debates before decisions are taken is clearly paramount. The extent of that information provided by the Government is a matter of some controversy. The Government have only committed themselves to providing statements on the objectives, places of troop deployment and the legal basis. I am bound to say that that would be the bare minimum of information required to justify a war or commitment of troops to armed conflict. It is clearly of paramount importance that the legal opinion should be seen to be comprehensive and independent. The role of the Attorney-General has not been satisfactory in this respect in the past, having been partial in too many instances, and incomplete. We wish to see the Attorney-General directly responsible to Parliament.
None of this makes it unlikely or impossible. The Government’s proposals—
My Lords, the role of this House is of great importance. As it stands, the primary decision must be taken by the House of Commons, the elected representative House. If the House of Lords is reformed, however, its role in scrutinising international matters, like many second chambers in other democratic countries, would have to be reconsidered.
My Lords, I congratulate the noble and gallant Lord, Lord Guthrie, on initiating this debate and on making a characteristically thoughtful and authoritative contribution to it. I share the delight of all of your Lordships in the sagacious and—equally importantly—perfectly timed speech of the noble Lord, Lord Janvrin. I look forward greatly to hearing many more in the future. Of course, all of your Lordships admired the eloquent and heartfelt words of the noble Lord, Lord Hameed, about the relationship between religion and peace. We know that his future contributions on these matters will be greatly valued.
The last time we had a debate on this issue in your Lordships’ House was on 1 May last year. When the noble and learned Lord the then Lord Chancellor concluded the debate, he said:
“It is the Government’s position that the current arrangements reflect the constitutional position. There is more than sufficient parliamentary involvement in that, and it would be both wrong and damaging to change the position”.—[Official Report, 1/5/07; col. 1028.]
Those words might be music to the ears of the noble and gallant Lord, Lord Craig, and perhaps also to those of my noble friend Lord Attlee; but are they still music to the Government’s ears? Having heard my noble friend Lord Goodlad analyse the consultative document so clearly, the Minister now has a marvellous opportunity to respond in detail, so that we are absolutely clear on what position the Government will now take on these matters.
Our position is clear. On 15 May last year, there was a debate in another place on armed conflict. My right honourable friend Mr William Hague, the shadow Foreign Secretary, tabled an amendment which said that we support,
“the principle that parliamentary approval should be required for any substantial deployment of British Armed Forces into situations of war or international armed conflict”—
“on the Government to bring forward proposals to give effect to this principle”.—[Official Report, Commons, 15/5/07; col. 481.]
With the exception of the noble and gallant Lord, Lord Craig, and my noble friend Lord Attlee, that proposition has widespread support in your Lordships’ House. The reasons for it are also widely shared.
There is the importance of accountability, not just as a constitutional principle but as a strong incentive to responsible ministerial behaviour.
Throughout the time that the Select Committee report was being drafted, the noble Lord, Lord Holme of Cheltenham, was constantly reminding us that the royal prerogative nowadays operates not in the context of the 17th century but in that of a living, working democracy. It must be seen in that context.
Many noble and gallant Lords also drew attention to the importance of morale in warfare. Almost every military manual—certainly the Royal Armoured Corps military manual—states that morale is the single most important factor in victory. It is crucial that any soldier engaged in operations is confident that not just Parliament but the nation is behind him.
There is another important question: that of legality. As a result of the international criminal convention, as your Lordships will know, an individual soldier can now be prosecuted for a war crime. He will need to be assured, before he goes into operations, that the war he is about to fight is indeed legal. He must be told that. The Attorney-General must take a view, and that view must be stated in public.
One matter that has not been addressed is resources. Parliament is the source of supply. We all know from the operation in Afghanistan that there have been many hesitations about whether our soldiers are properly equipped to fight the battle that they must fight there. Parliament, essentially the House of Commons, is responsible for authorising supply. That, surely, is another underlying constitutional reason for taking the approach favoured by your Lordships.
Of course it is true, as many noble and gallant Lords have said, that the operation of any convention, especially if it is to be enshrined in a resolution, must be in context. I recall the noble and gallant Lord, Lord Inge, saying that each operational situation writes its own particular script; so the operation of the convention must depend on the circumstances. Sometimes we will be engaged in operations because of a treaty obligation or because we are a member of a coalition, or we may have to act very quickly in circumstances of surprise. The noble and gallant Lord, Lord Vincent, reminded us of the operation in Sierra Leone. The convention must have sufficient flexibility to cope with all these different realities. That provides no difficulty; all constitutional conventions evolve and adapt to circumstances; and as our experience of these situations develops, so our application of the convention becomes more sophisticated and gives Parliament increased opportunities to exercise control.
The greatest difficulty is that Parliament will always operate in circumstances of imperfect knowledge. It cannot possibly know all the facts that are known to the non-parliamentary parts of the constitution: to the Cabinet, to the intelligence services and to the Chiefs of Staff. Indeed, it would be inappropriate for Parliament to know those things because they might adversely affect military operations. Here is the crux of the problem, and one that we investigated last year in our debate, as my noble friend Lord Attlee reminded us. What went wrong in Iraq was that there was a breakdown of the non-parliamentary parts of our constitution. The great departments of state, the intelligence services and the Chiefs of Staff were not engaged in the way they were in the Second World War, or I hope in all operations up to Iraq.
The devastating indictment by the noble Lord, Lord Butler, of the operation of government during the Iraq period is a graphic illustration of why it is absolutely essential that the main changes that the Government make to the convention can give Parliament the assurance that this part of our constitution is operating effectively, so that we can trust the decisions taken by these different component parts. Parliament must trust the judgment of people who know more than it does; we cannot operate in this theatre otherwise. I suggest that the Government have got a lot of work to do here; and they will have to convince us that the necessary changes have now been made in the light of the Iraq affair.
I have left myself just one minute to say something about treaties. I thoroughly endorse what the noble Baroness, Lady Williams, said about setting up a committee to investigate treaties. This is a subject to which we are returning rather than initiating today. The noble Lord, Lord Goodhart, well knows, because I have said it in your Lordships’ House on many occasions, that I entirely agree with him about the importance of investigating certain types of treaty before they are signed and ratified, not after. He will share my dismay if he reads paragraph 2(1)(b) of Annexe C on page 85 of the consultative document, in which the Government expressly exclude that situation from their remit.
This has been a most invigorating debate.
My Lords, I too thank the noble and gallant Lord, Lord Guthrie, for initiating what has been a quite splendid and high calibre debate. I am up against the clock, and if he is to respond I must finish absolutely in 20 minutes. I shall try to deal with a number of the most important matters that have been raised in your Lordships’ debate.
First, I join other noble Lords in thanking the noble Lord, Lord Janvrin, for his exceptional maiden speech. We all look forward to hearing from him in the future. He made some most interesting remarks about changes to the constitution, and I encourage him to join us in our ever enjoyable debates on the future of your Lordships’ House, which I think he will very much enjoy. The noble Lord, Lord Hameed, spoke most eloquently of the extraordinary risks that we face from religious intolerance. I commend him for his brave and robust stand against extremism.
The noble Baroness, Lady Williams, said that this was a most significant moment in the constitutional evolution in this country. I share that view. The key element of the paper that we are debating that runs through all of it is the need to limit the powers of the Executive and to subject them to greater scrutiny and control. That stems from a conviction that, in our democracy, the freedom of the Executive should be more formally constrained in order to respect their obligations to Parliament. This is especially true when the Executive derive their powers from the ancient prerogatives under the Crown, rather than those explicitly granted to them by Parliament—the context of which my noble friend Lord Rowlands put so well.
The noble and gallant Lord, Lord Guthrie, emphasised that the power to send the Armed Forces into conflict and to commit the country to international obligations through the conclusion of treaties are two of the most important powers that a Government can wield. It is axiomatic for a democracy rooted in the sovereignty of Parliament, as we are, that it should be Parliament that has the final say in such grave matters. I very much endorse the remarks of the noble and gallant Lord, Lord Bramall, when he talked of troops in the field needing the support of country and Parliament, as well as understanding that what they are doing is legal. I also entirely endorse the view that it is unthinkable that action could be taken without parliamentary approval.
We are in a very different world. The existing arrangements need to change, and the consultation paper, as noble Lords know, sets out a number of matters that will need to be fully discussed and worked through to effect those changes. The consultation closed on 17 January, but I assure noble Lords that today’s debate will be taken fully into account. It is clear that there is widespread support in your Lordships’ House for the direction of travel. Equally, it is also very clear, as a number of noble Lords have said—the noble Lord, Lord Wakeham, was particularly forceful about this—that the Government must have a degree of latitude in considering whether the Armed Forces should be deployed or engaged, and if and when they are, how to prosecute any conflict. We need to strike a balance here to guarantee the flexibility and members of the Armed Forces, and we are very much attuned to the need for reform to take into account the impact on the Armed Forces in the field. I hope that the consultation paper makes that clear, and certainly paragraphs 38 and 39 make the point that the impact on the morale of members of the Armed Forces themselves is critical, and that by providing a mechanism for explicit parliamentary approval of relevant deployment decisions, the intention is to show the Armed Forces that Parliament, and through it the nation, is fully behind them.
I understand the concerns of the noble and gallant Lord, Lord Craig of Radley, but there is no intention in any of our proposals discussed in the document to interfere in any way with the operational decisions of commanders in the field. These proposals are intended to ensure that Parliament is consulted. I know that the noble and gallant Lord raised some very detailed questions, but perhaps I may refer him to the remarks of the noble Lord, Lord Armstrong of Ilminster, who made the case for generality rather than getting too detailed and inflexible.
The options set out in the paper have been referred to. Again, they seek to strike a balance between approval by Parliament and flexibility. The paper sets out four options and we have yet to take a firm view on them. On the one hand, it makes clear the advantages of putting in place a structure around parliamentary resolutions so that they can be created with less formality and are more easily amended, but that failure to comply is not automatically unlawful and its interpretation is a matter for Parliament rather than the courts. On the other hand, however, there are disadvantages. It might appear to provide a weaker assurance of compliance by the Government and it does not formally constrain the prerogative. As the noble Viscount, Lord Bledisloe, and the noble Lord, Lord Goodlad, pointed out, the Constitution Committee came out firmly against the idea of the legislative route, and that view seems to be supported by many noble Lords. We recognise the various concerns that have been cited and we will look carefully at these matters. I also accept, as my noble friend Lord Morgan suggested, that conventions evolve and are not made.
I turn to the definition of a conflict. The noble and gallant Lord, Lord Vincent, described some of the challenges here with changes in the nature of conflict. He will know that the consultation paper proposes that the meaning of “armed conflict” is that used in international humanitarian law and sets out an example in draft as Option B of Annex A. It is worth remarking that this is linked to the issue of how the Government would continue to fulfil their international obligations and their ability to participate in any multinational obligations that would form part of those very obligations. The Government will have to continue to work with coalition partners and any procedure would need to reflect those continuing obligations. Similarly, the consultation paper sets out where there should be an exemption for exceptional circumstances, when in order to maintain operational security and effectiveness it may be necessary to allow deployments without parliamentary approval.
I thank the noble Earl, Lord Attlee, for his kind remarks. He discussed Cabinet government and its loss. I do not agree, but I would say to him that parliamentary scrutiny is the best answer to his issues and concerns. Of course the information supplied to Parliament is critical, and the noble Lord, Lord Kingsland, was right to say that there will be limits to the information that can be provided. There is and has to be a question of trust, but I am confident that the current arrangements which have been put in place will respond to the question he raises. I would also say to my noble friend Lord Morgan that the advice given by the Attorney-General is a matter that is being considered as part of the current consultation process being undertaken by the Attorney-General.
The information may be imperfect, as the noble Lord, Lord Kingsland, suggested, because any information supplied should not put the Armed Forces in jeopardy or compromise the effectiveness of operations. One of the suggestions put forward in the consultation paper to allow Parliament greater access to some information would be for Parliament and the Government to agree the way in which sensitive information could be presented. There might, for instance, be a Joint Committee of both Houses, and the views of noble Lords on that proposal would be extremely interesting.
That leads to the question of when. I am grateful to the Constitution Committee for its very interesting comments on that. Sometimes, for reasons of urgency or national security, it would not be possible for Parliament to give prior approval. The Constitution Committee does not favour a requirement put forward in the consultation paper that it would be the duty of the Government merely to inform Parliament rather than to seek retrospective approval for deployment. The committee’s preferred option is that in regard to such an application, if it were not possible to seek prior approval, the Government should provide retrospective information within seven days or as soon as was feasible, at which point parliamentary approval should be sought. I should say on this that there are a number of issues on which to reflect. If Parliament did not then provide retrospective approval, there would be an expectation that forces would be withdrawn or remain in theatre as part of a coalition but under different terms. That might involve a breach of international obligations or damage international relations, and to take action quickly might put the Armed Forces at risk. The Government consider that the preferable alternative would be to introduce a procedure under which the Prime Minister would be obliged to inform Parliament when Armed Forces had been committed under exceptional circumstances with no further proceedings. Indeed, I think that that was the approach favoured by the noble Lord, Lord Lester, in his Private Member’s Bill.
The noble Lord, Lord Hannay, asked a series of interesting questions about the impact of delays and constraints in making decisions by international organisations. He asked how one could ensure that parliamentary exchanges do not cut across or undermine the procedures leading to agreement among international organisations. That is a very important question that we will need to consider. Again, the question of what has been described as mission creep is also something that will need very careful consideration. The Constitution Committee made clear its concern at the Government’s proposal that Parliament’s involvement should be limited to approving the initial engagement. The committee would prefer that in addition to keeping Parliament informed of the progress of deployments, the Government should be required to seek a renewal of parliamentary approval if a deployment’s nature or objectives were to alter significantly. It went on to say that such a requirement is vital to ensure that mission creep does not become a problem. As several noble Lords have pointed out, recent experience has shown us that military operations often change in size, scope and nature as situations develop, so it is important that the mechanism is triggered at an appropriate point during a routine deployment or out of scope operation if a developing situation requires it. I noted the caution of the noble and gallant Lord, Lord Inge, on this and here operational flexibility is of vital importance. It is important that any processes or procedures do not hold up an operation or compromise operational effectiveness, so we have to ensure that we get the balance right.
As to the question raised by the noble Lord, Lord Hannay, about what he described as a “light option procedure”, I understand that the German model requires parliamentary approval for all deployments but also provides for a simplified procedure in cases of deployments of low intensity and importance. The terminology “low intensity and importance” applies if the number of soldiers is small and the deployment does not involve participation in a conflict. That might include reconnaissance, armed missions for the purpose of self-defence, and where individual soldiers are deployed in the framework of personnel exchanges in a UN, NATO or EU mission. The Government will give further consideration to those matters.
The noble and gallant Lord, Lord Craig, asked whether the mechanism will cover the Navy and Air Force. Our intention is that any deployment of the Armed Forces—which of course would include the Army, Navy and Air Force—into armed conflict overseas would be covered by the mechanism.
What should be role of the House of Lords in this? The noble Lord, Lord Thomas of Swynnerton, was supportive of the proposal that the House of Lords should have to pass a resolution, save where there are reasons of urgency. The general consensus of your Lordships’ House is that the House of Commons has to have primacy in that matter, but that the House of Lords could have an important role in providing advice to the House of Commons. There is a great deal of support for that.
My understanding is that it is true that the last time the UK declared war was in 1942, and my advice is that it was Siam. No doubt we will discuss that further when we come to eventual legislation.
I should say to the noble Viscount, Lord Slim, that the draft clauses proposed by the Government in all of the options contained in the paper already set out an exemption for special forces. The Government would not want in any way to compromise the nature of the use of special forces in the field.
I have a little time to talk about treaties. Generally, the proposals in the paper have been welcomed by noble Lords. Like my noble friend Lord Anderson and the noble Baroness, Lady Williams, I also pay tribute to the noble Lord, Lord Lester. I have no doubt that parliamentary involvement in the scrutiny of treaties will take us further forward.
A number of important points were made about which treaties should be scrutinised. We shall shortly be debating a European treaty in the House and the unique nature of the constitutional relationship between this country and the European Union means that the effect of such a treaty is of great significance. In such circumstances it is right that special provisions are made that would not be appropriate for a wide variety of the treaties that the UK enters into each year.
In answer to the noble Lord, Lord Goodhart, the proposals in the consultation document do not preclude special arrangements being made for other specific treaties. It remains open to the Government to use a more stringent scrutiny for any given treaty where they consider that that would be the right course of action. I note the preference of the noble Lord, Lord Maclennan, for a binding vote, with the Government able to come back to Parliament for a further view at some stage if the vote should turn down a treaty.
As to the suggestion that a parliamentary committee should scrutinise treaties, that would be a matter for Parliament to decide. It is a decision best taken in the light of the eventual conclusion of the Government in this matter. I should have thought that a committee of this House or both Houses could have a very important role to play.
On pre-scrutiny, I should say to the noble Lord, Lord Kingsland, and other noble Lords that it is already common practice for Ministers to communicate with the relevant Select Committee prior to signature of a treaty. However, it is important to remember that there is often a long time between treaty negotiations commencing and treaty ratification and it would not be practical to involve Parliament in the negotiation process without risking excessive delay. That is why we have gone for the balanced approach suggested in the consultation paper.
If the noble and gallant Lord, Lord Guthrie, is to have any time at all, I should now sit down. This has been a marvellous debate and the speeches have been of high quality. I can assure noble Lords that the Government will take very careful account of all the contributions that have been made.
My Lords, I thank all noble Lords who have taken part in the debate. Both the noble Baroness, Lady Williams of Crosby, and the Minister have said that it was a significant and important occasion. It is very good that we have had significant and important contributions from all parts of the House, which I hope will be helpful. I thank the Minister for his response. The Government deserve great credit for continuing to bring this important subject to the fore. I beg leave to withdraw the Motion for Papers.
Motion for Papers, by leave, withdrawn.
Women's Justice Board
rose to call attention to the case for the setting up of a Women’s Justice Board; and to move for Papers.
The noble Lord said: My Lords, I am conscious that the Minister has already been in action for three and a half hours on war powers. As a former military man, I am not going to deny that I am also interested in war powers—but war powers in a completely different circumstance. I am interested in war powers for the war against the unacceptable and inappropriate treatment of and conditions for women in prison. I am particularly concerned with one of the principles of war—the maintenance of momentum—and, as I detect that a window of opportunity has opened with the announcement by the Secretary of State for Justice of reforms to the National Offender Management Service and the announcement of an action plan on the treatment of women within six months, it is appropriate that we should address ourselves to how the momentum that is needed is to be changed.
The background to the debate is the report published by the noble Baroness, Lady Corston, in March 2007, which was a review of women with particular vulnerabilities in the criminal justice system. I pay particular tribute to Chris Clarke in the Library, who has produced an excellent Library note on the debate. I am sure that your Lordships would like to join me in congratulating him on that and thanking him for it.
I had planned a debate on that report in May 2007, but I was persuaded by the noble and learned Baroness, Lady Scotland, to delay it because she had not yet completed her response. She said that there would be a debate on it later, and that was endorsed by the noble Baroness, Lady Corston, who could not have been here on that day. In the event, however, in June neither the Home Office nor the noble and learned Baroness had any further interest in the report. It then became the responsibility of the Ministry of Justice, and it was not until December, long after the statutory three months’ response, that the response to the Corston report was published. The Minister, Mr David Hanson, in effect accepted 39 and a half of the 43 recommendations and recommended in particular the importance of improved governance. Central to that, he said, was the appointment of a ministerial champion for women and criminal justice who would ensure that the actions to address issues for women were given the necessary priority and that commitments were delivered, as well as the appointment of a cross-departmental unit responsible for women and criminal justice, headed by a senior civil servant, to co-ordinate, drive forward and monitor the work on behalf of the Minister. It is on that proposal—a Minister as champion—that I am declaring war, without doubting in any way the commitment of the nominated Minister, Maria Eagle, whom I know to be totally dedicated to the task, as indeed are her ministerial colleagues.
My interest in this subject began two minutes after I entered the Home Office on 1 December 1995 as the new Chief Inspector of Prisons. I was met by my then deputy, who had been a governor of Holloway, the largest women’s prison in the country at the time. There he had defeated a strike by the POA, as a result of which he was removed from being governor and made an inspector, which struck me as being very silly. He told me I had to make an immediate decision because conditions in Holloway were so bad that the board of visitors had been making reports for six months to Ministers and the Prison Service and nothing had happened. He endorsed the idea of us going in and asked me when we would go. I said that I needed a week to find out what my job was about, so we would go the following week.
That week is seared into my memory, and I shall never forget it. I had never seen anything like it in my life. I shall repeat three aspects of it. The first was a conversation in the mother and baby unit with a young mother who said, “Do you think it was right that I was in chains?”. I said, “Chains when?” and she said, “When I was having him”, pointing to her six week-old son. I said, “Are you telling me that you were in chains when you were in labour?”, and she said, “Yes”. I turned to the governor and said, “Am I hearing correctly?”, and she said, “It’s regulations”.
Then I was shown diagrams of women’s injuries on diagrams of a man’s body. The reason for that was that no diagrams of women’s bodies were printed by the Prison Service, which told me that something was wrong in the direction. When I went to see the director-general of the Prison Service and asked to see the director of women who was responsible for treatment and conditions everywhere, he said that there was not one. I said, “Who is responsible for telling people what to do?” and he said, “A civil servant in the policy department”. I asked who was responsible for going out and seeing that treatment was consistent everywhere, so that women in Kent were treated in the same way as those in Lancashire. He said, “No one”.
It struck me that, if that was England in 1995, it cast doubts on the word “civilisation”. I decided that something had to be done and that the inspectorate could play a part. In 1997, I published a paper entitled Women in Prison, recommending that a director should be appointed, responsible and accountable for what happened to all women anywhere, with budgetary and other responsibilities. I also recommended that instead of these monster places like Holloway, to which women were brought from all over England, there should be smaller units all over the country. I described one in Minneapolis that seemed to be the sort of model that we could follow. Recommendations accepted; nothing happened.
In 2000, the Prison Reform Trust published a report, Justice for Women and the Need for Reform, recommending the establishment of a women’s justice board on the lines of the recently established Youth Justice Board for England and Wales, charged with developing and implementing policy for all women offenders. Recommendation accepted; nothing happened.
In 2001, I published a follow-up to Women in Prison, repeating my earlier recommendations, particularly for the director, and supporting the idea of a women’s justice board. Accepted; nothing happened.
In 2004, on the Floor of the House, the noble Lord, Lord Rooker, who had previously been a Home Office Minister, admitted that, while he supported strongly the idea of the women’s justice board for precisely the reasons given by the Prison Reform Trust, the Home Office had still not got around to implementing it. Also in 2004, the Fawcett Society published the report of a commission on women in the criminal justice system, calling again for someone to be responsible and accountable for implementing policy. Again, there was no action.
We then come to 2007, when the noble Baroness, Lady Corston, called for a commission,
“led at director level, with a remit of care and support for women who offend or are at risk of offending”.
It must be cross-departmental, she said, reporting to an interdepartmental ministerial group,
“to drive forward the Commission’s agenda within their individual departments”.
She admitted that she called it a commission for largely semantic reasons, because the word “board” did not seem to be acceptable in government parlance. Yet what she was describing in what she called her commission is precisely what the Prison Reform Trust was calling for earlier, which others had endorsed.
We then have the Government supporting the appointment of a commission—in principle only—but wanting to appoint a champion Minister. Why do I object to that? First, you only have to go onto the Ministry of Justice website to see all the other responsibilities that Maria Eagle has. Therefore, with all the best intentions that she might have, how much time will she be able to give to being the champion? Secondly, we all know how frightfully busy Ministers are anyway with all the other demands on them. We also know that Ministers seem to change with bewildering rapidity, so for how long is she likely to be in post? The record shows that Ministers come with their own ideas; there is no reason why they should not, but that is no way to achieve consistent development of anything like an action plan.
As I have indicated, we have so far had countless recommendations and reports that have been accepted. There have been publications by the Home Office and the Howard League; there have been initiatives and intentions. Yet so far, while there have been individual improvements in certain places, all that has been inconsistent because what is lacking is someone with direct responsibility for maintaining consistent improvement. In any week, if one intercepts this situation one finds inconsistent delivery all over England between all of the prisons, because nobody is responsible. Yesterday, in her annual report, HM Chief Inspector of Prisons drew attention to that yet again. She pointed to the inconsistencies that existed, the lack of appropriate treatment for women and the failure of people to listen to the reports made by the inspectorate, year after year, saying exactly the same thing and for exactly the same reasons.
Today, the Children’s Commissioner has published a report on mother and baby units, a most important aspect, drawing attention to the fact that there are too few of them and that they are very thinly spread around the country. That means that far too many women who are going to have a baby in prison are miles away from where they come from. There is only one unit—at Rugby in Warwickshire—for girls under 18. It is in the Rainsbrook secure training centre, and it only has three beds. That is another aspect that has been ignored, but again the Prison Service was directed to—and promised to—carry out a review of mother and baby units as long ago as 1999. Nothing has happened, and nobody appears to have chased it, because there is of course nobody there to do the chasing.
I now come to the present, since the past is the past. I have said that there is a window of opportunity, and my purpose in putting down this Motion is to suggest ways in which that window can be used. The Ministry of Justice has announced, really, a reversion to the situation in 2001, when there was the equivalent of a commissioner of corrections’ responsibility for the prison and probation services—I do not argue with that. However, where I do argue with the Ministry of Justice is in its making probation subordinate to prisons. That is a most regrettable step. One of the keystones of the Corston report is that, to reduce the appalling number of women in prison who should not be there and whose situation so dismayed the noble Baroness when she started her report, one needs proper community sentences and programmes to provide a satisfactory alternative to the sentencer. Therefore, the Probation Service must be right up in the hunt: not subordinate to but equal with the Prison Service, because it has an equal responsibility for what is going on. Today, another report has been published by the National Audit Office, drawing attention to the poor quality of community supervision and stating that there are all kinds of reasons for it, not least the lack of direction and resources in the Probation Service. It is all very well saying that we accept the recommendation for greater use of probation and community sentencing, but, if the resources do not exist, one will not get it.
The Minister should realise that the reason that nothing has happened for so long is that nobody has been responsible for doing it. Until one makes somebody responsible and accountable to the Minister for implementing the plan, it will not happen. The tragedy of that is that all the wonderful stuff in Corston, which is her regurgitation of what many of us and others have been saying for years, will join those reports as paving stones on a road to the future that is littered with good intentions. None of us wants that. I beg to move for Papers.
My Lords, I thank the noble Lord, Lord Ramsbotham, for securing this debate. The usual suspects are on the speakers list, which gives the message to the Minister that, unless changes are made and the issue goes away, we will be back again.
A number of public debates have identified the need for a women’s justice board. I am indebted to the noble Baroness, Lady Corston, for her support for the establishment of such a board. The Corston review was commissioned by the Home Office and was published in 2007. In March 2008, we will again celebrate International Women’s Day. It is sad that hardly any movement has been made by the Government despite their admission that too many women are in custody.
We must accept that factors which affect women offenders are complex. In many cases, the use of more non-custodial options seems to bypass women offenders. How on earth have we produced this anomaly? Unless positive action is taken to remedy the situation, we will be back here again, reflecting the same concerns, in future years.
The Government’s response, as spelt out by the former Minister in your Lordships’ House, is wholly inadequate—and to an extent misguided. We are told that we do not have a separate framework in law for women because we have a different structure for them. We are further told that to go down the route of a women’s justice board could risk marginalising women further, when what is needed is to mainstream provision for women and ensure that, under the national offender management structure, sufficient priority is given to service provision for, and management of, women offenders.
This is absurd. The Government’s approach, taken at face value, is at variance with other policy areas. For example, if women do not have special and specific issues to face, why do we need a Women’s Minister? Why did we put on statute the Sex Discrimination Act 1975? Why do we have a Commission for Equality and Human Rights which tackles women’s issues as part of its overall brief? We do so because the fact remains that there are shared issues, special issues and specific issues that affect women. If the mainstream provision cannot meet these—and the evidence is that it cannot—there is no reason why we should not look at alternatives, and a women’s justice board is a viable option open to us.
The national offender management structure deals with service provision for women only when they have been sentenced. It cannot deal with the increase in the severity of offending, or why are our courts using custody for women more frequently and for less serious offences than before?
I should spell out in what ways women offenders’ characteristics and needs differ from those of male offenders. First, a much higher proportion of women prisoners have mental health problems than male prisoners. Surveys show that more women prisoners have a psychiatric history before entering prison. Many more have histories of self-harm than male prisoners. More have personality disorders, neurotic disorders, learning disabilities and problems of substance abuse—and more have more than one diagnosis. Many more women prisoners have suffered past physical or sexual abuse at the hands of adults or partners.
Secondly, a much higher proportion of women prisoners are sole carers of young children. In most cases where male prisoners are parents of young children, the child’s mother is looking after them on the outside, but in only a quarter of cases of mothers in prison are the children looked after by their current or former partner. Thirdly, because there are far fewer prisons holding female prisoners, women are much more likely to be in prison a long way from their home areas. This makes visits from their children and other relatives more difficult and reduces the practicality of visits by probation officers from their home areas. With the mounting pressure of numbers, this problem has increased as women are increasingly transferred to whichever prison anywhere in the country has a vacancy.
Over the last 15 years the courts have responded to the growing mood of toughness in penal policy by adopting a more punitive stance towards women offenders. During that time the number of women prisoners has risen more than twice as fast as the male prison population. Yet most women sent to prison are neither violent nor dangerous and the majority have few previous convictions. Against this background we should look seriously at the case for establishing a women’s justice board.
There is no doubt that the Youth Justice Board has significantly improved the arrangements for dealing with juvenile offenders. It has done this by setting standards for provision for young offenders. There is an equally strong case for the establishment of a women’s justice board. The needs of women offenders are sufficiently distinct to justify establishing a board with the task of ensuring that provision for them meets their special needs. Because women offenders are a minority of those coming before the courts—and a smaller minority of those in prison—their special needs are much more likely to be overlooked if they remain an afterthought, tacked on to a system which is largely geared to the needs of men.
In short, the establishment of a women’s justice board could be the single most important step we could take towards improving the treatment of women offenders. We are faced with confused thinking on the part of policy-makers. Today’s announcement seems to be a knee-jerk reaction to a serious crisis emerging in our prisons. The noble Lord, Lord Ramsbotham, identified a way forward. My advice to the Minister is to take up the challenge and advise his policy-makers to come up with a rational approach to women offenders.
My Lords, we are debating a subject of profound importance in which the need for action, not options, is critical. The noble Lord, Lord Ramsbotham, whom I warmly congratulate on his tenacity on this subject, talked about the need to maintain momentum.
There have been many champions but none has yet been effective. I also endorse the work of Dorothy Wedderburn—I was pleased to see my noble friend Lord Hurd in his place earlier in the debate—that of the noble and learned Lord, Lord Woolf, on women in prison, and that of the Fawcett Society and many others.
We are in an extremely dispiriting situation. There is a growing understanding of the problem. It is widely accepted that women who have committed crimes are doubly punished. They have broken not only the law, but the accepted societal norms of feminine behaviour. This experience of punishment is then multiplied within the female prison estate, which is an adapted male model. The one-size-fits-all approach is inappropriate for women and operates in a system where the male prison population predominates. The family and social backgrounds of women who are sent to prison display significant problems with relation to mental health, drug use and a history of violence and sexual abuse. There is a broad consensus that women in prisons have different needs from men. Sending women to prison usually is a highly damaging and destructive way of dealing with female offenders, who in most cases have committed non-violent crimes and are not a risk to the public. I am indebted to the Centre for Criminology and Criminal Justice at the University of Hull, where I serve as chancellor, for the advice it has given me in synthesising some of the literature, and in particular to Dr Helen Johnston. I also add my congratulations to Chris Clarke on his Library note.
Up to 50 per cent of women report having experienced violence at home compared with a quarter of men. One in three women in prison has suffered sexual abuse. Some of the most deprived women in society end up in prison. If their needs had been identified earlier, incarceration should and could have been avoided. Most worryingly, the incarceration of women compounds the problems for their children. If ever the sins of the parent were being visited on the child, it is the case for women in custody. Many of the women are relatively young—only 16 per cent are over 40. Two-thirds are mothers and 45 per cent had children living with them when they were imprisoned. According to the Prison Reform Trust, 17,700 children are separated from their mother by imprisonment each year. Only 5 per cent of children—one in 20—remain in their own home when their mother receives a sentence. They are losing not only their mother, but their surroundings—the context in which they live. Is it surprising that those children, according to the evidence from Action for Prisoners’ Families and the Howard League, face disruption to their education and have difficulties coping at school? They end up being cared for outside their immediate families. The noble Lord, Lord Dholakia, made the point about the difficulty in visiting. Recent evidence suggested that at HMP Cookham Wood 33 per cent of mothers were not receiving visits from their children. That is appalling. A quarter of mothers are held more than 100 miles away. The children lose their mother and their home, and it is almost impossible for them to visit the mother.
On the issue of emotional distress, the Minister in another place yesterday corrected the questioner who asked whether it was true that 70 per cent of women in prisons suffered from mental health problems. The Minister’s evidence was that it was 80 per cent. This is not an acceptable state of affairs. Women face appalling problems on their release from prison. A third of women lose their home when they go into prison, so are we surprised about the difficulties they have resettling in the community? I pay tribute to the Surrey Community Development Trust. It organises an excellent post-release scheme but it is minute. It is a beacon—a centre of excellence—but it is inadequately funded and not available to the vast number of women. It is time for us to act. I am encouraged by the activities of the shadow justice team which, as is right in opposition, is having a programme of re-evaluation and thought. I shall ensure that Nick Herbert, the Member for Arundel and South Downs, sees our deliberations today and I shall speak to him about what we believe now needs to happen—and needs to happen fast.
Yesterday’s report by the Chief Inspector of Prisons, Anne Owers, was a wake-up call if ever there were one. Suicide and self-harm in women’s prisons remain a significant problem. It is troubling that the number of self-inflicted deaths among women more than doubled from three to seven last year, reversing the trend of previous years. Women make up only 5 per cent of the prison population but account for 11 per cent of self-inflicted deaths. Women are 16 times more likely to self-harm than men and account for nearly half of all self-harm incidents. Some 31 per cent of women in custody had self-harmed, compared with 6 per cent of men. The statistics for young women are particularly shocking—89 per cent of girls and 69 per cent of young adult women had harmed themselves. As we all know, in the wider population, the suicide rate for men is twice that for women. That shows the way that the prison environment exacerbates the difficulties that these women face.
It was of course the high number of suicides at Styal prison in 2003 that at last forced the Government to act and set up the Corston inquiry. We are really disappointed that the noble Baroness, Lady Corston, is not with us today. We have just seen the evidence on another female inmate—Lisa Marley, aged 32, took her own life at Styal. I would be interested to know whether the Minister could confirm that she had been recommended for parole.
The figures go up and up. They have almost doubled in the past 10 years, and can now be seen in the context of a prison crisis that Anne Owers said was predicted, predictable and fuelled by legislation and policies that ignored consequences, cost or effectiveness, together with an absence of coherent strategic direction.
We have to act. We want clarification about the Titan prisons—great warehouses for prisoners—that go in totally the opposite direction to small, accessible prisons. Furthermore, women’s prisons are being reroled for men because the crisis in men’s prisons will always take precedence, as we all know.
I share the noble Lord’s problems regarding the machinery of government. Ministerial groups, interdepartmental groups and official-led groups come and go. If I were told that an official group would be led by Helen Edwards, I might have some confidence. She worked with me many years ago when she was at Nacro and I was chairing a committee for the Children’s Society on alternatives to justice for 14 year-olds. I have been involved in these matters for more than 30 years, led by the speaker who will follow me, the noble Baroness, Lady Howe of Idlicote.
As the noble Lord said, we knew then that alternatives to prison would be the ideal way of avoiding incarceration. I speak rarely in this place and only when I have a profound conviction. We need a champion, such as my late aunt, the former mother-in-law of the noble Baroness, Lady Jay. On Monday, we went to the funeral of Peggy Jay on what would have been her 95th birthday.
My Lords, it is a great pleasure to speak after the noble Baroness, Lady Bottomley. As she said, we have spent a lot of time in this area of juvenile courts, among other things. I thank my noble friend Lord Ramsbotham for bringing this important issue before us. He is an inspiration in the whole of this area, The excellent Corston report is the latest document to stress the need for a radical change of approach in this area. As we know, it is not the first. The case for change was crystal clear well over 10 years ago and we have heard about my noble friend Lord Ramsbotham’s two thematic reports—one published under one Government and another under the following Government. Both Governments who have been in charge of this system have failed to do what needs to be done.
There have been many reports since then, including the Wedderburn report of the Prison Reform Trust which made a major call for a women’s justice board. In 2004, the Fawcett Society examined the problems faced by women throughout the criminal justice system. I must say that I have become tired of seeing this matter brought to debate again and again, but taken no further. Despite all this, the Government have failed to begin making the changes that are desperately needed. Continual delay has certainly reinforced my noble friend’s case for the establishment of a thoroughly independent—I stress, independent—board to ensure action. I have no objection to any ministerial team doing its stuff, too, but we need an outside board to ensure action.
A prison system designed on military lines by men and for men is, as we all know, inappropriate for women. The crimes committed by women are largely non-violent—30 per cent of female inmates are being held for drug offences—and their sentences are correspondingly shorter. Sixty-three per cent are serving sentences of six months or less. What meaningful, rehabilitative work can be done in such a time, even without the catastrophic overcrowding referred to in Anne Owers’s annual report, published yesterday?
Secondly, as we heard from the noble Baroness, Lady Bottomley, women are far more likely to be the primary carers of children. More than half of women in prison have a child under 16, more than a third have a child under five and 20 per cent are lone parents. The social cost of imprisoning women in terms of family breakdown is incalculable. I am glad that a number of organisations are trying to work out what some of the more preventive measures would save the nation.
Women in prison are disproportionately vulnerable. Many are victims themselves. I suspect that the true percentage is much higher than is recorded. I have mentioned drug offences. Among the foreign women imprisoned in this country, a high percentage are serving very long sentences for acting as mules—bringing in drugs, no doubt under the auspices of organisers who are paying no penalty at all. Seventy per cent require clinical detoxification, as against only 50 per cent of men. More worryingly, up to 80 per cent have diagnosable mental health problems. So it is unsurprising that the rates of self-harm and suicide among women in prison are far higher than those among men.
The increasing severity of sentencing under this Government has caused the number of women in prison to rise. On 20 November 2007, the number of women in prison was 4,510. In the past decade, that figure has more than doubled. It is in this light that the noble Baroness, Lady Corston, has argued for a radical restructuring of the way that women are treated in the penal system. It is good news that the Government are committed to implementing the gender equality duty and that there is more enthusiasm among Ministers for community sentencing. But, as other noble Lords have said, it is hugely disappointing that the Government have so far failed to commit themselves to the central proposal of the noble Baroness, Lady Corston. It took the Government nine months to respond to the noble Baroness’s report.
In contrast, the review by the noble Lord, Lord Carter of Coles, published in December 2007, was met with immediate endorsement and the promise of a huge sum of money for the construction of three Titan prisons, each designed to hold up to 2,500 inmates. Surely this is quite the wrong direction—not just for women, but for all members of the prison estate. Men today are increasingly playing a role in their children’s upbringing. This should be encouraged in the penal system as well. There are good examples of where this is beginning to happen—Wandsworth is one of them. Placing prisoners, whether male or female, in enormous prisons far from home can be only detrimental to the maintenance of family ties and to the possibility of reintegration into the community. More resources for projects to prevent offending and early help for vulnerable families are crucial. Where that fails, more help is required to prevent reoffending.
The recommendations of the noble Baroness must, for all our sakes, be given the attention and funding they deserve. I hope that the Minister will at last be able to reassure us on this point.
My Lords, I thank my noble friend Lord Ramsbotham for this Motion and I agree entirely with previous speakers that we urgently need to study the state of women in our prisons. The noble Baroness, Lady Bottomley of Nettlestone, has run through the whole gamut of the facts and figures and I need not repeat them.
The facts about women, who constitute only 5.5 per cent of the total prison population, are extremely alarming and they underline the need for rapid reform. That is why the report of the noble Baroness, Lady Corston, is so important. It made three radical—one might say almost visionary—recommendations. It proposed multi-purpose women’s day centres in our main cities. Through voluntary attendance at such centres, much would be done to prevent crime among women. The centres would provide for early diagnosis of addictions and mental ill-health, and they would provide help with debt and housing problems. Attendance could also be made compulsory by court order. This would enable a whole range of community sentences to be properly supervised and enforced. Such centres would support women at risk of offending and others who had actually offended. They would link both categories with the existing services that they need.
The second proposal was for residential women’s centres. These would provide for “conditions of residence”, curfews and tagging during non-custodial sentences. In addition, they would accommodate women remanded in custody or given short prison sentences. Once again, they would connect their residents directly to much needed services and training. Such residential centres would probably need to be semi-secure but should also have provision for small children to remain with their mothers.
Women’s centres of the kind I have mentioned would allow for professional assessments of women in trouble. They would also allow women to do their own self-assessment in a place of safety with a modicum of support. Such self-assessment can be crucial when life seems to be going wrong. It is a first step to finding meaning and purpose and to discovering a person’s hidden talents. In the centres, there would be much scope for reformed ex-offenders, whether as volunteers or staff members.
Finally, for really serious violent or dangerous convicted women, there should be small local custodial units holding perhaps 30 people each. These would be staffed by people experienced in working with women and should come under the commission for women offenders, or whatever it is to be called.
I regret that the proposals of the noble Baroness, Lady Corston, are far too little known by the public and I trust that this debate will publicise them, among both men and women. Of course, there will be implications for resources. These, however, should be seen in the context of the huge cost of conventional prisons, the current 64 per cent reoffending rate among women and in the light of the costs of childcare for mothers in prison, not to speak of the risk of prisoners’ children themselves taking to crime.
I regret that the Government’s response to the report of the noble Baroness, Lady Corston, although quite detailed, has been worthy but not sufficiently strategic. I trust that the Minister, if he is not completely overwhelmed by his duties today, will be able to be far more positive when he replies. I would love to see justice for women leading the way to reforms for young offenders and then for all offenders.
All parts of the prison system are, I suggest, in varying degrees of mess and muddle. We should start by reforming the smaller and more manageable sections as a step on the way to improving the whole system.
My Lords, I thank the noble Lord, Lord Ramsbotham, for initiating this debate on the need for changes in the way we deal with women in trouble. I said much the same to him when I spoke in his debate on this subject in June 2006 and I said much the same to the noble Baroness, Lady Gale, when I congratulated her on her debate in October 2004. Many of us who are here today participated in both these events. We are now in 2008 and we have someone else to thank. I refer to the noble Baroness, Lady Corston. Her report is very good, a model among such reports, and it is already seen as a standard text around the world.
First, it is a model because of its starting point. It starts by finding out what is the purpose of the service being analysed. Who is it for? The noble Baroness started her work by finding out about the women who are imprisoned. She also sought the views of those who are doing the imprisoning and she builds up her conclusions from them.
Secondly, she consulted widely and looked at all the research that has been done over many years. I am sure we are all very grateful to the noble Baroness, Lady Bottomley, for speaking in the debate and for so ably summarising the research for us. Thirdly, the noble Baroness’s report is imbued with a strong sense of justice and a very strong dislike of injustice. She accepts that efficiency and good administration are important, but in the Corston report justice is the bedrock. Would that others who produce reports for the Government bore in mind these three essential points. First, what is this service being provided for? Who are its recipients and does it serve them and society well? Secondly, what is already known about it? Thirdly, what are the ethical values that should underpin it?
It was through that process that the noble Baroness, Lady Corston, reached the conclusions that are common knowledge and widely accepted by all those who have studied this subject. These conclusions are, first, that imprisonment as an intervention in women’s lives is often highly damaging; secondly, that the separation from their children that this often entails is, to use the noble Baroness’s own word, “catastrophic”; thirdly, that most of these women are highly vulnerable and they should be getting the help they need, particularly for mental health and substance abuse in the places where they live; and, fourthly, that there should be more of the centres whose work is already proven that can help them. The noble Lord, Lord Hylton, described very clearly a model of such a centre. Finally, when they have to go to prison, they should be held in small units near their homes.
As the noble Baroness said, those conclusions are not new. They are what every report on the subject concludes. One has to ask the Government what the problem is with reforming the way we deal with women in prison. Or, if I may put it another way, why is it that when we want now local centres to which women can go to be helped, we get a “cross-departmental unit”? When we want now better access to local services, we get a “ministerial subgroup”. When we want as soon as possible small custodial units, we get a “project to examine”. When will another centre like the Asha Women’s Centre in Worcester, so much praised by the noble Baroness, Lady Corston, open? Will it be this year or next year? I will not go on to say “some time, never”. When will a diversion scheme be set up in a court so that the women who should be in treatment can get into treatment? Will that be this year or next year? When will sites be sought for the small custodial units that the noble Baroness, Lady Corston, recommended? Will it be before sites are found for the Titan prisons—I understand that that search is already under way—or will it be afterwards?
I, too, am very impressed with the stamina of the Minister, which is wholly remarkable. I apologise that I have asked so many questions and I look forward very much to his reply.
My Lords, it is a privilege to take part in a debate initiated by my noble friend Lord Ramsbotham. He and all the other speakers have brought great statistical insights to the debate and have helped us to understand how dreadful and compellingly awful the problem is. I had not intended to speak in the House this afternoon; it was not until I heard the excellent Julian Dee in the Cross-Benchers’ office regale us with some of the facts that my noble friend Lord Ramsbotham would use in his opening speech that I felt that I wanted to add my voice to those championing and campaigning voices that we have heard today.
This is an issue of great shame, on which we have to feel that action not only is long overdue but has been carelessly disregarded by the Government. We all know the facts, which have been cited in particular by the noble Baroness, Lady Bottomley, who led us through a despairing litany of statistics. We feel worse when we hear them and more fed up when we wonder why action is so far away. Report after report does not seem to change the intention to deliver.
We know what the facts tell us. Between 5.5 per cent and 5.8 per cent of prisoners in the English prison system are women; the figure is 4.4 per cent in Scotland and 2.2 per cent in Ireland. I do not want to distract us in any way from the subject of the debate, which is unbelievably important and must be acted on. Nor do I want to diminish the significance of focusing entirely on the need for a women’s justice board, to which I add my voice and my intention to give support. However, I will highlight just one sub-statistic. Behind the 5.5 per cent figure of women in prison, most of whom come from the majority population, is the fact that 21 per cent of women prisoners are black, even though black women make up just 1 per cent of the total population. About 13 per cent to 15 per cent, depending on the statistics that you read, of male prisoners are black, but 21 per cent of women prisoners are black.
A particularly difficult issue applies to black women as opposed to the general female population. As I say, this is not an occasion to distract from or undermine the significance of a women’s justice board, but we should recognise that we seem more able and willing to put away a particular coterie of our population and to treat them more harshly.
In 2003, the then Lord Chancellor and our first Justice Minister, the noble and learned Lord, Lord Falconer, said in response to a report that looked specifically at the circumstances surrounding black and Asian incarceration:
“The statistics show that people from the black and minority communities have a different experience of the criminal justice system both as defendants and victims. Whilst we have the data, it does not tell us why this is the case. The extent to which experience is caused by prejudice or because black and minority ethnic communities suffer from other factors which increase crime is unclear”.
This article on the BBC News website says that the report also includes figures, originally published in 2002, showing that blacks were eight times more likely than whites to be stopped and searched by police and that Asians were three times more likely than whites to be stopped and searched.
We all know of the frenetic and divisive exchange that took place yesterday based on who could put out the latest stop-and-search proposals. Of course, the victims of inappropriate stop and search remain largely those of the non-indigenous cultures.
All I wish to add to this critical and compelling point about the need for a women’s justice board is that at moments of reform and opportunity—my noble friend Lord Ramsbotham is calling for action, determination and reform—we should focus on the particularly difficult wrinkles of the problem. What about the possibility of a black Britons’ justice board that could recognise the difficult and painful additional circumstances of minorities in this country when faced with the police or the criminal justice system? That is a bone I throw to the Minister for him either to chew or to throw away.
As the chairman of Crime Concern, I have been pleased to work for many years with the Youth Justice Board and have seen how significantly it has changed the landscape of opportunity. It is, of course, underfunded, like any other government sub-department, and on many occasions underrecognised. But it has brought about essential advice on prevention and intervention, focus awareness, appropriate punishment and successful rehabilitation options. On the needs of black women, there is additional advice on sensitivity and sentencing that is not current in our system. I suggest to the Minister in the context of this vital debate that we take that factor into account.
My Lords, I thank the noble Lord, Lord Ramsbotham, with his vast experience, for introducing this debate.
In 1972, my former wife, Judith Garfield Todd, was imprisoned in colonial Rhodesia by the Smith regime. There was no question of a charge or a trial, and she went on hunger strike. She was taken to another prison, where she was force fed. Then she was put under house arrest. Judith was in prison for five weeks; for me, those five weeks were very, very long. The episode left me with an abiding interest in women prisoners.
Judith wrote that the superintendent of her first prison and his wife,
“were, on the whole, thoughtful and pleasant”.
That is precisely the impression I have of the prison staff at Holloway. My noble friend Lady Corston writes authoritatively in paragraph 2 of the Executive Summary of her admirable report:
“I pay tribute to the many dedicated, caring staff working throughout all of the criminal justice agencies, who strive every day to provide a decent environment and improve the well-being of the women in their care. I have been very impressed by much of what I have seen”.
As everybody who has spoken has said, in particular the noble Lord, Lord Ramsbotham, and the noble Baroness, Lady Howe, many of us have long advocated a women’s justice board, as proposed in the Wedderburn report in 2000. Now the Wedderburn report has been supplanted by the Corston report of March last year. At the heart of this report, as the noble Lord, Lord Ramsbotham, said, lies the proposal for a commission for women who offend or are at risk of offending. My noble friend Lady Corston says,
“there needs to be a strategic top level cross-departmental commission, headed by someone very senior—director level”—
I stress those words—
“with authority to direct work in hand relating to women in the criminal justice system, supported by sufficient staff from the various departments and agencies involved”.
Then, at paragraph 4.14, my noble friend writes that the Youth Justice Board has,
“been central in shaping and coordinating the complex web of agencies involved and has brought leadership, coherence and consistency to youth justice”.
It is now time to do the same for women, by establishing a strategic commission with the power to make things happen—I stress those words.
My noble friend Lady Corston’s formal recommendation about the commission begins:
“I recommend the immediate establishment of a Commission for women who offend or are at risk of offending, led at director level, with a remit of care and support for women who offend or are at risk of offending”.
The Government’s response of December 2007 accepts this recommendation in principle, and continues:
“The Government has agreed to the establishment of a new cross-departmental Criminal Justice Women’s Unit headed by a senior civil servant”.
I stress that last phrase. I applaud that the criminal justice women’s unit is already being drawn together, as I am informed. Unlike the noble Lord, Lord Ramsbotham, I applaud the Government’s announcement of a ministerial champion for women prisoners in the person of Maria Eagle, Parliamentary Under-Secretary of State for Justice; although, as the noble Lord, Lord Ramsbotham, rightly pointed out, she has so many duties that she will not have much time for championing women prisoners.
However, the great shortfall in the Government’s response concerns the leader of the commission. My noble friend Lady Corston’s linchpin was that the full-time champion for women prisoners must be at director level; in other words, a grade 2 or 3 civil servant. However, the Government have downgraded this to “a senior civil servant”. That could mean a grade 5 civil servant who simply would not have the clout or authority to make things happen, where a director-level civil servant would have. I ask my noble friend the Minister to explain why the Government have rejected my noble friend Lady Corston’s explicit and convincing recommendation of a director-level leader. Why have they substituted “a senior civil servant”? Will the Minister take this key matter back to his ministerial colleagues and ask them to think again?
My Lords, towards the tail end of this debate, in which so many of your Lordships have spoken so eloquently, I shall reflect on a few things that have been said; notably, what the noble Lord, Lord Acton, has just said, and what my noble friend Lord Ramsbotham said about the leadership required.
I was put in mind of the Government’s decision in 1998 to appoint Louise Casey as the tsar for homelessness. The Government set her a clear target: to reduce homelessness to one-third within three years. Louise Casey was absolutely ruthless: she knocked together the heads of all the organisations involved. I spent time in a winter hostel for homeless young people. Before her arrival, much was to be demanded and better was to be expected of it. A year after she had been in post, it had been transformed: the best professionals were looking after these vulnerable young people. The Government are much to be commended on this.
It was clear in this case that a large amount of political capital was laid on the outcome of achieving this reduction in homelessness. Louise Casey is quite an exception as a civil servant because she is prepared to be so outspoken. I think that the Government have recognised her unique qualities by placing her at the head of the Anti-Social Behaviour Unit. That is one reflection on what has been said so far.
My second reflection is on two related things: one is sentence inflation, to which my noble friend Lady Howe alluded. I remember being in your Lordships’ House as we debated increasing the tariff for adults who commit murder—I hope I have that right. It was argued that by doing so one would ratchet up sentence lengths throughout the system—I hope I have that right, too. The question then was: since we are raising the tariff for adults, should we not raise the tariff for children? The Government were very serious about increasing the length of sentences for children who kill. The psychiatrists and other experts working in this area told me that if this was done, all the good work that they do with children under 18 in special provision would be undone when they entered adult provision. We had to try to prevent this from happening. Fortunately, we were successful. Two things come from that; if there is a separate arrangement for women, there is at least a chance that they might be separated from any further ratcheting-up of sentencing for men. This is another example of what the noble Baroness, Lady Bottomley, said; women are lumped together with men and treated as if they had the same issues, and it is just not right to do so.
Action for Prisoners’ Families, led by Lucy Gampell, provided me with the words of a mother:
“On Thursday 14th June 2004 I was sentenced to a 7-year jail term. Within 48 hours my son was bedwetting again, within 96 hours he was too scared to go to sleep in case his Grandmother left him whilst he slept. Children with a parent in jail go through a sense of almost-bereavement however the stigma related to having a parent as a criminal takes away their dignity to mourn.
“Within a month of my sentencing he went from being the brightest in his class to falling behind so badly that he was almost kept back a year … During my time in prison I was fortunate enough to be able to call my son every other night and write to him the days I didn’t speak to him. His father brought him to visit me once a month but best of all we had children’s visits in prison every school holidays. These allowed us to spend time together as mum and son, to talk, to play, to hug and just to be. These were so important to me but I could never express in words the extent of the importance of these days to my son Maxy. He would count down the days between these children’s visits and would actually save up things to tell me and to talk about. These were Maxy’s special time, his time to know and feel my love for him, his time to recharge his self esteem and security, his time to be my little boy.
“I was released on 13 August 2007 … I am delighted to say that Maxy chose to live with me upon my release. I can place my hand on my heart and say that if it hadn’t been for the Children’s days we’d had together, when I was at Send and Downview I would most definitely have lost my son’s love, and my dream of him wanting and actually living with me as he does now would never have come true.
“On Monday just gone Maxy came top of his class in his maths examination … But he still sees a child psychologist once a month to help him rid the demons of his nightmares that my stupidity created but he’s getting there and I am so proud of him … Today there are tens of thousands of children with a parent in jail hurting just as much as Maxy if not more so, there are likely to be even more children in this position tomorrow, many have no one to hear them and no one to love them, we need to help these children for they have done nothing wrong”.
I draw the attention of noble Lords to another letter forwarded to me by the APF written by a 16 year-old female whose mother is in prison:
“I didn’t tell anyone, not friends or school. Teachers know now, because my behaviour deteriorated. A social worker got involved and informed the school. I told one friend who then told the whole school, who then stopped talking to me. Another girl supported me because her mum was in prison too. I dropped out of school for six months and left early without taking my GCSEs. I then got a job in a nursery”.
This is a letter from two sisters, aged 15 and 13, whose mother is in prison:
“She mustn’t think we don’t love her … if we don’t keep in touch she will think we don’t love her and she will harm herself again”.
Children have a right to contact with their parents under the UN Convention on the Rights of the Child. All our instincts tell us that this is so. Only today the newspapers and Lord Justice Munby have reminded us of the gravity of separating mother and child. Why then do we permit our criminal justice system to do it apparently so frequently and freely? We need an independent commissioner for women’s justice to right this wrong.
My Lords, I am grateful for the opportunity to speak in the gap, which I think is due to a computer glitch. I pay tribute to my noble friend Lord Ramsbotham for what he has said today. I wholeheartedly support his thesis and that of the noble Baroness, Lady Corston, whose report we have all so admired in the debate. As a psychiatrist, noble Lords will not be surprised that I want to talk about mental health and drug misuse problems, which are often the cause of these women’s criminal activity and a consequence of the abused chaos of their lives. I will not spell out the epidemiology because the noble Lord, Lord Dholakia, and the noble Baroness, Lady Bottomley of Nettlestone, have done that so admirably, and besides, I am speaking to a group of noble Lords who are very well informed and wise about these issues.
We cannot take away the tragedy of the abusive and unloving childhoods that often precede addiction, chronic distress and inadequate personal relationships. We do not have any miracle cures for many of the mental health problems these women face, but we can at least try to stop making them worse. We can take seriously the notion that we need to innovate and find different ways of intervening, and then evaluate them properly. Perhaps I may describe a handful of problems that have been mentioned to me in the past few days. As we try to tackle them, we realise that we know far less than sometimes we pretend about the research into what works. The recommendations of the noble Baroness, Lady Corston, are very sensible and are based on the current evaluations of small and community units, but I want to stress that we need far more co-ordinated research into interventions.
A huge amount of thinking and considerable investment by both the Department of Health and the Ministry of Justice, and before that the Home Office, have gone into initiatives to reduce harm. Yesterday I talked about some of these issues with my colleague at St George’s University of London, Dr Annie Bartlett, the lead clinician on mental health at Holloway prison—not perhaps the most typical prison; indeed, it is a rather unusual one—where serious efforts have been made to try to address some of the most difficult issues. Among many of the overarching problems, she pointed out the difficulties of engaging these women in treatment programmes. It is no easy matter. For some women, the comfort zone of abusive relationships is as addictive as the drugs they have come to depend on. The drop-out rate on the outside from what start out as good counselling relationships inside prison is very high. It is a difficult problem. More investment in extra time and places in the community with increased numbers of staff are required to try to engage with and keep these women in treatment.
We know that half the women leaving prison have no GP and that GPs are reluctant to take women on after their release from prison, yet they desperately need that supportive primary care which is now available to quite a lot of women inside prison. Perhaps we have to coerce GPs to take them on with direct funding, as we so often do in other areas.
The noble Baroness, Lady Corston, rightly emphasised the need for a community-based alternative, and my noble friend Lady Stern gave us a marvellous example that I would like to see repeated. But we must also remember how we approach seriously addicted drug misusers who at present often get an opportunity to detox in prison. We must think about what kind of appropriate residential treatment facilities are needed to help at that point. Creative thinking is required about needle exchange programmes, which have been successfully introduced in a number of women’s prisons on the continent. I believe that Hindelbank prison in Switzerland provides syringes on a one-for-one basis by automatic dispensing units. This does not help addiction, of course, but it does help to reduce the harm of infection spread.
We know that cutting and self-harm need a whole-prison approach but it is difficult to do that across the wings in a place like Holloway and some of our other prisons. We know, too, that we need a whole-prison approach for the prevention of suicide. That means the engagement of every single member of staff, not only those in the mental health units. Tinkering around the edges and trying to establish therapeutic regimes in an alienating punitive environment is unlikely to make much headway.
We need to get one group out of prison fast, and that is the 10 to 14 per cent of prisoners who have a psychotic illness—an horrendous figure. The noble Lord, Lord Ramsbotham, and I are uncertain about this. He would like to see the Mental Health Act recommendations implemented in prisons; I am ambivalent about that. Far better, it seems to me, would be to get them out into proper units where they can be treated in a therapeutic regime. A custodial environment cannot be right for someone with a psychosis. That is what forensic units are for. They must accept not only Crown Court cases but women who have a psychosis, however it was determined that they should receive treatment.
For most of these women we do not know enough about how best to help them and how to help society by reducing their reoffending. We need to allow a thousand flowers of alternative types of provision to bloom. We do not know enough to say that one only is the alternative. We need much more evidence-based research.
I am rapidly running out of time. I suggest that the only way we are going to get a comprehensive strategy is to think through what we pilot and where and what problems should be tackled, on a comprehensive basis, before offending, during offending and in aftercare. A women’s justice board could look at these problems across the piece, carry out trials and encourage innovation in the whole area of the criminal justice system for women.
My Lords, we, too, thank the noble Lord, Lord Ramsbotham, for his tenacity, energy and clear-sightedness in pursuing this matter over the years that he has been in this House. I am grateful because he has given us an opportunity to look at this case.
We need to ask why we are having two debates within a week of each other on this issue. The answer is quite simple but it will not be welcomed by the Minister. In my book, there is a distinct lack of will within government to address this issue, and that is why we are having the two debates. Let me spell it out: the evidence is in the chronology of that excellent Library note to which the noble Lord, Lord Ramsbotham, has already paid tribute. It bears repeating, so I shall repeat it. Wedderburn came out in 2000 and various Ministers and senior judges gave their endorsement, but not very much happened. There were consultations but they led nowhere. The increasing numbers of women in prison—and the increasing numbers of women dying in prison—then brought the issue to the forefront. That is the way it happened.
The result was that the Corston review was commissioned in 2006, was asked to report by the end of that year and did so in early 2007; the Government’s response, as many noble Lords have commented, came out nine months after the report was published. Now, nearly a year after the Corston report, we will have a debate next week—instigated, I understand, by the noble Baroness herself and not as part of the Government’s priorities for action.
After 10 years of power, after eight years of obfuscation on the calls for a women’s justice board, after 19 months spent before we have a debate on the proposals that are on the table now, one does not have to be a genius to work out that there is little will here to do something about one of the most vulnerable groups in society—women in prison.
As we have a debate on the Corston report next week, I shall save my detailed observations until then and concentrate here on some broad-brush reasons for why we must move forward to a separate, stand-alone body to deal with women in the criminal justice system. We have heard compelling accounts from some of the most eminent experts in the country today—most of them in this Chamber—about why this step is necessary. The facts speak for themselves but are wholly counterintuitive; for example, more women are incarcerated in penal institutions than men, yet considerably fewer commit crimes. We are frequently told that crime is going down but, at the same time, that we need more prisons for more people to be locked up. We are told that the rights of the child are paramount—as the noble Earl, Lord Listowel, just said—yet we see 18,000 of them separated from their mothers who are sent to prison, many to be made homeless as a result.
It is as if that simple strand of logic, cause and effect, is completely suspended in this area of government policy. It is as if the recognition that women have separate, specific personal and environmental factors that bring them into the criminal justice system—it runs through the Corston report—did not exist. It is often the case that they have drawn the short straw in life. The noble Baroness, Lady Howe, drew our attention to the severity of sentences for foreign women. It is a mixture of gullibility and poverty that makes them become criminals. Locking them up far from home cannot be the answer.
The noble Lord, Lord Hastings, told us about the levels of prejudice that result in the large numbers of ethnic minority women prisoners. A further problem faced by some ethnic minority women—those from Asian communities—is that within those cultures there is real stigma attached to imprisonment, hence the almost inevitable break-up of family as they are spurned by those nearest and dearest to them on release.
I turn now to the compelling and well thought- through case for a women’s justice board. I have indicated that I will not speak on the Corston report today, but I must make reference to it as it might be offered up as the alternative. For me, the argument of principle that gender equality and mainstreaming are the answer is profoundly wrong. It is rare for me to call for special treatment for women as I am a champion of equality, and I wish there were no need to do so. I wish we had a situation where equality of respect, as identified by the noble Baroness, Lady Corston, was sufficient, but it is not.
Women need different treatment because of who they are. The profile is substantively different in terms of their offences, their personal circumstances and the effects on them of incarceration. They may be broadly similar to male prisoners in socio-economic terms, their education or even their drug dependence and alcoholism, but broad similarities of that nature do not address the profound emotional, psychological and physiological differences that affect the outcome of a mainstreaming regime. Hence the need for different approaches, all the way from risk of offending, through court systems, to probation and resettlement.
The noble Baroness, Lady Corston, appears to believe that these substantive differences call for a different approach. So far, so good. The problem arises not with her diagnosis, which is insightful, but with the therapy advocated. The logic of leaving the strategic direction in the control of politicians through myriad interdepartmental committees and sub-committees is flawed. No strategic change can be delivered by the same people in the same position but now sitting in different rooms and on different chairs. That is not to say that there is a flaw in having interdepartmental oversight and direction per se; an interdepartmental committee formed to work through the practical implementation of change, which is needed through different government departments, makes complete sense, and an action plan is entirely welcome. It cannot, however, substitute for a properly resourced, independent body that reports annually and comprises independent people rather than political representatives of the day. The flaws of that have been highlighted so adequately by the noble Lord, Lord Ramsbotham. I say that in the particular recognition that criminal justice is not a popular cause; it does not affect large numbers of the population in any positive way, and delivers few bouquets to those who work in it. This area is, therefore, most susceptible to Treasury belt-tightening, to departmental atrophy and to reactive rather than proactive policy.
The Minister is, no doubt, going to tell us that setting up a separate women’s justice board would entail significant time and effort, and that the system advocated by the noble Baroness, Lady Corston, provides a more suitable alternative. I am sure that we will hear that that alternative will be easily implemented, and be able to get to grips with the matter almost immediately. That may well be true, which is why we welcome the establishment of an interdepartmental committee. That committee will give political direction to an area badly in need of new policy solutions, many of which, as we have heard throughout our debate, have indeed been on the table for a long time. Yet it will not substitute for the stand-alone, independent voice that a women’s justice board would provide; that is the best long-term solution to a problem that will be with us for a long time, if experience is anything to go by.
My Lords, I offer my commiserations to the Minister, who is about to have to wind up his second debate of the afternoon, having faced, I think, two generals, three former chiefs of staff and, no doubt, a great many other experts earlier. He has come on to this debate on prison matters, which has also produced some of the House’s best experts, and next week alone he has two days in Committee on the criminal justice Bill, as well as a repeat of this debate next Thursday, when we come to debate the report of the noble Baroness, Lady Corston. That debate will follow a fairly similar line to this one, although we shall no doubt see the noble Baroness herself there, since it is her debate.
Secondly, I offer my congratulations to the noble Lord, Lord Ramsbotham, on bringing in this debate, initially because of its timely nature, being only the day after the launch of the annual report by HM Chief Inspector of Prisons. I trust that the noble Lord, Lord Hunt, will also welcome a debate on that report in due course—he nods sagely at that suggestion. In touching on that, what response will his Secretary of State, the Lord Chancellor, be making to that report and when? Will we have to wait another six months?
This debate is also timely because it comes so soon after the delayed government response, which came in December, to the report by the noble Baroness, Lady Corston. I have already touched on the second point on which I wanted to congratulate the noble Lord, Lord Ramsbotham, which was the very quality of those that he has attracted to speak in this debate. It is welcome, for those of us who are relatively new to penal matters, to have quite such expertise in your Lordships’ House, and he has brought that before us.
I also congratulate the noble Lord on his persistence—or tenacity, as my noble friend Lady Bottomley put it—in taking on this matter and in continuing to do so. He went through the history of it, some of it dating back before 1997, but I think that his first suggestion of a women’s justice board came some time later, in 1998 or 1999. That takes me on to the Government’s position. Like the noble Lord, I congratulate the Library on its excellent briefing note, by Chris Clarke, for this debate. Like the noble Baroness, Lady Falkner, I think that it is worth repeating where the Government have, or have not been, over the years in this matter. Reference was made to the Minister’s noble friend, the noble Lord, Lord Rooker, and to statements that he made at an earlier stage. We all know that the noble Lord, Lord Rooker, is a free spirit in his responses if ever there were one. We remember what he said back in 2004, when he was a Minister in the Office of the Deputy Prime Minister. Referring to these matters, he said:
“I supported it from this Dispatch Box when I was a Home Office Minister. It has still not been brought about, but I think that we are doing it in all but name. The proof will be in the pudding”.—[Official Report, 28/10/04; col. 1481.]
Well, some pudding. Perhaps the Minister can let us know a bit more about the development of that pudding in due course when he responds. Two years later, another Home Office Minister—she was in the Home Office then, but she is now the Attorney-General—the noble and learned Baroness, Lady Scotland, stated clearly:
“There are no current plans to create a national women’s justice board”.—[Official Report, 1/2/06; col. WA 52.]
We then had the Corston report and the Government’s response to it. As has been made clear, the Government have responded relatively positively in a number of ways, although they have left out some of the more crucial aspects, to which I shall come when I deal with the few questions that I want to put to the Minister. If I cannot get through them all, I have no doubt that I can repeat some of them in a week’s time when we have the same debate again, and when the Minister will, I presume, have a little more time to respond to all those who have spoken.
I was grateful to my noble friend Lady Bottomley not only for stressing the importance of the debate but for offering to relay it to my colleague, Nick Herbert, the shadow Secretary of State for Justice. I also will make sure that he is fully aware of it, and of the Government’s response to it and to the debate next week. I have no doubt that he will take note of it in the review of prisons and sentencing that he is conducting within our shadow team.
I turn to the questions. As has been made clear to the Minister, there has been a large increase—some have estimated it to be threefold—in the number of women imprisoned during the past 10 years. Women now represent a significant minority inside our jails. What factors do the Government think have contributed to this large increase? Does the rise not demonstrate that a distinct, women-centred approach might be necessary given the obvious and peculiar vulnerabilities of women in prison? The Minister can respond to those questions either today or next week, when we deal with the recommendations of the Corston report which his department has accepted.
My second question relates to Titan prisons and women prisoners, and follows on from the questions of my noble friend Lady Bottomley. It has been reported that, in 2004, around half of all women in prison were held more than 50 miles from their home town, and a quarter of them were held more than 100 miles away. Does the Minister concur with the Corston report’s recommendation—to which the Government were strangely silent in their response—that female offenders be housed in small, local jails connected to their communities and families, where they would have a better chance of turning their lives around? What plan do the Government have to implement that strategy now that they are talking about introducing the three, huge, 2,500-inmate so-called Titan prisons? Where are we in relation to the Titan prisons, given the comments made by the Prime Minister and the Lord Chancellor only yesterday or the day before? All of us would like to know. Initially, the Government responded very rapidly to the Carter recommendations for Titan prisons. However, they seem to be—dare I say it?—watering themselves down by the minute.
Despite the reforms introduced by the Criminal Justice Act 2003—no doubt parts of that will be amended during the passage of the current criminal justice Bill—community sentences, which are very much recommended, are still breached with alarming frequency and offenders seem to be consistently directed towards disposals that do little to reduce their reoffending. If the Government implement the Corston recommendation that community-based punishment for non-violent offenders should be the norm, how do they intend that magistrates will deal with persistent petty offenders? Why is it that despite the Government having been in power for 10 years, community sentences are still so ineffective that very often magistrates have no alternative but to imprison very persistent female offenders? Again, is this not a matter of lack of resources provided by the Government?
I am approaching my limit. I will want to put many other questions to the noble Lord and I shall no doubt find time to do so in the debate next week, when I hope that we shall all have slightly more time. Certainly, noble Lords have given him quite enough material to respond to in this debate. I look forward to seeing him again across the Dispatch Box in a week’s time, if not earlier on other matters.
My Lords, I thank the noble Lord, Lord Henley, for his commiserations. I regard this debate as limbering up for next week. I am sure that we all look forward to coming together to discuss these important matters. I particularly thank the noble Lord, Lord Ramsbotham, for his perseverance in enabling this debate to take place today. I very much accept the substance of his comment that we need to maintain momentum. I believe that our response to the Corston report will do that. I also believe that the management arrangements we are putting in place will achieve what he wants to achieve, but we will debate that in a moment and in the months ahead. We shall debate Corston in general next week but clearly it is very important and the progress that we make following its publication will be monitored very carefully by your Lordships’ House.
The point made by the noble Baroness, Lady Falkner, about the two debates was also made in the previous debate on war powers. The Government do not allocate time for debates; we have the usual arrangements. It is not in the Government’s gift to allocate time.
My Lords, I thank the Minister for giving me an opportunity to come back on this. When he reads Hansard tomorrow he will see very clearly that I did not use the words “government time”; I said that the Government did not accord this matter priority in the months after the Corston report came out.
My Lords, I am sorry, I misunderstood the noble Baroness. Of course, I do not accept that. Just because some months are taken to respond to a report does not mean to say that it is not important. The report of my noble friend Lady Corston contains many recommendations. The fact that the Government have accepted almost all of them and have commanded more work to be undertaken in certain areas shows that the report is taken very seriously indeed.
As regards having two debates in two weeks, I believe that it would be much better to have a full five-hour debate which would enable us to deal with the matter more effectively. However, the powers that be may learn from this in future. I know that my noble friend Lady Corston is sorry that she could not be here today but we await her next week. I agree with the noble Lord, Lord Hylton, that it is very good to have an opportunity to encourage greater knowledge and awareness of the matters raised in the report.
What has come through in this debate, as I am sure it will next week, is something of the vulnerabilities which characterise many women offenders. We have heard about mental health problems, histories of violent or sexual abuse, drug misuse and anxieties about the care of children. I am acutely aware of the tragic consequences if those vulnerabilities are not properly addressed, not only for those women who self-harm or take their own lives but also for their children. The overall philosophy of the Government is that prison should be reserved for serious and violent offenders. This is particularly true for women. The overall thrust of our response to the Corston report is to improve community provision to make it more appropriate for women and to deal with problems earlier before these women end up in prison. There is no distance whatever between the Government and other noble Lords in this.
I say to the noble Lord, Lord Henley, that I read the report today with great interest. Obviously community-based sentences are much more likely to work effectively if breaches are dealt with. We need to look at this and see what further improvements we can make, working with the magistracy as well. My experience in the months that I have held this position is that there are many examples where community sentencing can work very effectively. We just have to build on that.
I can see a debate about NOMS coming on us one Thursday soon. On the question of the relationship between probation and prison and the fact that Phil Wheatley—the Prison Service’s current director-general—has been appointed chief executive of NOMS, it is not a question of prison domination over probation. I want to make that clear to noble Lords. It is much more about pulling the services together and giving the kind of integrated provision that noble Lords want. If there is an opportunity to debate NOMS, I will be very happy to do so. I pay tribute to Phil Wheatley for his work, with which I have been very impressed. I also acknowledge the very kind remarks of my noble friend Lord Acton about staff. He mentioned working in Holloway but also in other parts of the Prison Service. I know that we all have concerns about issues such as quality of service and the availability of particular provision, but there has been a vast improvement over the years in the contribution that staff have been able to make. We must acknowledge this whenever we can.
Let me address a number of specific questions before I come onto the issue of governance. The noble Lord, Lord Henley, asked me about the distance from home of women prisoners. He is right to acknowledge that this is a major concern. I have data showing that the average distance from home of female prisoners is 58 miles. Obviously, that has a considerable impact on prisoners and their families. That is the very reason why my noble friend Lady Corston made her proposals in relation to the women’s custodial estate, particularly the question of small local custodial units.
The Government have set up a project to consider this because inevitably there are considerable challenges in establishing those units. My noble friend is recommending a significant change in the way that the women’s custodial estate should be organised. She suggests that it should be implemented over the next 10 years, so we have to see how this can be done and look at the resource implications, but we are taking it forward. I believe that we are doing that in a way that is consistent with the reports of the noble Lord, Lord Carter. Of course I have read with interest the comments of the chief inspector. We gave our initial response yesterday, but we will respond further in due course, although I cannot give the noble Lord the date—he would not expect me to, but he always asks me these things.
I realise that the concept of Titan prisons has perhaps not gone down well with Members of your Lordships’ House. It feels like we are debating the Mental Health Act again; one feels rather lonely here. But, as I explained, Titan prisons offer some considerable advantages in being able to develop quickly in areas where there is a population shortage. We see that as building on the success of clustering small prisons together; for example, at the Isle of Sheppey. I have said previously that it is perfectly possible to have smaller units within a campus with the advantage of efficient use of resources and design to get the best of both worlds. I fear another debate on Titans coming one Thursday. We are committed to the Titan project. We will be developing our plans. We hope that we can do it speedily, but that has to be seen in parallel with the review we will undertake in relation to small local custodial units for women prisoners.
The noble Baroness, Lady Murphy, made some interesting remarks on mental health and I very much agreed with her comment on the need for more research regarding interventions and integration post-custody. Those were valid points. Like me, she will probably look at the research budget of the NHS and compare it with research in other parts. It would be very good to get access to more research funds. My noble friend Lord Bradley is undertaking a review of how offenders with mental health problems and learning difficulties can be diverted from prison into other appropriate services.
I know that my noble friend Lady Corston will be meeting my noble friend Lord Bradley. I hope that other noble Lords here will take the opportunity to make themselves known to my noble friend. I shall ensure that the contents of this debate are made known to him, because I regard his work as being of great importance, not least because it is a joint Department of Health and Ministry of Justice report. If we can get much more tie-in from the health service, that would surely be a way for us to deal with chronic and persistent problems of prisoners in general, and particularly those with severe mental health problems.
I ought to address the question that the noble Lord, Lord Ramsbotham, raised on the organisation of government to ensure that the recommendations that we have accepted are put into practice. I have no doubt whatever that we have to produce a set of arrangements to make sure that action takes place. I assure noble Lords that although we may disagree on whether we have a women’s justice board, the need for action is not in doubt. Since I have long experience of restructuring in another part of the public sector, it is not a question of structures that counts here, it is a question of will and determination.
My noble friend Lady Corston did not recommend the creation of a women’s justice board—she said it was neither necessary nor desirable. Noble Lords will know that the Government have previously argued against the need for a women’s justice board. That remains our position, based on the fact that there is no separate framework in law for women, as there is for young offenders. I was very interested in the comment of the noble Baroness, Lady Falkner, on gender equality. I understand what she said, but I am not sure that the Government can go along with her. We believe that the gender equality duty of April 2007 does not allow for any system to be established that would create inequalities in the treatment of men and women. We believe that the creation of a separate sentencing system, with different responses for women who have committed similar offences to men, could not be justified under the gender equality duty. But we do know, as the noble Baroness, Lady Corston, has identified, that inequalities exist because the criminal justice system is designed primarily for men. This point was made very well by the noble Baroness, Lady Bottomley. The gender equality duty should be used to redress that imbalance. This will be done partly through governance arrangements but also by the publication of a gender equality plan, backed up by a performance-management structure.
The noble Baroness, Lady Falkner, is right—one advantage of the interministerial group is that it can be set up very quickly. It brings together Ministers from the various relevant departments and includes my honourable friend Maria Eagle. I know that cross-government working sometimes produces frustrating cross-departmental meetings and there is some doubt about what it delivers. I understand those concerns, but it can be made to work and anyone who knows my honourable friend Maria Eagle will know that she is an extremely good and determined person who will make it work. The point about having different government departments involved is that nothing will work effectively unless the relevant government departments are all committed. I think that ministerial leadership here is an essential ingredient of success. I know that the noble Lord, Lord Ramsbotham, disagrees, but I think that there is real benefit in having a Minister as the champion, to give the drive that is evidently required.
We then come to the question of the sub-group related to this area. It has already met and will meet on a monthly basis. Its responsibility will be to look at progress in implementing our commitments in response to Corston. I know that the work of this group will also be supported by the Attorney-General and my right honourable friend Harriet Harman, the Minister for Women. So we have the right components of ministerial commitment and leadership.
My Lords, does the Minister expect that there will be a specific target for the percentage of women who are put into community settings rather than prisons, and a target for the number of local centres that will be set up within a specific time? Does he expect those targets to come out of the sub-group’s work?
My Lords, I do not think that I should commit myself, because the sub-group has only just started to work. I see where the noble Earl is coming from and I would certainly expect this sub-group to enhance a performance-management approach, where clear objectives are set and where there is then ministerial oversight. I hope that helps the noble Earl.
On the question of the official group that will support Ministers, noble Lords will know that we are proposing the establishment of a new unit headed by a senior civil servant. Again, there will be a debate between us about whether that person should be a director. However, my main point is that there will be a combination of ministerial leadership and a group of officials who will have the ability to make things happen. That is what the Government intend and we will ensure that it happens.
I have no doubt whatever that, if the lessons of Corston are to be put into practice, we must ensure that the official response works alongside the ministerial group and the ministerial champion. That will be enhanced by a national service framework, which will establish national policy for commissioning services for women offenders. I hope that that meets another point that the noble Lord, Lord Ramsbotham, has often raised with me—it is important to get the right balance between the local autonomy of those running the various services and the national policy and national framework. The noble Lord will recognise that national service frameworks are well known to us in the health sector. They have been extremely useful in getting a very clear picture of what services should be provided locally and in allowing people at the local level a certain degree of autonomy in putting them into practice. I think that that combination, alongside ministerial leadership and a committed group of officials, will lead to implementation of the Corston report.
We all have time to regroup. I am sure that next week we will come back with new and exciting ideas. In the mean time, I again thank the noble Lord, Lord Ramsbotham, for his initiative.
My Lords, I began by saying that the Minister had been in action for three and a half hours; it is now five and a half hours. We had a military analogy earlier and perhaps I may close with one. I am very glad for his sake that he is now approaching R&R, which stands for “rest and recuperation”. I thank him for the tone and spirit of his reply. Once again, as so often in this House, we respect and admire the full, frank and meaningful way in which he set about his task. I also thank all those who have spoken for the breadth, wisdom, humanity and good sense that made up their contributions.
In analysing what has been said, probably five general themes have come out of the debate. First, there is a general welcome for the excellence of the content of the report of the noble Baroness, Lady Corston. Secondly, there is a feeling of frustration that this is not a new issue but something that has been raised over and over again by different people, and the frustration is that it is still having to be raised. Thirdly, I detect a universal desire that something must happen to change the situation but, fourthly, a slight feeling of despair that, yet again, it has been suggested that the Minister in charge and the groups of civil servants—we have already had Ministers in charge and groups of civil servants—will deliver. Fifthly, there is a plea for a change in that approach so that at last something will happen.
I conclude by mentioning a precedent to the Minister. In 1994, there were escapes from the high-security Whitemoor and Parkhurst prisons. The then Home Secretary employed two outsiders, Sir John Woodcock, a former Chief Inspector of Constabulary, and Sir John Learmont, who was a general, to write a report. They recommended that the situation that existed in the high-security prisons—it was the same sort of situation that we have been debating—could be solved with the appointment of a director responsible and accountable for what went on in those prisons. The Home Secretary accepted the recommendation and the director was appointed, and there is absolutely no doubt that there is a coherence and a consistency in the high-security prisons that exist in no other part of the system. It is interesting to note what developed in that system as a result of that appointment. I point that out merely because it is a precedent for what we are all seeking for this very vulnerable group which concerns us all.
I thank everyone for taking part and beg leave to withdraw the Motion for Papers.
Motion for Papers, by leave, withdrawn.
Large and Medium-sized Companies and Groups (Accounts and Reports) Regulations 2008
rose to move that the draft regulations laid before the House on 17 December 2007 be approved.
The noble Lord said: My Lords, we are here today to debate three sets of regulations to be made under the Companies Act 2006—the Small Companies and Groups (Accounts and Directors’ Report) Regulations 2008, the Large and Medium-sized Companies and Groups (Accounts and Reports) Regulations 2008, and the Companies Act 2006 (Amendment) (Accounts and Reports) Regulations 2008.
I begin by setting these draft regulations in some sort of context. The Companies Act 2006—which a number of noble Lords will remember with affection—will help business reap the rewards of simpler, clearer and more cost-effective legislation in more modern language. It is a major part of the Government’s better regulation simplification plan and will reduce annual administrative burdens on business by over £300 million. It has been necessary to put back final implementation of the Act from October 2008 to October 2009. Needless to say, the Government regret that this has been necessary, but I am certain we took the right decision in the light of the advice from the Registrar of Companies that he could not be absolutely confident that the necessary changes to Companies House systems and processes could be made in time.
Businesses need to be able to plan ahead with certainty. We have learnt the lessons from other major IT projects, both within and outside government, that delays in decisions can greatly increase costs and inconvenience for users. It is also important to emphasise that many of the key provisions of the Companies Act 2006 will be commenced in line with the timetable announced in February last year.
A large number of important provisions, including most of the statutory statement of the director-general’s duties and the enhanced business review, were commenced in October 2007. Another important tranche, including the accounting reporting provisions, will be commenced with effect from 6 April 2008. I am also pleased that it will still be possible to commence some provisions, of particular importance to business, in October 2008, including the new solvency statement route for capital reduction by private companies. Part 15 of the 2006 Act concerns company accounts and reports. It will come into force on 6 April this year, applying to financial years beginning on or after that date. Part 15 confers powers on the Secretary of State to make regulations as to the detailed form and content of the accounts and reports of companies.
The first two regulations—the small companies regulations and the large and medium-sized companies regulations—replace the 11 accounting schedules to the Companies Act 1985 and their equivalent in the Companies (Northern Ireland) Order 1986. These schedules to the 1985 Act and the 1986 order set out the detailed contents of the accounts and the format in which they must be prepared. They cover specific types of disclosures or apply to certain categories of companies. Not all schedules apply to all companies.
There is a logic in separating out the requirements in this way, so that each schedule deals with a different subject. Companies have got used to it over the years, but there is no denying it can be confusing, particularly for a small company. To work out what its accounts must contain, a small company must look at a minimum of four accounting schedules to the 1985 Act and possibly six. It will not to have to make all the disclosures required by some of those schedules, so it will need to look at the relevant section of the 1985 Act to work out which parts of those schedules are relevant to it.
When it came to restating the detailed requirements on the format and content of accounts and reports under the 2006 Act, we wanted to make things easier for all companies but particularly for small companies. Therefore, we have taken a different approach. We have proposed a single set of regulations for small companies. This gathers together in a single document all the requirements from the six accounting schedules to the 1985 Act that are applicable to small companies. This approach means that small companies will have to look in only one place to establish what they are required to include in their account and reports. They will not have to look through regulations that also apply to large companies and work out which parts apply to them and which parts do not. We believe that this approach has clear benefits for small companies. Indeed, stakeholders agreed; when we consulted, all those who commented supported the proposal.
We followed the same approach for all other companies, with a single set of regulations applying to large and medium-sized companies. This sets out the basic requirements applying to all companies other than small ones. It also contains the exemptions for medium-sized companies and the additional requirements for quoted companies, banking and insurance companies and group accounts. This approach has less obvious benefits for large and medium-sized companies and we considered other approaches, such as replicating the existing structure of the accounting schedules or making a separate set of regulations for each category of company. However, we believe that, in the long run, a single set of regulations with all the requirements in a single place will be easier for companies to use. When we consulted, the majority of those who commented supported this approach. Among those who did not, there was no consensus on a preferred option.
These two sets of regulations largely restate the requirements in the accounting schedules to the 1985 Act and the 1986 Northern Ireland order without changing the substance of those requirements. However, the regulations make a small number of substantive changes to the accounting requirements. For all companies, the threshold for disclosure in the directors’ report of political donations and expenditure and charitable donations has been raised from £200 to £2,000. A new disclosure requirement for donations to independent election candidates has been introduced, consequential on new provisions in Part 14 of the 2006 Act.
For all companies that prepare consolidated accounts, a few minor technical amendments have been made to address the potential for differences in the context of UK accounting standards being converged with international financial reporting standards by increasing flexibility. For medium-sized companies preparing abbreviated accounts for filing at Companies House, the exemption from disclosing turnover in the abbreviated profit and loss account that they file with the Registrar of Companies has been removed. However, there is still exemption from disclosing detailed particulars of turnover in the notes to such accounts. For quoted companies, there is a new requirement to report in their directors’ remuneration report on how they have taken into account pay and employment conditions elsewhere in the group when setting directors’ pay. This requirement will be applicable to reports for financial years beginning on or after 6 April 2009.
These two sets of regulations also have a function beyond restating the accounting schedules to the 1985 Act. Together with the third set of regulations that we are debating—the Companies Act 2006 (Amendment) (Accounts and Reports) Regulations 2008—they implement European directive 2006/46/EC, which amends the European accounting directives. The measures in this directive are intended to contribute to EU market confidence, encourage cross-border investment and facilitate cross-border access to capital. It is important to get the right balance between ensuring that proper disclosures are made and not imposing undue burdens on business. We believe that we have done this.
To that end, these two sets of regulations give all companies—small, medium and large—the option of including a wider category of financial instruments in their accounts at fair value than is permitted under the 1985 Act. They also impose a new requirement on large companies to make certain disclosures about transactions with related parties; small and medium-sized companies are exempt from this disclosure.
The Companies Act 2006 (Amendment) (Accounts and Reports) Regulations 2008 contain further implementing measures for the directive. They increase the thresholds defining small and medium-sized companies for accounting and reporting purposes and the audit exemption threshold for small companies. They also impose a new requirement for companies to make certain disclosures about off-balance-sheet arrangements in the notes to their accounts. Small companies are exempted from this requirement and medium-sized companies may limit disclosure to information about the nature and business purpose of such arrangements. Finally, this set of regulations makes a number of technical improvements and corrections to Part 15 of the 2006 Act.
In conclusion, the regulations are an important part of the implementation of the Companies Act 2006. They make a small number of substantive changes to the accounting requirements under that Act but primarily they restate the detailed requirements on the format and contents of accounts in a way that will be easier for companies, particularly small companies, to use. I beg to move.
Moved, That the draft regulations laid before the House on 17 December 2007 be approved. Sixth Report from the Statutory Instruments Committee.—(Lord Bach.)
My Lords, I thank the Minister for introducing the regulations. He was lucky to escape having to deal with the monster that is now the Companies Act 2006 when it went through your Lordships' House, but I imagine that in his current role he is becoming all too familiar with its aftermath.
I am tempted to say that the regulations are strictly for accountant anoraks. I think that the noble Lord will be aware that I am a chartered accountant by profession, but I assure him that I do not qualify for anorak status. So I will not be undertaking a line-by-line critique of the regulations, for which I am sure the Minister will be grateful.
Let me start with some support for some aspects of the regulations. When dealing with the Companies Act 2006, the Government undertook to think small. We fully supported that and I applaud the separation of the reporting requirements for small companies in the regulations on small companies. We think that that is the right approach.
I support the raised thresholds in the Companies Act 2006 (Amendment) (Accounts and Reports) Regulations 2008. I can remember when the small company thresholds were first raised eight or nine years ago. There were predictions that great harm would ensue in various ways but, as far as I am aware, no harm has ever ensued. So it is entirely right that we should continue to increase the thresholds. The Government estimate that this will produce an annual benefit of around £37 million, largely through reduced audit fees, as more companies fall below the threshold for obligatory audit. I was never convinced that the earlier changes produced much in the way of cost savings to companies, and I am not much convinced by these figures. The Government assume that fees called “audit” will not be incurred as accountancy or other fees. However, I shall not object to the regulations on the basis that the department has over-egged the savings figure because I do not see audit as a value-adding activity for the majority of small companies below the threshold.
I am aware that BERR has carried out consultation on these regulations, as it should; the Explanatory Notes indicate the range of responses that were received. The Institute of Chartered Accountants in England and Wales, which provided me with briefing for today and which responded to the consultation, while broadly content, reported that it has,
“emphasised to BERR that in view of the pace and volume of Companies Act 2006 material published we have not endeavoured to scrutinise each and every aspect”.
I do not seek to criticise the department or the Government on this, because I know that it is a difficult job to implement that huge Act in a reasonable timescale. But it is clear that the volume of new material has overwhelmed bodies which are usually expected to contribute at a high level on such drafts and consultations. If the anoraks cannot cope, there is certainly no hope for mere parliamentarians.
More seriously, the overwhelming volume raises the issue of unintended consequences. I am sure that the Minister is aware of some of the gremlins that are starting to emerge from the Companies Act where the sheer scale of the Act meant that his officials and outside commentators were stretched and missed things. I believe that the Minister said that one set of regulations contains some corrections to the Companies Act 2006. Issues have arisen outside the accounts parts of the Companies Act 1996. They are not large in number so far, as I understand it. Where they have arisen, however, some have caused genuine problems, so it is quite possible that these orders will have missed something or got something wrong. My purpose in raising this is not to berate the Minister or his officials, but to ask him to confirm that, if issues arise when they are actually translated into practice, the Government stand ready to make further orders if necessary.
The Institute of Chartered Accountants has also raised with me the issue of gold-plating. This is not a new point for these regulations, but perpetuates the fact that the existing accounting regulations go beyond those required by EU law. It is often far from clear that, if there ever was a justification for the gold-plating, there continues to be one. The institute would like to see a commitment from BERR to review the accounting requirements of the Act and the regulations, to identify and, I hope, eliminate any excessive requirements. I assure the Minister that these Benches would give any order reducing gold-plating the warmest of welcomes.
The Government’s response to the consultation on the corporate governance directive was published in July last year. In that document, the Government noted that they would be having discussions with the standard setters to agree what action needs to be taken in respect of UK accounting standards or the changes implemented in these orders for related party disclosures and off-balance-sheet transactions. Will the Minister now say whether any actions are required on UK standards? Will they require additional disclosures? Does that have implications for the relationship between UK accounting standards and international ones? I am sure that the Minister will agree that it would be undesirable for this order to open up new gaps between UK accounting standards and international reporting standards.
Lastly, I shall come to the one aspect of these orders that is unnecessary. As the Minister said in his introductory remarks, in the Large and Medium-sized Companies and Groups (Accounts and Reports) Regulations, the Government have introduced an additional requirement for the remuneration report of listed companies to say how they have taken pay and employment conditions elsewhere in the group into account when setting directors’ pay. This issue was raised during in Committee during the passage of the Companies Bill in 2006. The noble Lord, Lord Lea of Crondall, led the attack on directors’ pay in characteristic style and demanded a number of things, including worker representatives on remuneration committees. The Government wisely resisted that and the other suggestion that they get further involved in remuneration disclosures—for example, on the ratios between directors’ pay and that of the rest of the workforce. We supported them on that in Committee.
The new requirement in this order will add nothing to UK plc. It will add nothing of value to shareholders. It might satisfy the anti-corporate pay lobby which exists on the Government's Back Benches. I am afraid that it bears all the hallmarks of a concession made to the Labour Party's paymasters, the trade unions.
In fact, the particular issue is not of huge importance. Remuneration committees will devise some boilerplate wording to satisfy the new requirement. My concern is with the principle that the Government are legislating for some half-baked political reason rather than something which will help to create shareholder value. Whatever the new reporting requirement, the task of remuneration committees will still be to set pay for directors in a way that reflects market conditions for them and, more importantly, incentivises them to deliver profits and shareholder value. Of course remuneration committees keep an eye on the prevailing rates of increase for the workforce overall, but directors’ pay is driven primarily by the items that are not basic pay—bonuses, LTIPs, STIFs and so on—which are, in turn, dependent on business success. Anything that interferes in the hugely difficult process of creating an executive pay system which is based on rewarding success is at best a distraction. I end my remarks on these regulations on the unhappy note that the Government have, in this one respect, let themselves down.
My Lords, I thank the Minister for telling us about the regulations. Interestingly, he reminded us about the lifting of thresholds and that the thresholds in the Companies Act 2006 are now lifted, and lifted quite seriously, in 2008. Yet he also referred to the thresholds for listing donations, whether political or charitable, and said that they were being lifted after 28 years. This gives one the opportunity to say that the Government are looking at thresholds in terms of regulatory reform and considering whether it should be someone’s job to look out across the field of government and decide whether they should be lifted. I was concerned, and still am concerned, about the threshold in the intestacy regulations, which has not been lifted for years. I asked a question in this House about this, and a committee has looked at it, but nothing has happened. Thresholds are important, and they should be part of regulatory reform.
I, too, am a chartered accountant and a member of the Institute of Chartered Accountants in England and Wales, to which I pay my subscription. I note from the documentation that it has sent us that it is “broadly content” with the regulations, although it has not had time to look at everything—dearie me, what about little me? The institute has a squad of people but has not had time. It tells us, however, that it is concerned about off-balance-sheet arrangements. It says that information must be disclosed, but there is a problem because there is no definition of what “off balance sheet” means. This means what it says; if it is not there, you cannot see it. It comes down to this: is the company exposed to something that is not being made clear? Does everyone who has to prepare accounts and put notes on them see these things in a similar way? That is the institute’s problem, and I think it is saying, “Help!”, because it wants a level playing field for the reader of accounts.
My third point is that, as the Minister indicated, the documentation helpfully sets out in one place what has to be disclosed in accounts. Does he believe that it is the department’s job to set out a pro forma, or several pro formas or templates, of how this work should be done? That would be very helpful, but the Minister may say, “We’ll leave that to commercial sources”. If it is clear how accounts should be produced in accordance with the Act, it seems reasonable that a pro forma or template is produced.
I happened to spot in both sets of accounting regulations that if there were such a pro forma—or indeed if we look at the required formats—Regulation 7 for the small companies and Regulation 9 for the large companies state that you must not have a heading or sub-heading if there are no numbers on either side. You can have the heading if you had it the previous year, but otherwise you do not have a heading. I wonder how sinful it would be if, for example, you said in your accounts, “Land and buildings, nil; last year, nil; plant machinery, nil; last year, nil”. That does not seem too sinful. Indeed, it might be helpful because people think, “I am amazed that that company does not have any plant or any land and buildings”. I am surprised that it says that a company must not have a heading or sub-heading in those circumstances. It struck me as rather strange that that is so prescriptive.
My Lords, I am grateful to both noble Lords for their contributions, their brevity, and resisting the temptation for two chartered accountants to join forces against one criminal lawyer. It must have been very great for them, but they managed to resist and for that they deserve some congratulation. But I am more grateful for the general support given across the House to these regulations, particularly for the way in which the regulations are now set out under the new Act and for the raising of thresholds. I know that both noble Lords will be looking carefully to see how this works out in practice. Indeed, the noble Baroness asked whether, if in practice things do not work out as we hope they will, we will come back and make sure that they do. The answer is of course yes, although that will be subject to time and legislative ability. Everyone is in the business of trying to make these detailed and complex matters work for businesses and, I stress again, particularly for small concerns.
I was asked a number of questions which I shall see if I can answer. I turn first to off-balance-sheet arrangements. These are not defined in the directive, as the noble Lord, Lord Shutt, pointed out. We believe that it would be very difficult, if not impossible, to provide a watertight legal definition that covered all the types of transactions that should be covered both now and in the future. Recital (9) of the directive provides useful examples such as the creation or use of special purpose entities and securitisation. The department intends to publish guidance on its website drawing attention to recital (9), and the Accounting Standards Board is keeping the relevant accounting standards under review. We think that this less prescriptive approach gives companies some more flexibility and therefore decreases the burden on them, and they can consider what is most appropriate for their circumstances.
The noble Baroness was also concerned about accounting standards in relation to balance sheets, both UK and international standards. The standards are likely to have to keep changing in order to deal with off-balance-sheet arrangements, because those arrangements keep changing as the regulations change. We feel that it is best if the law remains at a principles-based level.
We understand what the noble Baroness is saying about gold-plating. The 2006 Act as a whole introduced a range of deregulatory measures that have been widely welcomed by business. Annual administrative burdens on business will be reduced by over £300 million. It is a huge task to implement the Act and the secondary legislation under it, and we have to get it right. In the mid-1990s the then Government carried out an extensive review of statutory accounting requirements and a number of changes were made to simplify them where the UK had gone beyond what was required by EU accounting directives. The European Commission is currently working on proposals to simplify company law requirements, in particular the accounting requirements for small and medium-sized businesses. As a country we have been actively involved with the Commission on the work it is doing. When the EU proposals have been finalised and the Government come to implement the changes, there will be an opportunity for us to look at the few remaining areas where the accounting requirements could be more closely aligned with the EU accounting directives. We think it makes more sense to look at accounting simplification as a package rather than take a piecemeal approach, and we hope very much that all interested parties will help in this by bringing forward suggestions.
The noble Baroness mentioned the new remuneration disclosure requirement and, in a gentle way, told us that she thought it was a bad thing. We think it is a proportionate response to the representations we received. Indeed, quoted companies should always apply the principles as part of the combined code. We are giving them the opportunity to look at how they do that over the next year so that they are ready to report on it when the requirement is implemented for financial years beginning on or after 6 April 2009. The noble Baroness said that she did not think this new disclosure requirement would cause industry a lot of trouble.
We believe that it is a good thing that directors receive bonuses on the basis of increased productivity. It is important also to look carefully at what kind of remuneration other members of the company are getting because they, too, add to its profits in small and large ways. I do not think this is a big point between us—there are bigger ones.
On templates, I hope the noble Lord, Lord Shutt, will be pleased to hear that Companies House is working on a standard template or format especially for small companies to make financial reporting easier for them. I hope that he and business will be pleased by what I am about to say. In general, figures that are zero will not be reported. This generally does not cause any problems at all. Companies House already allows electronic filing on a template for dormant company accounts and small company abbreviated accounts, so I do not think this is likely to be a large issue, if one at all.
The noble Lord referred to thresholds and said that someone should look at them across the board. We appreciate his concern. Thresholds arise from different places so it is difficult to take a common approach to them. Company law thresholds are determined by EU directives, as are these rises in the thresholds. The consequence, of course, will be that more companies fall into the small company bracket. That must be a good thing because it means that they will have less regulation to fulfil and should aid them in being successful companies.
I hope I have dealt with most if not all of the points so helpfully raised by noble Lords in this important statutory instrument debate. We believe that this is a business-friendly package of regulations and we are grateful for the support that it has around the House. It makes a small number of modest beneficial changes for companies.
On Question, Motion agreed to.
Companies Act 2006 (Amendment) (Accounts and Reports) Regulations 2008
Small Companies and Groups (Accounts and Directors’ Report) Regulations 2008
My Lords, I beg to move the Motion standing in my name on the Order Paper.
Moved, That the draft regulations laid before the House on 17 December 2007 be approved. Sixth Report from the Statutory Instruments Committee.—(Lord Bach.)
On Question, Motion agreed to.
House adjourned at 5.39 pm.