House of Lords

Wednesday 13th July 2011 Lords Chamber

Wednesday, 13 July 2011.

15:00

Prayers—read by the Lord Bishop of Chester.

EU: Common Fisheries Policy

Wednesday 13th July 2011 Lords Chamber

Question

15:06

Asked by

[Baroness Parminter]

To ask Her Majesty’s Government what steps they are taking to achieve reform of the Common Fisheries Policy.

[The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord Henley)]

My Lords, I welcome this Question from my noble friend; it is particularly timely given that the Commission published its proposals for the reform of the common fisheries policy earlier today. My honourable friend the UK fisheries Minister continues to encourage his European counterparts to support radical reform, and will be pressing our case for reform as negotiations develop, with further talks at the Agriculture and Fisheries Council next Tuesday.

[Baroness Parminter]

The common fisheries policy has one of the most dismal reputations of any European Union policy and is responsible for the fact that yields in our fisheries have diminished. Does the Minister agree that its reform must include the total elimination of discards, and maximum sustainable yields delivered by long-term management plans agreed at regional fisheries level?

[Lord Henley]

My Lords, I could be very brief in responding to my noble friend by saying that I agree with her entirely. Obviously we want to deal with the problem of discards. We have done a great deal within the United Kingdom about that matter. She is also right to talk about the need for regionalisation of the common fisheries policy and about rights-based management. However, we will discuss all that and continue to negotiate in Europe on these matters—and I think that we need support from all sides of the House, and throughout the entire country and Europe, to get a proper reform of the CFP.

[Lord Sewel]

My Lords, does the Minister accept that any reform of the common fisheries policy will fail if it just amounts to piling regulation upon regulation? That has been the trouble with the common fisheries policy from the very beginning. Surely the important thing is that we accept that fishermen themselves have to accept responsibility for the health of the industry. As the noble Baroness said, the best way to do that is to build on the regional management organisations that already exist.

[Lord Henley]

My Lords, this is becoming rather easy, because I think I can agree with the noble Lord as well in terms of the direction that we are travelling in. I think that we ought to continue to travel in that direction. We will continue to fight for a ban on discards and deal with that very serious problem. We will also continue to negotiate with other colleagues in Europe on the other matters that my noble friend and the noble Lord mentioned.

[Lord Eden of Winton]

Can my noble friend say, on the subject of discards in particular, whether the fisheries of any other countries within the European Union take a different line from that which our own fisheries have taken?

[Lord Henley]

My Lords, discards are a particular problem, not so much in Mediterranean waters but more in North Sea and Atlantic waters. That is why I stressed in my earlier responses the need for regionalisation on these matters. As my noble friend and as others have put it, discards are something that we all find abhorrent. The whole idea that such things should still be happening is wrong, and we will fight to end discards. We are already doing a considerable amount to reduce the amount of discards within the UK fleet.

[Lady Saltoun of Abernethy]

Is the Minister aware that the European Commission is now trying to take back the management of the common fisheries policy, which was to have been moved to the European Parliament?

[Lord Henley]

My Lords, I think the noble Lady has got that slightly wrong. As I understand it, following this report from the Commission, this will be a matter for the Council of Ministers and for the European Parliament. It will be a matter for co-decision, so it will take some time. As a result, it is very important that we build up the appropriate alliances in Europe and within the European Parliament to make sure that we can negotiate the best deal possible for a proper, radical reform of the common fisheries policy.

[Lord Campbell of Alloway]

My Lords, could the Minister answer my noble friend’s question, which is of crucial consequence and requires an answer?

[Lord Henley]

My Lords, I thought that I had dealt with that point in answering my noble friend on discards. We think that the wasteful practice of discarding fish should be brought to an end. We are doing a great deal already within the United Kingdom to make sure that it is being reduced by various practical measures relating to net sizes and other matters. We will also continue, in the negotiations for reform of the common fisheries policy, to make sure that we do all we can to bring it completely and utterly to an end.

[Lord Hughes of Woodside]

My Lords, it is not quite as simple as saying that discards shall be abandoned. What happens to the undersize fish caught by fishermen at sea? Will they count against national quotas or regional quotas? Are we going to rely solely on changing net sizes? That is very important, but you cannot avoid discards if you fish in the sea.

[Lord Henley]

My Lords, we can never completely and utterly get rid of discards. We want to get rid of them as much as is possible. That is why we are seeking a reform of the CFP, and that is what we are negotiating to do. However, there are also practical measures relating to net sizes, to which the noble Lord referred, and practical measures relating to CCTV on the boats themselves that can help deal with the problem. It is going to take time and a lot of negotiation with other member states and with Members of the European Parliament, but we are committed to working towards that.

[Lord Knight of Weymouth]

My Lords, we very much welcome the Commission’s proposals today to end discards. In doing so, we pay tribute to the campaign, led by Hugh Fearnley-Whittingstall among others, to gather a petition of over half a million signatories to press for this change. Clearly it is in the long-term interests of the industry for fish stocks to be rebuilt and taken sustainably. With 75 per cent overfishing, a cut in the fleet looks inevitable if this new policy is to work. Can I ask the Minister how this will be managed, particularly in the coastal towns hardest hit? Will the decommissioning payments continue, and will there be extra investment in regenerating those communities?

[Lord Henley]

My Lords, I am grateful to the noble Lord for paying tribute to the campaign run by Hugh Fearnley-Whittingstall—to which I pay tribute—but I would hope that the noble Lord would also pay tribute to my honourable friend Mr Richard Benyon, who I think has done equal amounts in terms of his negotiations on these matters. I cannot give the noble Lord specific answers to these questions at this stage, as he well knows, because we are still negotiating on these matters. We have had the proposals from the Commission only today, so I have not read them in detail, nor has my honourable friend Mr Benyon. We will look at those proposals, he will be negotiating on them next Wednesday, and we will come forward with proposals that will be good for the United Kingdom’s fisheries industry, for fish in general and for the sustainability of our fish stocks.

[Lord Pearson of Rannoch]

My Lords, given the success of the fisheries policies of Iceland and the Faroe Islands, and given the fact that 70 per cent of the fish in European waters swam in British waters before we joined the Community, why do we not take back our own fish management to the benefit of our industry? Why do we need a common fisheries policy at all?

[Lord Henley]

Oh dear. As I think I have said to the noble Lord before, we are where we are. We have a common fisheries policy and we are committed to renegotiating that along with the Commission, which has accepted that that policy does not work, and we are going to get that right. With the Commission and a vast number of other member states being on side, and with this country being totally and utterly committed to doing so, we can get that right. We will start that process next Tuesday and continue it as long as is necessary.

Energy: Fuel Poverty

Wednesday 13th July 2011 Lords Chamber

Question

15:15

Asked by

[Earl Cathcart]

To ask Her Majesty’s Government what progress has been made in carrying out their “full-scale review of fuel poverty and its implementation”, with special regard to energy companies adopting a rising block tariff system of charging.

[The Parliamentary Under-Secretary of State, Department of Energy and Climate Change (Lord Marland)]

My Lords, the Secretary of State announced on 14 March 2011 that Professor John Hills would undertake an independent review of fuel poverty. He has been asked to consider fuel poverty from first principles—what causes it, its effects and how best to measure it—with interim findings expected in the autumn and a final report in early 2012. The review is independent. Its conclusions will be evidence-based and have not been and will not be pre-judged or pre-agreed with the Government.

[Earl Cathcart]

My Lords, I thank my noble friend for that encouraging reply. It is good that Professor Hills will carry out that work. The problem is that energy companies recover their fixed costs from the first few hundred units they charge each customer, and the more energy used the lower the charge per unit. This seems topsy-turvy to me and does nothing to encourage us to use less energy. It is no wonder that there are millions of households in fuel poverty. With energy prices set to surge, surely the first few hundred units consumed should be relatively cheap and then the charging should get progressively more expensive per unit.

[Lord Marland]

I am very grateful to my noble friend. This is a subject that we have discussed on many occasions. Indeed, our officials have offered to meet him to discuss it, which I am delighted to say they will in September. I can also inform my noble friend that I have written to Professor Hills and suggested that he might like to talk to noble Lords and hear their views, bearing in mind that his is an independent review so I am not allowed to insist upon that. I am delighted that he has offered a date in August, which is probably not that convenient to noble Lords, so he has agreed to see your Lordships in September. I hope that the input from my noble friend will then be extremely invaluable.

[Lord Campbell-Savours]

My Lords, can the Minister ask Professor Hills and his officials to refer back to a series of amendments that I moved on previous energy Bills as they went through this House, which set out in detail the structure for a rising block tariff scheme? Those amendments were supported by a number of lobbies outside the House and they met precisely the objectives set by the noble Earl, Lord Cathcart, in his question.

[Lord Marland]

Well, the noble Lord knows that my knowledge of ancient history is less than my knowledge of science, so I am afraid that I am not familiar with his expertise or his amendments to Bills that were taken through the House. However, the problem with the rising tariff is that the people who use the most energy are those in the poorest homes, which require the most heating. It is not as simple as waving a magic wand. It is therefore imperative that we progress with things such as the Green Deal and drive in the efficiency measures that we are setting out through it before we revisit this excellent point, which we are very sympathetic and open to, later on when that Green Deal is in action.

[Lord Best]

My Lords, has the Minister seen the statistic that some 200,000 pensioners would be taken out of fuel poverty if the kind of tariff system recommended by the noble Earl, Lord Cathcart, was implemented? On the theme of fuel poverty and energy conservation, can the Minister report progress under the Energy Bill on the measure to prevent private landlords re-letting properties that fail every test of energy performance after 2016?

[Lord Marland]

The noble Lord is obviously very knowledgeable about the private rented sector, and he knows as well as I do that we are very committed to trying to use every possible commercial measure to ensure that the private rented sector takes its homes out of the F and G categories. We are going to review that in 2016 and we are still open to considering it, but it is very much an imperative, a fundamental step, in getting these people out of fuel poverty—which incidentally is now reaching an horrendous figure. I am looking at my notes, which I do not often do; in 2004, 1.2 million people in the UK were in fuel poverty, and 4.5 million are now in fuel poverty. This is a serious task that the Government have to set about solving. All of us in this room want to see it solved and satisfied, and I am very grateful for the support that I get from all sides of the House to come up with a solution.

[Baroness Maddock]

My Lords, I am very pleased to hear the Minister’s reply, but it will be some time before the report on fuel poverty is published. In the mean time, are the Government considering making social tariffs for energy compulsory as a way of reducing costs for those in fuel poverty? If they are not, what else are they thinking about in the short term to try to deal with this severe crisis? The Minister has just given us the very bad figures.

[Lord Marland]

I re-emphasise that we are going to have an interim report in the summer and a final report in the early part of next year. That is very quick. It would be wrong for us to start putting up tariffs or making incentives while we are waiting for the eminent professor to come up with his conclusions, having consulted across the piece. Forgive me if I do not agree to the noble Baroness’s suggestion; it is obviously a good one, but we need to wait for the professor to deliver.

[Baroness Smith of Basildon]

My Lords, fuel poverty has stepped up a gear with the latest announcement of 18 per cent price increases. The Government have to understand that more and more people who have never previously worried about their bills or thought of themselves as being in fuel poverty will do so when they get their winter bills next year. The disgrace of the energy companies is that those who have the least could end up paying the most, with higher prices for pre-paid meters and those who do not pay directly from their bank also having to pay more. I note that the Minister said he cannot instruct Professor Hills, but he could make suggestions. Can he suggest to Professor Hills that he examine this in his review to ensure that this perverse pricing is ended once and for all?

[Lord Marland]

I am afraid, as I said earlier, that I cannot agree with the noble Baroness; I normally do, but I cannot on this occasion. It is not for me to instruct Professor Hills; Professor Hills is coming up with an independent review. I am delighted if the noble Baroness herself wants to make suggestions to him. That is the point of the consultation that he is offering in September, and I am sure that he will greatly benefit from her views.

As for energy prices, these are very regrettable, and this is the price that we are currently paying for no investment in the infrastructure of the energy and electricity in this country. We have to invest £110 billion—

Noble Lords: No.

[Lord Marland]

Noble Lords can say no, but come on, they know as well as I do. Some £110 billion has to be invested in the infrastructure. We have failed the consumer in creating energy security by being reliant on fossil fuels.

Devolution: England

Wednesday 13th July 2011 Lords Chamber

Question

15:23

Asked by

[Lord Foulkes of Cumnock]

To ask Her Majesty’s Government what proposals they have for devolution to England.

[Lord Taylor of Holbeach]

My Lords, the Government have no current proposals for devolution to England.

[Lord Foulkes of Cumnock]

My Lords, surely the Minister will agree that now that Scotland, Wales and Northern Ireland have control over all their own domestic matters through devolved parliaments, this leaves a democratic deficit in England. Will the Government now consider bringing forward the only proposal that will provide a stable and equitable solution to this problem, namely a UK federal system and a devolved, elected Parliament for England?

[Lord Taylor of Holbeach]

My Lords, I am sure we can have an interesting debate on this question, because a devolved English Parliament within a federalised UK has been one of the proposals put forward in the past to deal with the West Lothian question. I think the noble Lord would admit that this is not without its complexity. The Government have committed to the establishment of a commission to investigate the West Lothian question, and we would not want to pre-empt any conclusions that that commission may come to.

[Lord Forsyth of Drumlean]

My Lords, why is it taking so long for the Government to establish this commission? Surely the point being made by the noble Lord is that it is ridiculous that we should have Labour MPs from Scotland voting on English matters which are devolved in Scotland, where English MPs have no such say. This was a fundamental tenet of our manifesto commitment, so when can we expect this commission to be appointed? Before the Recess, I hope.

[Lord Taylor of Holbeach]

I think my noble friend will know that the programme before the Recess is rather congested. However, I reassure him that the commission will be appointed this year. It is important to get its terms right. This is a complex issue. All noble Lords who have discussed or investigated it will know about its complexity. It is important to get the right question and therefore the right answer.

[Lord Barnett]

My Lords, I am sure the noble Lord realises that the best way to get fairness into the whole issue is for the Government to accept the amendment that I have indicated I will move to the Scotland Bill to implement what the House of Lords Select Committee unanimously recommended to the House—that the Barnett formula should be changed so that it is based on need. Will the Government accept that?

[Lord Taylor of Holbeach]

We will certainly have an opportunity to debate the noble Lord’s amendment as the Scotland Bill will shortly come to this House. In the mean time, one of the aspects of devolution which the commission will investigate is the whole question of funding. I reassure the noble Lord that the Barnett formula will loom large in its considerations.

[Lady Saltoun of Abernethy]

My Lords, do the English want a devolved Parliament; and to pay for it?

[Lord Taylor of Holbeach]

That is not for me to say; I guess that is for the English people to say. Given that roughly 85 per cent of the membership of the House of Commons comes from English constituencies, one of the solutions may be not to change the devolution settlement in respect of England.

[Lord Hunt of Kings Heath]

My Lords, surely the outcome of the commission that the noble Lord has said the Government will set up within the year will have an impact on consideration of Lords reform. Given that, does the noble Lord agree that we had better wait to see the outcome of the commission’s work before bringing legislation before your Lordships' House?

[Lord Taylor of Holbeach]

I have just been exhorted by my noble friend Lord Forsyth to ensure that the Government tackle this process robustly. I think he is correct in that regard. The commission will, of course, evaluate the consequences of Lords reform when deciding in what way the Chambers of the House might operate, if its solution is a parliamentary one.

[Lord Maclennan of Rogart]

My Lords, in recognising that British people no longer live in a unitary state, rather than have a top-down solution suggested by the Government or anyone else, would it not be better to seek the views of the English citizens of this country, and take a lesson from the experience in Scotland of having a convention to discuss these matters deliberately over a period so that all good ideas can be ventilated and the most popular selected?

[Lord Taylor of Holbeach]

I hope that the commission will inform any such debate which may occur. That is the reason why the Government want the advice of the commission, which can take evidence, consider all the proposals and come to conclusions which are practical and desirable for the governance of this country.

[Baroness Farrington of Ribbleton]

My Lords, will the Minister give an assurance to those of us who live in England that the commission will look at the English regions and not just at a parliament for England as there are great differences in need between the north-west of England, the north, the south-west, and London and the south-east? I would like that assurance, particularly as the north-west, along with the north, has suffered disproportionately under the Barnett formula.

[Lord Taylor of Holbeach]

My Lords, I am sure that regional aspects will come into the commission’s discussions but the noble Baroness will know that the last time a vote on a regional assembly was held, the people of north-east England voted against such an assembly.

Immigration: Advisory Service

Wednesday 13th July 2011 Lords Chamber

Question

15:30

Asked by

[Baroness Hamwee]

To ask Her Majesty’s Government how immigrants and asylum seekers will be provided with legal advice and representation following the entering into administration of the Immigration Advisory Service.

[Baroness Northover]

My Lords, it is clearly regrettable that the Immigration Advisory Service’s trustees have decided to place the organisation in administration. However, the IAS is one provider in a wider market of immigration and asylum advice. The Legal Services Commission is identifying alternative provision for the areas affected, as well as making the necessary arrangements for case transfers.

[Baroness Hamwee]

My Lords, the IAS had almost 25,000 new cases last year, of which 8,500 were asylum cases. That leaves about 10,000 live cases. What assurances can the Government give: first, to clients, especially those whose cases are at a critical time-limited point and who need information in their own languages about what will happen next; and, secondly, on practical matters, including the number of staff retained by the administrators to deal with such things as the transfer of files? My noble friend will know that a year after the closure of Refugee and Migrant Justice many files are still in storage, with the storage company looking for payment before cases can proceed.

[Baroness Northover]

The IAS was audited and the Legal Services Commission identified potential overclaims representing millions of pounds. That is what has led to this train of events. The LSC is working very hard to transfer cases and is prioritising the most vulnerable first, among them cases of unaccompanied children claiming asylum and cases coming up to tribunal immediately. A large number of people working in this area are prepared to take on this work, which is very encouraging for making a smooth transfer and making sure that clients are well looked after in this situation.

[Lord Dubs]

Is there not a danger that with the cutback in money for legal aid, it is not possible for other organisations to fill the gap left by the Immigration Advisory Service? Is not the real problem that asylum seekers will be caught in limbo, possibly becoming destitute because there is no one to represent them properly?

[Baroness Northover]

This is a problem in the IAS, which projected that it would have a return profit of £500,000 even with the proposed legal aid reforms. This is not an issue about legal aid reforms but a problem in the IAS: a large debt that it cannot address and which the Legal Services Commission has decided should not be written off. Many other organisations want to take on this work. Carolyn Downs, the chief executive of the Legal Services Commission, said in the other place yesterday:

“we have a huge number of people contacting us who are prepared to take on that work”.—[Official Report, Commons, Legal Aid, Sentencing and Punishment of Offenders Bill Committee, 12/7/11; col. 72.]

[Baroness Sherlock]

I declare an interest as former chief executive of the Refugee Council. Can the Minister assure the House that the quality of specialist immigration law that will be available in the future will be as good as in the past? Is she aware of the differential success rates of people getting very good legal advice? Does she accept that removing immigration law from the scope and cutting the budget of legal aid for asylum may make it harder? I am sure that most noble Lords would not dream of buying a house without decent legal advice, and certainly no one should be forced to defend their life without it.

[Baroness Northover]

The Legal Services Commission has a certain threshold for demanding the kind of quality that the noble Baroness is talking about. That continues to be the case, and we are encouraged that a large number of providers are willing to take on this work, which helps drive up the quality.

[Lord Bach]

My Lords, will the Minister ensure that every case that is currently with the IAS will be transferred to a competent provider of legal advice and representation? I think she has already indicated that she will make sure that that happens. Furthermore, because of the Government’s proposals in the Bill, all immigration cases, except those of individuals in detention, will be outside the scope of legal aid, including cases of domestic violence. This means that in every case, however complicated, no legal advice or legal aid will be available. Does the Minister, who has a proud liberal reputation, not feel more than a little uncomfortable at depriving people of access to justice in this way?

[Baroness Northover]

How very kind of the noble Lord. On his first point, three IAS hub centres will be kept open for the moment: in Manchester, Birmingham and Bradford. They are facilitating the transfer of these cases. I am sure that we will have very interesting debates coming down the track on legal aid, but this has nothing to do with the proposed changes.

[Lord Avebury]

My Lords, will my noble friend say how many IAS staff will be retained in the three offices that she has just mentioned to deal with the transfer of files, and whether she considers that they will be able to do it adequately, bearing in mind that, as she has already said, there are still files that have not been transferred after the demise of the RMJ, even though there has been more than a year to do this? Does she agree that the number of matter starts given to the IAS is so large that they could not be taken up by other practitioners, especially in regions such as East Anglia and Yorkshire, where the IAS has either 100 per cent or most of the legal aid and asylum cases?

[Baroness Northover]

I disagree with what my noble friend says about adequate provision perhaps not being in place. I am very encouraged by what the chief executive of the Legal Services Commission said. The transfer of files is better organised than it was in the previous case that he referred to, and we are confident that this will be taken forward very effectively.

Arrangement of Business

Wednesday 13th July 2011 Lords Chamber

Announcement

15:37

[Baroness Anelay of St Johns]

My Lords, it may be for the convenience of the House to know that, after discussions in the usual channels, the Government have made time available this Friday 15 July for a debate on the Motion that this House takes note of recent allegations about the conduct of the news media and police, and the position of News Corporation within United Kingdom media provision. The Motion will be moved by my noble friend Lord Fowler after proceedings on the Private Members’ Bills already scheduled for Friday have been completed. I understand that those matters are not expected to be lengthy. The speakers list is now open in the government Whips’ Office.

Phone Hacking

Wednesday 13th July 2011 Lords Chamber

Statement

15:37

[The Chancellor of the Duchy of Lancaster (Lord Strathclyde)]

My Lords, it may now be convenient for me to repeat a Statement that was made earlier today by the Prime Minister. Well informed Peers will be aware that some of the issues contained in the Statement have changed. As a result, and with the agreement of the Opposition, I have made some amendments that I shall make plain during the course of the Statement, which is as follows.

“In recent days, the whole country has been shocked by the revelations about the phone hacking scandal. What this country and this House have to confront is an episode that is disgraceful: accusations of widespread law-breaking by parts of our press; alleged corruption by some police officers; and, as we have discussed, the failure of our political system over many years to tackle a problem that has been getting worse. We must keep front and centre the real victims: relatives of those who died at the hands of terrorism, war heroes and murder victims—people who have already suffered in a way that we can barely imagine who are being made to suffer all over again.

We all want the same thing: press, police and politicians who serve the public. Last night, the Deputy Prime Minister and I met the Leader of the Opposition. I also met the chairs of the Culture, Media and Sport, Home Affairs and Justice Select Committees to discuss the best way forward. Following these consultations, I will set out today how we intend to proceed: first, on the public inquiry; secondly, on the issues surrounding News International’s proposed takeover of BSkyB; and, thirdly, on ethics in the police service and on its relationship with the press.

Before I do that, I will update the House on the current criminal investigation into phone hacking. I met Sir Paul Stephenson last night. He assured me that the investigation is fully resourced, one of the largest currently under way in the country, and being carried out by a completely different team from the one that carried out the original investigation. It is being led by Deputy Assistant Commissioner Sue Akers, who I know impressed the Select Committee yesterday. Her team is looking through 11,000 pages containing 3,870 names, including around 4,000 mobile and 5,000 landline phone numbers. The team has contacted 170 people so far, and will contact every single person named in those documents. The commissioner’s office informed me this morning that the team has so far made eight arrests and undertaken numerous interviews.

Let me now turn to the action that the Government are taking. Last week in the House I set out our intention to establish an independent public inquiry into phone hacking and other illegal practices in the British press. We have looked carefully at what the nature of this inquiry should be. We want it to be one that is as robust as possible—one that can get to the truth fastest and get to work the quickest, and one that commands the full confidence of the public. Clearly, there are two pieces of work to be done. First, we need a full investigation into wrongdoing in the press and the police, including the failure of the first police investigation. Secondly, we need a review of regulation of the press. We would like to get on with both these elements as quickly as possible, while being mindful of the ongoing criminal investigations. So, after listening carefully, we have decided that the best way to proceed is with one inquiry in two parts.

I can tell the House that the inquiry will be led by one of the most senior judges in the country, Lord Justice Leveson. He will report to both the Home Secretary and the Secretary of State for Culture, Media and Sport. The inquiry will be established under the Inquiries Act 2005, which means it will have the power to summon witnesses, including newspaper reporters, management, proprietors, policemen and politicians of all parties, to give evidence under oath and in public.

Starting as soon as possible, Lord Justice Leveson, assisted by a panel of senior independent figures with relevant expertise in media, broadcasting, regulation and government, will inquire into: the culture, practices and ethics of the press; its relationship with the police; the failure of the current system of regulation; the contacts made, and discussions had, between national newspapers and politicians; why previous warnings about press misconduct were not heeded; and the issue of cross-media ownership. He will make recommendations for a new, more effective way of regulating the press—one that supports its freedom, plurality and independence from government, but which also demands the highest ethical and professional standards. He will also make recommendations about the future conduct of relations between politicians and the press. This part of the inquiry we hope will report within 12 months.

The second part of the inquiry will examine the extent of unlawful or improper conduct at the News of the World and other newspapers, and the way in which management failures may have allowed this to happen. This part of the inquiry will also look into the original police investigation and the issue of corrupt payments to police officers, and will consider the implications for the relationships between newspapers and the police. Lord Justice Leveson has agreed our draft terms of reference. I am placing them today in the Library and we will send them to the devolved Administrations. No one should be in any doubt that we will get to the bottom of the truth and learn the lessons for the future.

Next is the issue of News International’s bid to take over BSkyB. By the day we are hearing shocking allegations: allegations that royal protection officers were in the pay of the News of the World and handed over the contact details of the Royal Family for profit; and allegations that the former Prime Minister, Gordon Brown, had his personal details blagged by another News International title. As both the alleged nature of the malpractice and the scope of the newspapers involved widen, serious questions must be asked about News Corporation’s proposed takeover of BSkyB”.

I would now like to depart from the original Statement given in another place as very recent developments mean that it is no longer accurate. Since the Prime Minister’s Statement, News Corporation has announced that it no longer intends to bid for the shares in BSkyB which it does not already own. This means that the Culture Secretary’s decision to refer the matter to the Competition Commission now falls.

I would now like to revert to the rest of the earlier Statement.

“And let me also say this. The people involved, whether they were directly responsible for the wrongdoing, sanctioned it or covered it up, however high or low they go, must not only be brought to justice; they must also have no future role in the running of a media company in our country.

Let me now turn to the issue of ethics in the police, and in particular their relationship with the press. Of course it is important that there is a good relationship between the media and the police. The police often use newspapers to hunt down wanted criminals and to appeal for information. However, allegations have been made that some corrupt police officers may have taken payments from newspapers, and there are wider concerns that the relationship between the police and the press can be too close. When I spoke to Sir Paul Stephenson yesterday, he made clear that he is as determined as I am that all aspects of the police relationship with the media should be beyond reproach.

On the allegation concerning improper payments to police officers, I can assure the House that the Metropolitan Police immediately referred the case to the Independent Police Complaints Commission. Since then, the IPCC’s most senior commissioner has been supervising the Met’s work to identify the officers who may have taken these payments. As soon as any officers are identified, the commission has publicly made clear that it will move to a fully independent investigation drawing on all the available expertise necessary to reassure the public. My right honourable friend the Home Secretary has been assured by the commission that it has both the powers and the resources it needs to see this through. It will go wherever the evidence leads it and will have full powers to investigate fully any police wrongdoing that it might uncover. The Home Secretary has also today commissioned a report from the IPCC on the IPCC’s experience of investigating corruption in the police service and on any lessons that can be learnt for the police service. The initial findings of this will be delivered to her by the end of the summer.

I can also tell the House that, in addition to the work of the judicial inquiry on the wider relationship between the police and the press, Sir Paul Stephenson is looking to invite a senior public figure to advise him on the ethics that should underpin that relationship for his own force, the Metropolitan Police. In particular, this figure will advise him on how to ensure maximum transparency and public confidence in how the arrangements are working.

If we are calling for greater transparency from the police, I think it is only right that we provide it in government too. After all, as I have said, one of the reasons we got into this situation is because over the decades politicians and the press have spent time courting support, not confronting the problems. So I will be consulting the Cabinet Secretary on an amendment to the Ministerial Code to require Ministers to record all meetings with newspaper and other media proprietors, senior editors and executives, regardless of the nature of the meeting. Permanent Secretaries and special advisers will also be required to record such meetings, and this information should be published quarterly. It is a first for our country and, alongside the other steps we are taking, will help to make the UK Government one of the most transparent in the world. The Opposition might also want to adopt this practice to ensure a cross-party approach.

After this Statement, I will be meeting the family of Milly Dowler. None of us can imagine what they have gone through, but I do know that they, like everyone else in this country, want their politicians—all of us—to bring this ugly chapter to a close, and ensure that nothing like it can ever happen again. It is in that spirit that I commend this Statement to the House”.

My Lords, that concludes the Statement.

15:50

[Baroness Royall of Blaisdon]

My Lords, first, I thank the Leader of the House for repeating the Statement made in the other place by the Prime Minister. The revelations of the past week have shocked the whole country. The public now rightly expect those of us in Parliament, especially those in the other place who directly represent them, to provide not just an echo for that shock but the leadership necessary to start putting things right. We on these Benches very much welcome the fact that the usual channels have now reached agreement that, as we have been urging, this House will on Friday consider these issues in depth in a full-scale debate in your Lordships’ House. The fact that the other place is debating a Motion this afternoon pressing Rupert Murdoch and News Corporation to withdraw their bid for BSkyB has clearly been a clinching factor in ensuring that News Corporation has done precisely that this afternoon. We welcome the fact that News Corporation has withdrawn its bid. It is the right thing to do and what the country wanted to see.

The intention was that your Lordships’ House should debate these issues on a Motion in exactly the same terms in what would have been a powerful double message from both Houses of Parliament. My party proposed the Motion in the other place and secured support from the other parties so that the House of Commons is speaking with a single voice this afternoon. I pay tribute to the leader of my party, the right honourable Member for Doncaster North, for his leadership in this matter and his remarkable personal achievement in securing the extraordinary changes that the country has seen over the past week.

The noble Lord, Lord Fowler, was to have put the same Motion to your Lordships’ House but, rightly, he has now changed the words of his resolution. I pay tribute as well to the way in which the noble Lord has pursued these issues so doggedly. In the light of the announcement by News Corporation, the usual channels have been looking at the wording of the Motion on the Order Paper and, as I say, it is right that those terms should now be adjusted. We on these Benches want to see all parties and both Houses of Parliament move forward swiftly, comprehensively and, wherever possible, on an agreed basis.

Let me ask about the timing, nature and scope of the inquiry as set out in the Government’s Statement. The scale and seriousness of what we have all heard about practices in our newspaper industry, about the way in which that industry was regulated and about the failure of the police to investigate developments should make it clear to us all that now is not the time to delay. The truth is that for far too long, as the Statement recognises, politicians have been lagging behind the public’s rising sense of anger and indignation about the methods and culture of sections of the press. The task in front of us all, as politicians, is to play our part in starting to put that right.

We welcome the inquiry detailed in the Statement. Will the Leader of the House confirm that it will be staffed and up and running before the Recess, and, in addition to the fact that the interfering with or the damaging of evidence in any way while a criminal investigation is under way is already an offence, will the Leader also confirm that from the moment the judge is appointed today it will be an offence for anyone to destroy documents related to the issues of the inquiry?

Turning to how the inquiry will operate, we welcome a number of aspects of the announcement today that build clearly on the way forward for which we in this party have been calling. It is right that this is a single inquiry. We have been clear that it must be judge-led if it is to get to the bottom of what has happened and when. So we on these Benches strongly welcome the announcement of Lord Justice Leveson as the chair of the inquiry. He is extremely well suited to what will unquestionably be a difficult but very important task. Putting together the different elements of this single inquiry will be itself a difficult task. Will the Leader explain how the Government envisage the judge and the inquiry panel operating together?

In opting for a far broader inquiry, it is right that the Government have now decided to follow the argument that we have been making on the inquiry’s scope and the clear views of the Hacked Off campaign and the family of Milly Dowler, whose phone was so despicably hacked into by the News of the World—defunct now, but the impact of that is still reverberating so revoltingly.

It is clear that there are a number of important areas which the inquiry must cover. They include the first police investigation alongside what happened at the News of the World and other newspapers. Does the Leader of the House agree that yesterday’s session of the Home Affairs Select Committee in the other place made clear that the questions about the relationship between the media and the police run wider than simply the first investigation? We must take the steps necessary to restore the public’s faith in the ability of the police to hold all those who have broken the law to account. Similarly, it can only be right that the inquiry has been broadened to the relationship between politicians and the press.

On the specifics, will the noble Lord the Leader of the House assure the House that these aspects too of the inquiry will be very much judge-led? It is important that the terms of reference of the inquiry are not taken to narrow the remit of the judge excessively. We on these Benches are glad that the Government have agreed to make changes to the terms of reference to avoid doing so. Alongside important questions of behaviour in Britain’s newsrooms, the police and the relationship between politicians and the press, two additional issues need consideration. On the issue of media regulation, does the Leader of the House agree that our instinct should continue to be for self-regulation? Does he further agree that it needs to be proved that self-regulation can be made to work? On a point of detail, does he think it is for the judge to make final decisions about recommendations on media regulation? I welcome the decision to make cross-media ownership part of the inquiry. Does the Leader agree that abuses of power are more likely to happen when there are excessive concentrations of power? Will he confirm that the recommendations can be legislated for in the Government’s forthcoming communications Bill?

Finally, on BSkyB, we thank the Leader of the House and through him the Prime Minister for what the Prime Minister said today. News Corporation does indeed need to concentrate more on cleaning up the mess and less on trying to secure a merger. In dropping its bid for BSkyB, we are glad that Rupert Murdoch and News Corporation are finally showing signs that they are, indeed, getting it. Following News Corporation’s decision, we are grateful for the statement of clarification given by the Leader of the House that the decision by the Secretary of State for Culture, Olympics, Media and Sport to refer the matter to the Competition Commission now falls.

As well as discussing this Statement today, we look forward on these Benches to debating these matters fully later this week. But in all our considerations, we all need to keep foremost in our minds the victims of this scandal, such as the family of Milly Dowler and the other members of the public who were the innocent victims of phone hacking. It is they who deserve a full and comprehensive inquiry. They need us to get on with this inquiry, to make it fully comprehensive, and to get to the truth. The leader of my party has given his personal commitment, and the commitment of my party, to make sure we will do everything to ensure that that happens. On these Benches, in this House, we echo that commitment. We look forward to seeing this scandal cleaned up, to seeing the press, the police and politicians root out wrongdoing where it has happened, and to raise their game. We look forward as well to the victims of these crimes—not the perpetrators of them—securing outcomes which are both satisfactory and just.

15:58

[Lord Strathclyde]

My Lords, I should like to thank the noble Baroness the Leader of the Opposition for what she said and to join her where she left off in talking about the victims—the Dowler family and the many others—and these truly staggering figures of the number of phone numbers, both mobile and landline, that have now been discovered. Each of the owners of those numbers will be notified by the police. Our thoughts should be with them—not only public figures or so-called celebrities, but very often ordinary people going about their business who have been highlighted by the press and very often dealt with extremely badly. I am also pleased that this House will have an opportunity to debate these matters. I readily join the noble Baroness in paying tribute to all those who made that possible, in particular my noble friend Lord Fowler—truly a veteran on this subject. I expect it will be the first of many opportunities we will have to debate these issues over the course of the next few years. There is certainly knowledge and expertise on all Benches in the House that we ought to be able to draw upon.

I also agree that, across the parties, we need to move swiftly. The tone of the noble Baroness reflected the need for cross-party unity to try to deal with so many of these different situations. She was right that, in addition to the huge failure on the part of newspapers, there have been failures on the part of politicians and the police, and that we all need to play our part in correcting them.

The inquiry will be set up at once and be firmly up and running by the Recess. I can confirm that it would be a criminal offence to destroy evidence. It would be a criminal offence in any case, because of the police investigation which is ongoing, to destroy evidence that could materially affect that investigation.

The judge will be in overall control; it is his inquiry; he will be supported by what the noble Baroness called an operating panel of experts drawn from the areas that I mentioned in the Statement. How they work together and develop their working practices will depend very much on how the judge decides to operate. We are very much looking forward to them getting going and to the report.

The noble Baroness asked whether the instinct was for continued self-regulation. It will be up to the judge and his inquiry to decide that and to come forward with recommendations, having looked at all the effects of self-regulation and its possible failure. There is increasingly a view—I do not wish to second-guess the inquiry in any sense—that, whether or not self-regulation has failed, we need to defend the relationship between a free press and strong regulation. Some independent form of regulation should almost certainly be the outcome.

I agree also with what the noble Baroness said about the position of News International now. It is important for it to get its own house in order. This is a fast-moving situation; no doubt, it will have moved further by the time we get to our debate on Friday. That is something we should all look forward to.

16:03

[Lord Fowler]

My Lords, as my noble friend says, the position seems to change almost hour by hour. There will be, I think, a welcome around the House for the decision by News Corp to withdraw its bid. However, does he agree that this is not remotely the end of the story and that the inquiries that have just been announced remain essential, not least because of the position of companies such as News Corp? Will he confirm that the inquiry will be able to consider the law relating to American companies taking full control of British media companies when, by the law of the United States, we are prevented doing the same and taking full control of American media companies? That seems a very unsatisfactory position which has not always remotely been the case. Most importantly, does my noble friend agree that the inquiry gives us an exceptional opportunity to settle how the public can be better protected from the unacceptable press intrusions and illegal acts seen over the past years and that, above all, these things should be settled on a bipartisan basis?

[Lord Strathclyde]

My Lords, I entirely agree with my noble friend’s last point. It is important that through Parliament and across the parties we should agree on the best way forward, but particularly that we should do so when we have seen what the recommendations of the inquiry are. I also agree with my noble friend’s point about the inquiry. I am sure that it will want to look at all aspects of media ownership, including foreign ownership, and come up with recommendations on that.

[Lord Richard]

My Lords, I wonder whether the Leader of the House can help me. We do not yet know the exact terms of reference of this inquiry. Can he confirm that it will not be confined just to News International? A situation in which there is a very detailed examination of what News International has done without any examination of what any of the other newspapers may have done would, I think, be rather unsatisfactory.

[Lord Strathclyde]

My Lords, I can readily agree with that. It will look at the widest range of media matters.

[Lord Lloyd of Berwick]

My Lords, I very much welcome the appointment of Lord Justice Leveson to chair the inquiry. There could not, in my view, have been a better choice. I am also very glad that there is to be one inquiry instead of two and that it is to be a judicial inquiry under Lord Justice Leveson. I am a little concerned about the nature of the inquiry and the order of events. The Statement gives the impression that the two parts of the inquiry are to be considered, in a sense, the wrong way around. Surely the urgent matter for inquiry is the conduct of the News of the World—a purely factual inquiry. Would it not be better for the inquiry to complete that aspect of the task before turning to the much more general question of press regulation in the future?

[Lord Strathclyde]

My Lords, the inquiry, as the noble and learned Lord pointed out, will be a single judge-led inquiry, with the support of a panel, but it will be divided into two parts. The first part will look at media ethics and practice. The panel will be drawn from experts in the media, in the police, in government, and so on. We hope that the inquiry will report within 12 months. The second part of the inquiry, as the noble and learned Lord pointed out, will look at the unlawful activity and improper behaviour that has come to our attention, but it will be a post-criminal investigation inquiry held once all the court processes have been completed. The noble and learned Lord will be more aware than I am of the need to avoid interference by the judge-led inquiry with the criminal process and very possible court processes.

[Baroness Buscombe]

My Lords—

[Lord Alderdice]

My Lords—

[Lord Strathclyde]

My Lords, I think that we need to hear from the Liberal Democrat Benches.

[Lord Alderdice]

My Lords, I thank my noble friend for repeating the Statement made by the Prime Minister in another place. He will know that we on these Benches are grateful that the Prime Minister has taken the advice of my right honourable friend the Deputy Prime Minister and appointed a senior and respected judicial figure to lead this inquiry. Lord Justice Leveson is, indeed, a most welcome figure to take on what is a very murky world indeed. Does my noble friend accept that, in respect of the element of corruption, not just of an individual, or a few individuals, as was suggested, but a whole culture of corruption that has developed, any organisation that has presided over such a culture of corruption is not a fit and proper licensee to be conducting the business of press and broadcasting in this country and that it is no longer a question of plurality in the press but of morality in the press? Does he further accept that the committee in another place yesterday demonstrated that there are senior figures in the Metropolitan Police who do not seem yet to have realised the seriousness of the damage that has been done to public confidence in the Metropolitan Police by their failure to address these shocking activities over a period of time and that much will have to be done, and has not yet even started to be done, to repair that public confidence?

[Lord Strathclyde]

My Lords, the issue of the police and their role in this and previous investigations is rightly a matter for the inquiry. On the question of a fit and proper person, that was never going to be triggered by the proposed merger because Ofcom has an ongoing statutory duty to ensure that holders of broadcasting licences are and remain fit and proper persons. It is a matter for Ofcom, which is taking its responsibility in this area most seriously and is already in touch with the relevant authorities.

[Baroness Buscombe]

My Lords, in declaring an interest as chairman of the Press Complaints Commission, may I place on record the fact that it very much welcomes the announcement of the inquiry into the regulation of the press and, indeed, the appointment of Lord Justice Leveson to lead that inquiry? Will the Leader of the House note that last week the Press Complaints Commission, led by its independent members, including another Member of this House, issued a statement making clear its intention to drive reform, particularly in the areas of independence and sanctions? Will he recognise that the PCC remains committed to the establishment of a much more effective system, one that, as the Statement suggests, supports appropriate freedoms but demands the highest ethical standards? Finally, does he accept that while the inquiry is ongoing, the important work of the PCC, through its dedicated staff, must continue so that it can carry on serving the members of the public, who are still turning to it for help in their thousands, day and night?

[Lord Strathclyde]

My Lords, I readily agree with the last part of what my noble friend said: the PCC should continue to do its work. I readily accept my noble friend’s welcome of the announcement that we have made today. On the other matter, I am sure that my noble friend will be invited to give evidence to the inquiry on how regulation has worked. Her role as chairman of the PCC is extremely important in considering what has and has not worked in recent years.

[Lord Campbell-Savours]

My Lords—

[Lord Dear]

My Lords—

[Lord Davies of Stamford]

My Lords—

[Lord De Mauley]

My Lords, we have 10 more minutes. Can the noble Lords decide which of them is to go first?

[Lord Campbell-Savours]

My Lords, the Prime Minister referred in his Statement to consulting with the Cabinet Secretary on an amendment to the Ministerial Code for the recording of all meetings “regardless of the nature of the meeting”. Does this include formal and informal meetings and official and unofficial meetings, if they exist? How is he describing them?

[Lord Strathclyde]

My Lords, my right honourable friend the Prime Minister has invited the Cabinet Secretary to examine this matter. My understanding is that it is to make the process as transparent as possible. It would therefore include all meetings—formal, informal, social and any other kind of meetings that the noble Lord can think of.

[Lord Dear]

My Lords, I know that the whole House will agree that the Statement today throws substantial doubt on the ability of the police service to implement real leadership at various ranks within that service. I am sure the Leader of the House and other Members will agree that the whole issue of leadership in the police service is absolutely paramount. We have one report already in the public domain by Mr Neyroud and we await another from Mr Winsor at the turn of the year. Can the Leader of the House give an assurance that once those reports are in the public domain, Her Majesty’s Government will consider the issue of leadership in the police separate to the Leveson inquiry, and make that consideration a matter of some urgency?

[Lord Strathclyde]

My Lords, it is too early to come to any definitive view but, of course, as the reports are made they will be taken seriously. If there is any action to be taken at that time and it is appropriate to do so, then we shall do so.

[Lord Carlile of Berriew]

My Lords, given that anyone who knows or has encountered Lord Justice Leveson knows that he will dig deep and report robustly, can we take it that the helpful enthusiasm of Select Committees in another place will now recede a little into the background, so the time taken up in dealing with those Select Committees can be used in the inquiries by Lord Justice Leveson and by the very reputable deputy assistant commissioner, Sue Akers?

[Lord Strathclyde]

My Lords, I readily agree with what my noble friend has said.

[Baroness Scotland of Asthal]

My Lords, I applaud the consensus that has been arrived at both in this House and in the other place. Does the Leader of the House agree that the importance of the appointment of Lord Justice Leveson is that not only will he be looking at the subject matter of the current criminal investigations but he will also have an opportunity to look at other newspapers which may also be behaving improperly? The importance of his appointment is that if anyone—in News Corp or any other newspaper—seeks to destroy, alter or otherwise deal with the information, they will be committing a criminal offence.

Secondly, does the noble Lord also agree that the fact that it would appear that the noble Baroness, Lady Buscombe, who heads the commission, was misled either by omission or commission is a very serious matter and it very much enhances the seriousness with which this House and the other place have now to treat the issues complained about?

[Lord Strathclyde]

My Lords, I join the noble and learned Baroness in applauding consensus on this matter and many others. If we have come up with the right decision and an inquiry that everyone can support that must be the right way to go. One of the good things that has come out this afternoon is how everybody has welcomed the appointment of Lord Justice Leveson.

The terms of reference are widely drawn—they will look at the culture, practice and ethics of all the press; their relationship with the police; the failure of the current system of regulation; the contacts made between national newspapers and politicians, and so on. That must include newspaper groups other than News International.

As far as the second point the noble and learned Baroness made about the PCC, everyone can see that the current system has failed and broken down. The inquiry will rightly wish to look at why that happened—what the causes were, perhaps over a very long time—and what measures are needed to put it right.

[Lord Davies of Stamford]

My Lords—

[Baroness Wheatcroft]

My Lords, I should first declare—or perhaps confess is more appropriate—that for nine years I was business editor of the Times, a News International newspaper. I can assure noble Lords that at no stage during my time there was phone hacking taking place under my watch; had it been, I would have known and would have felt responsible for it. However, it is important not to lose sight of the fact that some very important journalism goes on, not just in other papers but in Murdoch papers too—I point noble Lords towards the campaign in the Times recently about adoption and opening up the family courts. We should not totally condemn a bunch of newspapers because of what might have gone on in some of them and neither should we think that what went on at the News of the World is unique to the News of the World.

I am delighted to hear that this inquiry is going to range widely but we need to get to the bottom of this and I am delighted that we will. Does the Leader of the House believe that the Press Complaints Commission had the power to deal with the questions that needed to be asked? My belief is that it did not. It has done as much as it could with the very limited powers it has. We should be looking at giving the commission the power it needs to do the job, and I hope that the inquiry will look at that.

[Lord Strathclyde]

My Lords, I very much agree with my noble friend that we need to get to the bottom of all that has happened. That is the purpose of the inquiry, part of which will look at the current system of self-regulation under the PCC. In the same way that not every journalist was hacking, not all aspects of the PCC have been badly done. Many people have received help and support from the PCC. However, the issues that we are dealing with are of the highest seriousness. It is therefore right that we should set up this judicial inquiry.

[Lord Soley]

My Lords, there have been many inquiries into the press over the past 20-odd years. It is important to remember that none of them solved the problems. They were around at the time and are still around now, even though the press was warned then that it was, rather famously, drinking in the last-chance saloon. One of the most important things, whether we have statutory or non-statutory regulation, is that the body that is set up should have very strong investigatory powers. Without them it will end up being largely a conciliation service, not a regulatory body.

[Lord Strathclyde]

My Lords, these are all good points. It shows how wide-ranging the inquiry will need to be in looking at the facts, and the failures and successes of past regimes. These are all matters that the inquiry will wish to investigate fully.

[Baroness Hollins]

My Lords, what steps are being taken to ensure that when the suspected victims of phone hacking are contacted, their details will be kept confidential to avoid any revictimisation—such as they have faced in the past—through an invasion of their privacy?

[Lord Strathclyde]

My Lords, that is an extremely good question and a good point. The intention of the police is simply to advise those whose numbers have clearly been hacked into. If I may, I should like to pass on what the noble Baroness has said. It is an important point that more anxiety and upset are not caused by the revelation that their numbers were hacked into.

[Lord Davies of Stamford]

My Lords, could the Leader of the House go a little further than he went in his answer to the noble Lord, Lord Fowler, a few moments ago? Is it within the terms of reference of this judicial inquiry to advise on and recommend the proper limits of the media’s intrusion into the private lives of individuals by whatever means where there is no public interest? Obviously, the position is different where there is a public interest.

[Lord Strathclyde]

My Lords, my understanding is that these will be matters for the inquiry to look at. It is entirely right that it should do so.

Mull of Kintyre Review

Wednesday 13th July 2011 Lords Chamber

Statement

16:23

[The Parliamentary Under-Secretary of State, Ministry of Defence (Lord Astor of Hever)]

My Lords, I wish to repeat a Statement that the Secretary of State made in the other place.

“Mr Speaker, I wish to announce the publication today of the Mull of Kintyre review, the report of the independent review of the evidence relating to the findings of the board of inquiry into the fatal accident of a Royal Air Force Chinook helicopter at the Mull of Kintyre on 2 June 1994.

It is right that I should begin this Statement by paying tribute to the 29 people who died in this accident, one of the worst in the history of the Royal Air Force. As is well known, the passengers were members of the Northern Ireland security and intelligence community who were travelling to a meeting in Inverness, and their deaths were a huge blow to the security of this country. They were also a human tragedy for each of the 29 families who were devastated by the loss of their loved ones.

I pledged while in opposition that I would set up a review because I had worries that an injustice might have been done. The official conclusion that the accident was caused by the negligence to a gross degree of the two pilots on duty that day, Flight Lieutenants Jonathan Tapper and Richard Cook, had been criticised almost since the day it was reached. Doubt had been cast on the findings in different ways by the fatal accident review held in 1995, by the Defence Committee and the Public Accounts Committee of this House in 1998 and 2000, and by the Select Committee appointed in another place in 2002.

A number of Members of this House have continued to voice their doubts over the findings of gross negligence, and I would wish to acknowledge the unflagging interest in the case shown by my honourable and right honourable friends the Members for North East Fife, Kensington, North East Hampshire, and North West Norfolk, and also by Sir John Major. I know that the Ministry of Defence considered those reports carefully, taking independent and specialist advice, but given the weight and breadth of the comments I thought it only right to ask an independent figure to check whether justice had been done.

I announced the establishment of the review—the first independent review of the evidence relating to the accident set up by the Government themselves—to the House on 16 September last year. It was my intention that its report, whatever its findings might be, should draw a line under this matter. It has been carried out by the distinguished former Scottish judge, Lord Philip, with the advice and support of a panel of three fellow Privy Counsellors, Lord Forsyth, Baroness Liddell, and my right honourable friend the Member for Gordon. I am extremely grateful to all four for their thorough and painstaking approach to the task and for the clarity with which they have presented their recommendations, which are unanimous.

Lord Philip and his colleagues have concluded that the finding that the pilots were negligent to a gross degree should be set aside and that the Ministry of Defence should consider offering an apology to the families of Flight Lieutenant Tapper and Flight Lieutenant Cook. I can tell the House today that I have accepted these recommendations. At a specially convened meeting of the Defence Council on Monday, it was decided that, to quote our decision,

‘the Reviewing Officers’ conclusions that Flight Lieutenants Tapper and Cook were negligent to a gross degree are no longer sustainable and must therefore be set aside. We therefore order that those findings shall be set aside’.

I am writing to the widows of the two pilots, to the father of Jonathan Tapper and the brother of Richard Cook to express the Ministry of Defence’s apology for the distress that was caused to them by the findings of negligence. I wish also to express that apology publicly in this House today.

Lord Philip’s analysis is very clear. To put it as briefly as I can, he identifies the central point as being that, according to the regulations in force at the time, a finding of negligence should have been made against air crew who had been killed in an accident only if there was “absolutely no doubt whatsoever” about the matter. Although the two air chief marshals who acted as the reviewing officers for the board of inquiry and made the findings themselves had no doubts on the matter, Lord Philip is clear that that is not enough. The question that needed to be asked was whether there was any scope for doubt in anyone’s mind. In this case, other, competent, persons did have doubts. That is sufficient to warrant the conclusion that the findings should not stand.

I would like to make four further points. First, this report does not purport to tell us exactly why Chinook ZD576 crashed. It is central to Lord Philip’s report that the exact cause will never be established, and I am convinced that pursuing the matter further would serve only to increase the distress of the family and friends of those who died in the accident. But those who allege a long-running conspiracy to cover up technical shortcomings in this aircraft will find no support here. The Chinook has had an excellent safety record since the disaster at the Mull. It has been a mainstay of our operations in successive theatres of war and it has the full confidence of those who fly it. On this occasion, however, the report reveals that the pilot expressed concerns that he felt unprepared to fly the aircraft.

Secondly, I want to emphasise that Air Chief Marshals Sir John Day and Sir William Wratten, now retired, who made the decision were and are highly respected and experienced airmen who acted at all times with full conviction as to the right and proper course and in good faith. They did not reach their decision lightly and they did ask for legal advice. Regrettably that legal advice, although subsequently endorsed by independent Queen’s Counsel, has now proved to be incorrect. I attach no personal blame to these distinguished officers and their advisers.

Thirdly, the procedures for investigation of air and other military accidents were changed some years ago, with the result that it is no longer the practice for boards of inquiry—now service inquiries—to ascribe blame to those involved, whether or not they survived the accident. This was because sometimes the business of ascribing blame can get in the way of finding out what actually happened and, most importantly, preventing any recurrence.

Fourthly, the report makes one further recommendation: that the Ministry of Defence should reconsider its policy and procedures for the transport of personnel whose responsibilities are vital to national security. I accept that recommendation too. It has implications for land and sea as well as air transport. I have directed my officials to ensure that the policy and procedures in place across all three services ensure that we do not unnecessarily risk so many individuals who are vital to national security on one vehicle. It is worth noting that Flight Lieutenant Tapper had asked for the passengers on the Chinook that crashed to be split between more than one helicopter.

This has been an unhappy affair that has caused much reflection within the Royal Air Force and anguish for the families of those who died, and particularly for those who were wrongly officially found to have been negligent to a gross degree. I hope that this report and the action that I have taken in response to it will bring an end to this chapter by removing this stain on the reputation of the two pilots”.

16:33

[Lord Rosser]

My Lords, I thank the Minister for repeating the Statement made in the other place by the Secretary of State for Defence. As a result, an opportunity has been provided to enable noble Lords from all sides of the House to express their views in the light of the Statement on a tragedy that has been the subject of considerable comment and concern.

We pay tribute to the 29 people who died in the accident, and to the dignity and bravery of their families. We add our thanks to Lord Philip for his review of and report on the tragic accident in June 1994, when a Chinook mark 2 helicopter crashed on the Mull of Kintyre, and also to the panel of three Privy Counsellors who assisted Lord Philip in his work, two of whom are Members of your Lordships’ House.

The review was mainly of the written record of the board of inquiry and of other related evidence that, it was felt, might throw light on the findings of the board. The original board of inquiry made no finding of culpability, but the two reviewing officers made a finding of gross negligence in respect of the two pilots. It is unfortunate that some of Lord Philip's conclusions were apparently leaked, as they were fairly extensively reported over last weekend. Perhaps the Minister might like to comment on this in his response and tell us what action, if any, is being taken.

The principal recommendation that the board of inquiry finding of negligence to a gross degree should be set aside has been accepted and implemented by the Defence Council. Lord Philip felt that the Ministry of Defence should consider offering an apology to the families of Flight Lieutenant Tapper and Flight Lieutenant Cook. The Secretary of State for Defence has just given that apology and we agree with that.

There is also an issue of the large number of key personnel who were travelling together on the Chinook that crashed. The matter was reviewed after the board of inquiry and guidance was produced, and I note from the Statement that the Secretary of State intends to take another look at this issue to reassure himself that procedures are adequate and appropriate. Lord Philip has also commented on the board of inquiry procedures at the time of the accident but indicated that his concerns have been met by subsequent changes to those procedures.

The terms of reference of the review were:

“To examine all available evidence relating to the findings of the board of inquiry into the fatal accident at the Mull of Kintyre on 2 June 1994; and to report conclusions to the Secretary of State for Defence as soon as possible”.

The review was not asked to make conclusions as to the cause of the accident but it did not find new evidence to suggest mechanical failure, and no safety issue with the Chinook mark 2 has been raised in the report. Lord Philip’s conclusion is very specific. He states that according to the regulations in force at the time, a finding of negligence should only have been made against air crew who had been killed in an accident if there was “absolutely no doubt whatsoever” about the matter. Lord Philip indicates that competent persons did have doubts, albeit not the reviewing officers, and that accordingly the findings should not stand.

It would appear that successive Secretaries of State, initially from the Conservatives and then from Labour, serving from the time of the incident until the last election, felt they should follow the view of the reviewing officers, which was backed up by legal advice, even though it now seems from Lord Philip’s report that the RAF’s own regulations were not followed since there was not the necessary level of proof—namely, “absolutely no doubt whatsoever”—which there should have been for a finding of gross negligence. Indeed, investigations by the Public Accounts Committee in 2000 and a Select Committee of your Lordships’ House in 2001 both found that the findings of the board of inquiry did not satisfy the burden of proof required.

The Secretary of State and the Ministry of Defence accept Lord Philip’s finding that there was room for doubt on the matter and that therefore the finding of negligence to a gross degree was unjustified. We believe that, in the light of Lord Philip's report, the Secretary of State and the Ministry of Defence have made the correct decision. It is only right that if a finding of negligence to a gross degree is to stand, the evidence must be such as to leave no doubt whatsoever. Lord Philip has quite clearly found that not to be the case.

I have three questions to put to the Minister. In the Statement, it was said that the report reveals that the pilot expressed concerns that he felt unprepared to fly the aircraft. Could the Minister tell the House how this matter was dealt with at the time, and what lessons have been learned and implemented? Secondly, can the Minister say what issues surrounding compensation for the families of the deceased arise from the report? I hope that this now brings this matter to a conclusion—one that all will feel able to accept. With that sentiment in mind, I have only one further question to ask the Minister: will he confirm that there will now be no further reviews or enquiries seeking to establish the cause of the accident?

16:39

[Lord Astor of Hever]

My Lords, first, I thank the noble Lord for his support for the work carried out by Lord Philip and his review. I am also grateful to the noble Lord for his support for what my department is trying to do to establish what happened and what lessons can be learnt. Like the noble Lord I, too, pay tribute to the 29 people who died in this accident and to their families.

The noble Lord asked me several questions, the first of which was about the leaks. It was disappointing that Lord Philip’s main recommendation was widely reported over the weekend. We commenced enquiries immediately to establish who was responsible and those enquiries continue. There has been a lot of wild, inaccurate and unhelpful speculation in the press, which must have been very distressing and concerning to the families. I deeply deplore that.

The noble Lord asked me about key personnel travelling together. As Lord Philip’s report acknowledges, we reviewed our process for transportation of personnel vital to national security after the board of inquiry, and we did produce guidance at that point. However, the Secretary of State has said that he wants to take another look to reassure himself that our procedures in this area are adequate.

The noble Lord also asked about the safety issues relating to the Chinook. Lord Philip’s report raises no safety issue with the Chinook mark 2. Indeed, Lord Philip writes in his report that,

“it is now regarded as a highly successful aircraft”.

The Chief of the Air Staff endorsed this position and wrote to the Guardian in January last year. He said:

“The Chinook helicopter has a remarkable safety record and has proved a mainstay of recent operations”.

The noble Lord pointed out that the pilot had expressed concern. I quote from Lord Philip’s review:

“We were told that Flt Lt Tapper telephoned his Deputy Flight Commander on the evening before the delivery of ZD576 to Northern Ireland expressing concern that some time had passed since his conversion training. He felt unprepared to fly the aircraft. He had attempted to persuade the tasking authority to spread the load between more than one aircraft, but his request had been refused”.

My Lords, I am sure lots of lessons have been learnt from that, and certainly we put safety as an absolutely pre-eminent issue as far as the Royal Air Force is concerned.

The noble Lord asked me about compensation for families. This is a confidential matter, but I can assure him that this will be taken forward in the normal way. Finally, I can reassure him that I very much hope that this is the end of the matter. For the families of all those who were killed, I very much hope this is the end.

16:42

[Baroness Liddell of Coatdyke]

My Lords, I thank the Minister for his repetition of the Statement from the other place, and also thank the Secretary of State for the willingness with which he has acknowledged the conclusions of Lord Philip’s review. Will the Minister reiterate his thanks to Lord Philip for his tenacity and his wisdom in dealing with this matter, and also to my noble friend Lord O’Neill of Clackmannan? He has worked closely with the families, as recently as today, to ensure that they are kept up to speed with what is happening in your Lordships’ House and in the other place.

All of this sorry saga hinges on a piece of legal advice that was wrong. It is unfortunate that that happened. There are family members of both Flight Lieutenant Tapper and Flight Lieutenant Cook who did not live to see this day. Our sympathy goes to them as well. Will the Minister acknowledge that many lessons had been learnt before now in matters of how deceased air crew are represented before a board of inquiry? It is not before time that we now have a system that ensures that this miscarriage of justice cannot ever again be repeated.

[Lord Astor of Hever]

I thank the noble Baroness for what she said, and I certainly echo her thanks to Lord Philip. I also thank the noble Baroness herself and my noble friend for all the very hard work that they put into this excellent report. I also assure the noble Baroness that many lessons have been learnt from this whole process, and hopefully we have a template to make things very much better in the future.

[Lord Bannside]

My Lords, as the representative for North Antrim in another place at the time of this happening, this is a sad day. Yet it has some gladness about it, because the record of the two men concerned is now clear. That is a great relief to the families and to those of us who have followed this carefully. I, as the MP for that area, followed it very carefully and in fact raised it in another place. The years have gone by. Today, the fingers no longer point at the two men at whom they were pointed. I am relieved that this matter has come to this conclusion. Of course, there will be soreness; death is cruel, and so are the circumstances that bring about such deaths. I thank the two brilliant men who served their Queen and country well. They have now passed to the other side without any blemish upon them. I am sure that on the great day when all secrets are revealed, there will be full justice for all. There will be a degree of joy and gladness that this matter has come to this end. I do not want to make any other comment than that.

I thank the Minister for repeating the Statement. I thank the Government for listening. I was a bit of a nuisance to them, and I needed to be, but I am glad that we have this good finding today. The way of two wise men will stand the test, and it has stood the test.

[Lord Astor of Hever]

I thank the noble Lord for what he says and I agree with him. I pay tribute to all those in this House, the other place and outside Parliament who have made this day possible.

[Lord Forsyth of Drumlean]

My Lords, will my noble friend pass on my thanks, on behalf of all the people who took part in this inquiry, for the speedy way in which the Secretary of State has considered our report, and for the way in which he has accepted the recommendations, made a fulsome apology and handled this sensitive situation with the families so very well? Having said that, and having looked at this matter in considerable detail and had some pretty robust exchanges, it should be clearly understood that the air chief marshals concerned, in reaching the conclusions that they did, were misdirected. They acted in the best possible way and felt that they were carrying out their duties. The fact that this matter has now been resolved, and that the two pilots who were killed while serving their country have had this stain removed from them, is a great tribute to my right honourable friend the Secretary of State who initiated the inquiry and to Lord Philip who led it. He has achieved something that I have not achieved in 30 years of my political career—unanimity between me and the noble Baroness.

[Lord Astor of Hever]

My Lords, I thank my noble friend for that question. I assure him that I will pass on what he says to the Secretary of State. He referred to the reviewing officers—the two air chief marshals. It is very important that I say this to the House: the integrity and diligence of both senior officers whose duty it was to review the board’s finding—Air Chief Marshal Day and Air Chief Marshal Wratten—are beyond question. They had all the available evidence before them and reached their verdict with scrupulous care and total honesty. They took appropriate legal advice before reaching their decision. They clearly did everything they could to secure advice in order to make a comprehensive assessment of the evidence before coming to their findings.

[Lord O'Neill of Clackmannan]

My Lords, I am chairman of the Mull of Kintyre Group, which has pestered successive Secretaries of State, and, indeed, Prime Ministers, since 1996. This is a day from which we derive considerable satisfaction. Speaking from the opposition Benches, I give full praise to Liam Fox and his colleagues for the manner in which they set up the inquiry and accepted its findings. I also pay tribute to my two colleagues in this House, and Malcolm Bruce in the other place, for the work that they did with Lord Philip in coming to what we regard as a satisfactory ending to a sorry tale. It is a satisfactory ending that should not only enable the two families of the men who have been wronged for so long but afford an opportunity for the book to be closed for the other 27 families whose support in this has been a great consolation to us.

We know that attempts have been made to develop conspiracy theories and to find a silver bullet. The truth is that there is no silver bullet. However, there has been a gross injustice based on legal advice that appears now to have been fundamentally flawed. I would like to think that the MoD will be more careful in the manner in which it seeks and ultimately accepts legal advice of this gravity in the future. I should like to think that the counsel from whom the MoD sought advice will never be employed in that capacity again.

[Lord Astor of Hever]

My Lords, I am grateful to the noble Lord for this all-party support. As I said to the noble Lord opposite, I very much hope for the sake of all the families that this matter can now be closed. That is really important. We will never know the truth of what happened that evening, but today is a happy day.

[Lord Alderdice]

My Lords, I confirm what my noble friend said: that there is indeed all-party support for the Government’s decision and today’s Statement. I remember well, as do many noble Lords, the events of that day and the shock felt throughout these islands, but particularly in Northern Ireland. While it was a huge tragedy that those 29 people were killed, in my part of the world, because of the extraordinary degree of intelligence that was held in the minds of those people, there was a great fear that many other lives were about to be lost to the terrorist cause because of the death of these extremely skilled and high-serving officers.

Does my noble friend understand that in my part of the world there remains anxiety and concern that the request of the young officer that the 29 should not fly together was set aside? It seems that that approach has not been fully resolved until now, and the Minister is indicating that there will be a further review on procedures. These are not complicated questions. There is a notion that it requires a review of procedures to ascertain whether it was wise to take 29 of the most senior security service officers together, but this is a matter of common sense, not policies and procedures. Can my noble friend understand the anxiety that the Statement creates: that it takes policies and procedures in the Ministry of Defence rather than common sense to deal with the security of our people?

[Lord Astor of Hever]

Again, I am grateful to my noble friend for this all-party support for the decision. Of course I understand the anxiety. I clearly remember that terrible, terrible day and I quite understand how it must have felt in Northern Ireland. As I said earlier, the Royal Air Force has learnt lessons from this disaster and its safety standards are higher than those of any other air force in the world.

[Lord Gilbert]

My Lords, it fell to me, rather sadly, on 22 May 1997 to make my maiden remarks in your Lordships’ House on this very subject. What we have heard today is a lawyer telling us that he disagrees with a decision of another lawyer. This is not a criticism, as I fully understand the deeply held emotions of people on this subject, but we have not heard a thing today about how the crash occurred. I refer noble Lords to col. 559 on 22 May 1997. The pilots elected to fly under visual flight rules, which state that one must at all times be in visual contact with the ground. We know that the highest point of the Mull of Kintyre is 1,463 feet above sea level. About 40 seconds from impact, the aircraft was flying at a height estimated at between 200 and 400 feet. It flew from visual meteorological conditions into instrument meteorological conditions. It was approaching the Mull of Kintyre at least 2,000 feet below the height at which it should have been under instrument flight rules in order to clear the Mull.

I am afraid that I will upset a lot of my friends when I say that there is no doubt whatever in my mind that the crash was down to pilot error. We have not heard a thing today about the plane being unsafe—not a word. That is because it was not: it is a brilliant piece of kit. I am a sorry that I have to disagree totally with this decision. I support the air marshals in the decision that they came to.

[Lord Astor of Hever]

My Lords, I sat through the debate in 1997: I have a copy of it here, including the noble Lord’s speech. I support Lord Philip’s finding that there was room for doubt on the matter and that therefore the initial finding of negligence to a gross degree was unjustified. Lord Philip did not find that the pilots were blameless, but rather that it was not clear beyond absolutely any doubt whatsoever that they were negligent. Those are the four important words: “absolutely any doubt whatsoever”.

[Lord Stirrup]

My Lords, the Minister explained that Lord Philip’s ruling on a point of law means that a finding of gross negligence is not sustainable. However, in relation to some of the issues that have been raised, and perhaps as an aid to clarity for Members of the House, will the Minister tell us what view Lord Philip took of the conduct and findings of the board of inquiry into the most probable cause of the accident?

[Lord Astor of Hever]

My Lords, Lord Philip's review concluded that the test on which the air chief marshals came to their finding of negligence to a gross degree did not meet the standard of objectivity that he judged to be right. Therefore, the finding has been set aside. Lord Philip did not criticise in any way the conclusions drawn by the president of the board of inquiry.

[Lord Eden of Winton]

My Lords, as someone who took part in the first debate in this House on this subject, perhaps I may ask, very quietly and gently, how it is possible that it has taken so long for this conclusion to be reached: namely, that there was not sufficient clarity to confirm the errors attributed to the pilots. As my noble friend said, there had to be a conclusion that there was no reasonable doubt. This point was pressed very hard during the first debate and in all subsequent exchanges. Were it not for the persistence of honourable Members and members of the pilots’ families, this matter might still have been subject to the wrong conclusion. Therefore, as others have done, I thank my noble friend and, through him, the Secretary of State for Defence for having ordered this further inquiry. I emphasise the point with which he concluded his Statement; it is to be hoped that this will draw a line under this very sad event.

[Lord Astor of Hever]

My Lords, I deeply regret that the time that has elapsed has added to the families' distress. The Secretary of State has apologised for the sorrow caused to the families by the original finding of negligence to a gross degree. I share my noble friend's aspirations that this will be the end of the matter.

[Lord Browne of Ladyton]

My Lords, I welcome the Minister’s Statement. I also welcome the report of the review body and wish to be associated with the words of gratitude to Lord Philip and his review team. I particularly commend the clarity of this report to noble Lords; it is in the clarity that the decision is supported, as we have already heard in this House this afternoon. At the heart of this report is the decision that the legal advice that informed the original decision—repeatedly tested, I have to say, including independently—was wrong.

For my part, when I was Secretary of State for Defence, my noble friend Lord O’Neill and others of his group made representations to me and presented me with quite a substantial body of information arguing for just this outcome. I challenged the legal advice, in the sense that I sought independent legal advice. Indeed, I went further because I challenged another point of law—it has not become part of this report—which I think should also have instructed the conclusion that we have today. I regret that I was no longer in post when that process came to a conclusion.

I do not know this, but I am certain that the original legal advice was reinforced by the advice that came to my successor, my noble friend Lord Hutton, when he was Secretary of State for Defence. I have no way of knowing that that was the case, but I suspect it was. While I understand that this appears to be an argument between lawyers, there is a pretty straightforward argument at the heart of this, which Lord Philip and his review team exposed in a simple and uncomplicated fashion. For those reasons I welcome this decision.

I am pleased for the families of Flight Lieutenants Tapper and Cook that this conclusion has been come to today. However, other families were involved in this dreadful tragedy, the anguish of which has been protracted over a long period. I know from my own information that many of those families and individuals in them were disturbed because of the controversy that continued in relation to this. Every time the issue was raised, there was trauma for individuals and families of the other 27 deceased. I seek reassurance from the Minister that the department with responsibility for this will ensure that those families are supported through this process, because some of them are now left in a situation where they do not know what was responsible for the death of their loved ones.

[Lord Astor of Hever]

My Lords, I thank the noble Lord for the points that he makes and his question. I also thank him for his support. I agree with what he says about the clarity of the report. I was aware of the noble Lord’s concerns when he was Secretary of State and, like him, my thoughts are with the families of all the 29. They will be supported by my department and, to start with, they will get copies of the report and the discussions in this House and the other place, and that will be followed through.

[Lord Maginnis of Drumglass]

My Lords—

European Union Bill

Wednesday 13th July 2011 Lords Chamber

Commons Amendments and Reasons

17:04

Motion A

Moved by Lord Howell of Guildford

That this House do not insist on its Amendments 3 and 5 to which the Commons have disagreed for their Reason 5A.

5A: Because the outcome of the referendum should be determined by those who vote in it and should not depend on how many do not vote.

The Minister of State, Foreign and Commonwealth Office (Lord Howell of Guildford): My Lords, we now come to the consideration of the other place’s response to your Lordships’ amendments to this important legislation. Your Lordships will recall that we examined this Bill in great depth over eight sittings in Committee and three days on Report, so I hope we can deal with these matters thoroughly but also reasonably briefly. Your Lordships' House rightly took a good look at the detailed provisions of the Bill. We did our duty in scrutinising it, and we saw fit to make a number of amendments to the Bill—15 in all.

I shall make a brief comment to set the scene before coming to the Motion. There were four sets of issues which led us to focus on these matters today. The Government listened to the well and strongly put arguments on, first, the construction of Clause 18 and proposed amendments in the other place, which we will come to later. We also listened carefully to the arguments put forward on three other sets of issues: the turnout threshold, which is the Motion immediately before us; the proposed changes to the shape of Clause 6; and on the introduction of a sunset—maybe it should be renamed “suspension”—clause. The other place also looked at these things very carefully. On Monday last, the other place disagreed, as do the Government, with your Lordships' amendments on those three latter issues, and it is now for this House to consider and decide whether to insist on your Lordships’ amendments or to accept the message from the other House.

The first of these issues is the subject of this Motion, which relates to Amendments 3 and 5 that were moved with great eloquence by the noble Lord, Lord Williamson of Horton. We had two debates on them, one in Committee and one on Report, and on Report your Lordships voted in favour of these amendments by 221 votes to 216. In contrast, the other place considered these amendments and disagreed to the Lords amendments without division, by consensus.

As my right honourable friend the Minister for Europe summing up the core issue said during the debate in the other place,

“The outcome of a referendum should, in our view, be determined by the will of those who vote and not by how many turn up to vote”.—[Official Report, Commons, 11/7/11; col. 65.]

It remains our view that it is vital that in any referendum held in accordance with this Bill people are able to go out and vote in the knowledge that their active engagement in the process will count and that their vote will count. A threshold for any referendum held in accordance with this Bill would stymie the entire intent of the Bill.

In short, without going over again all the arguments that we have so carefully examined in your Lordships' House, installing a mechanism whereby the will of the electorate is automatically declared unimportant and the power to decide is passed back to Parliament is not the answer, nor is it the answer in the view of the House of Lords Constitution Committee. I shall not delay the House with a quotation from that Committee about the undesirability of thresholds. We saw that on the single occasion where a threshold was used, in 1979, the clearly expressed will of the people was frustrated. That example was used on Monday last by the shadow Minister for Europe who said that it is why many,

“Labour Members have reservations about the use of the 40% threshold”.—[Official Report, Commons, 11/7/11; col. 75.]

In November last year, Chris Bryant MP, who was Minister for Europe under the Labour Government, said that referendums were not a good idea. What interests me—I think that your Lordships also would like to know—is whether noble Lords opposite share those reservations, which they appeared not to share on Report. Please can we know whether they have changed their view?

It now falls to your Lordships to consider whether to insist on these amendments, given the opposition, once again, to the threshold from the other place and given the clear and well informed doubts on all sides about the wisdom, sense and advisability of having thresholds injected into referenda for either these or wider matters. I hope that your Lordships will decide that we need not pursue this issue further. I beg to move.

[Lord Williamson of Horton]

My Lords, we have not proposed any amendment to Motion A, which has been moved by the noble Lord, Lord Howell of Guildford. Accordingly, we accept the decision of the House of Commons to refuse any role for Parliament in the event—a perhaps rather unlikely event—of a referendum with a small or even derisory turnout. It is regrettable that, not just in relation to this Bill but in relation to other issues more widely, we have not established how we might deal with such cases. As we see in the Localism Bill and elsewhere, the referendum is likely to play a much bigger role in government in Britain in the future and on more issues.

Although in this case the House of Commons has refused the role which this House proposed for Parliament, no doubt the noble Lord the Minister will agree that because Parliament is sovereign it could in the future, if it so wished, amend the Act to insert a role for itself as we proposed in relation to a low or very low turnout in a specific referendum. But that issue does not arise today.

[Lord Triesman]

My Lords, I want to associate this side of the House with what the noble Lord, Lord Williamson, has said. The matter will not be pressed today but I would ask the House to understand the reasons in the briefest sense for why this was argued and why I think, even in the earlier example of devolution decisions in the past, people were keen to see some sort of threshold. The proposal for a 40 per cent threshold is not a benchmark which would be insisted on for every kind of vote in every kind of circumstance, although some people might in many circumstances wish to see that figure exceeded.

We are talking about changes in quite fundamental constitutional arrangements. It seems quite reasonable to say that there should be some degree of consensus that is visible and substantial when a major constitutional change is to take place. These changes in relationships with Europe would be significant constitutional changes, which is precisely why this legislation is before the House in the first place. It would be wrong to say that it is not simply a matter of how many turn up to vote because whatever the proportion was you would still have to win the vote as well in order to achieve the result.

To conclude, a number of constitutional changes are before your Lordships’ House in this parliamentary Session. We have had them on constituencies, on AV and in this Bill. We will probably see some in any Bill about reform of your Lordships’ House. In introducing piecemeal constitutional change, always with the possibility of it being adopted without there being real and genuine safeguards, we will end up with a set of jig-saw pieces from different jig-saws all shaken into the same box and without prospect of being joined together in any realistic way or without people making realistic decisions about the overall impact of what we are doing. We deny ourselves the safeguard today and, once again, I suspect that we will regret it.

[Baroness Williams of Crosby]

My Lords, I consider that the very strong and articulate arguments put forward by the noble Lord, Lord Williamson of Horton, and very carefully considered by this House, deserve a little more than the rather supercilious dismissal of the whole argument by the other place:

“Because the outcome of the referendum should be determined by those who vote in it and should not depend on how many do not vote”.

One might say that that is almost contemptuous. I support what the noble Lords, Lord Williamson of Horton and Lord Triesman, have said, although I do not expect them to press the matter to a vote.

17:15

However, I want to make one other reference, because it shows that the noble Lord, Lord Triesman, is right in saying that this issue cannot simply be put on a shelf and forgotten. Let me give three very quick quotations to the House. The first quotation is:

“The Government is under pressure from Tory MPs to reform industrial relations laws so unions would have to secure a turnout of more than 50 per cent in ballots before action could go ahead”.

The second quotation is:

“The Confederation of British Industry has suggested a 40 per cent threshold”,

before any industrial action can take place. Finally, third quotation is from the Conservative Mayor of London, Mr Boris Johnson, who has argued for a “50 per cent threshold” before London Underground could determine a strike.

This is an example of the fact that it is not enough to dismiss the proposals as if they were superficial and politically driven. It is clear in one area after another that the issue of thresholds is alive and relevant, and that already, in other spheres of legislation, there are very strong arguments that thresholds must be seriously considered. I advise the House to be a little careful about simply dismissing the argument for some kind of threshold.

[Lord Howell of Guildford]

My Lords, I hesitate to enter again into the whole great debate on referendums, which really moves us away from the issues of the European Union Bill. My noble friend Lady Williams has again put forward some strong arguments. These are matters that have been debated over the years. When we come to a Bill of this nature, the issues are similar to when one comes to legislation about local elections or elections to the European Parliament. Indeed, I believe there is even a parliamentary election on record in this country where the vote has been below 40 per cent but no one has suggested it should be invalid.

I suspect this debate will continue, but it is the view of the Government that in these circumstances such a threshold would create a charter for the abstentionists. It would be extremely attractive to those who were anxious not to vote and to promote the desire not to vote. It would undermine the whole purpose lying behind the structure of the Bill, which is to check the haemorrhaging of confidence and popular support for the European Union’s development and to reinforce the case for the European Union’s development. That is why I am a little sad to hear those who have dedicated their lives and efforts to promoting an effective and fit for purpose European Union not supporting it. However, I understand the alternative views and I leave the matter there.

[Lord Hannay of Chiswick]

I am grateful to the noble Lord for giving way, but it is a pity that he has to caricature what the original amendment said. It did not suggest that a vote with a turnout under 40 per cent would be invalid. It suggested that it would be advisory and not mandatory—that is completely different. Frankly, some of the arguments that were adduced about the level of participation in the European Parliament elections are not transposable whatever to the area we are currently discussing, which is a national referendum.

[Lord Howell of Guildford]

Perhaps I should have hesitated longer before speaking because we are opening up the whole issue again. The invalidity I am applying is that the referendum would then become advisory, whereas the whole requirement and central thrust of the Bill is that the referendum is mandatory on Governments, not on Parliaments—you cannot be mandatory on Parliaments. That is what I intended to say, so I am sorry if I did not convey it accurately. We have had the debate, so I beg to press the Motion.

Motion agreed.

Motion B

Moved by Lord Wallace of Saltaire

That this House do not insist on its Amendments 6 to 13 to which the Commons have disagreed for their Reason 13A.

13A: Because the decisions concerned would involve an increase in the competences or powers of the European Union in relation to the United Kingdom and should therefore require approval by referendum as well as by Act.

[Lord Wallace of Saltaire]

My Lords, we now turn to the list of decisions in the existing treaties which were previously subject to the requirement of approval by Act and by referendum under Clause 6 but which for the most part would require approval only by Act as a result of your Lordships’ amendments. As with the previous amendments, the Government listened carefully to the arguments put forward after the amendments were agreed by a vote of 214 to 209 in this House. The other place considered these issues further two days ago after having examined in detail the make-up of Clause 6 during its consideration at the start of this year. It has disagreed with your Lordships’ amendments on the basis of our opposition to these changes and by consensus. In so doing, the shadow Europe Minister, Wayne David, said:

“Of course, Members in the other place are entitled to their views, but we have reservations about the proposal that referendums should be confined to these three subject areas, and it is important to put on the record that my comments set out the Labour party’s position”.—[Official Report, Commons, 11/7/11; col. 75.]

It now falls to your Lordships' House to consider whether to insist on its amendments on the basis of the approval of this clause, twice over, by the other place. I would be particularly interested to learn from noble Lords on the Front Bench opposite whether they will reflect the Labour Party’s position today or continue to adopt a different approach.

In moving the amendments on Report, the noble Lord, Lord Hannay of Chiswick, stated that,

“the long list of potential referendums is excessive and disproportionate”.—[Official Report, 13/6/11; col. 552.]

While I appreciate that there are strongly held views on this issue, I should like briefly to repeat why the Government do not agree with this view. The coalition’s programme for government sets out at the start of the section on Europe that,

“no further powers should be transferred to Brussels without a referendum”.

All the decisions listed in Clause 6 in its previous form would constitute such a transfer, as recognised by the other place in its reason for disagreement. As we have made clear previously, Clause 6 consists of five self-standing decisions of great sensitivity, such as on whether to join the euro or to give up national border controls, and seven sensitive national vetoes using a passerelle and avoiding formal treaty changes.

We are debating this Bill in the context of a wide malaise within the European public across most EU member states and a worrying disconnect between the Brussels institutions and the national publics of the member states. Michel Barnier, European Commissioner for the Internal Market, said in a recent speech in Berlin:

“For 60 years we have been building Europe for its citizens and in their name; but too often we have been doing it without them. A malaise has taken hold and the gap between Europe and its citizens has gradually widened”—

that is to say, not just within the UK but across the EU. The deference on which Europe was built, which was given to managerial élites in Brussels on behalf of its peoples but without their informed understanding and consent, and through which substantial powers were transferred to Brussels, has now disappeared. We have to rebuild public confidence in institutionalised co-operation among European Governments. We have to carry our voters with us, not sweep through complex multilateral commitments over their heads.

Successive Governments in Britain have failed to make the case for positive European engagement over the past 20 years or more. Suspicions of French and German intentions, woven into an anti-European narrative, have been endlessly recycled in much of the British media. Some noble Lords might like to reflect on whether there ever was a Faustian pact with the Murdoch press in its Anglo-Saxon but anti-European stance, whereby it would support British Governments so long as they maintained an opposition to stronger European co-operation and in particular to international regulation of media ownership and competition.

If I may speak as a Liberal Democrat, I am entirely comfortable with the constructive approach that this coalition is taking to relations with our European neighbours, large and small, and its positive engagement with the institutions of the European Union. However, it will take us time to regenerate public confidence and to rebuild public trust. The provisions of the Bill, including those of Clause 6, are there to reassure our sceptical citizens that the British Government will not attempt to slip past them unexplained further transfers of power or competence to institutions which at present, sadly, inspire limited loyalty and widespread mistrust.

The other place has now considered the scope of Clause 6 on two occasions. In both cases the other place has approved that the scope of the referendum requirement should incorporate the 12 decisions. On the second occasion it did so by overwhelming consensus. It now, therefore, falls to your Lordships’ House to consider whether or not to insist on its amendments, but I beg to move that it accepts the view of the other place.

Motion B1

Moved by

[Lord Liddle]

As an amendment to Motion B, at end insert “but do propose Amendment 13B in lieu”

13B: Clause 6, page 5, line 49, at end insert—
( ) Where this section requires that the referendum condition is met before a decision is approved, the referendum condition will only be mandatory where a Minister of the Crown lays before Parliament a statement indicating that in the Minister’s opinion the issue in question is of major economic and constitutional significance.”

[Lord Liddle]

My Lords, I beg to move Motion B1 in the name of my noble friend Lord Triesman. The original amendment which this House carried reduced the number of referendum locks in the Bill from 56 to three—that is not counting major treaty change. That was the amendment that we carried and that has been considered by the other place. This amendment substitutes for the position we took on that occasion the view that referendums should be mandatory only where, in the view of the Secretary of State, they are of major economic and constitutional significance. I assure noble Lords opposite that that is fully in line with the policy of the Labour Party.

When the Bill first went through the House we were told many times by the noble Lord, Lord Howell, that all the issues covered were constitutionally or economically significant, but when you actually look at it, that cannot be the case. When you look at the questions of moving from consensus, or unanimity, to majority voting listed in Schedule 1 to the Bill, they cannot conceivably be regarded as constitutionally significant. For instance, there are matters such as the approximation of national laws affecting the internal market, the guidelines of economic policies and excessive deficit procedures. As we know, on one of these items—the British Government changing the list of military products exempt from internal market provisions—the noble Lord, Lord Kerr of Kinlochard, pointed out that we had been arguing for this as a country in our national interest for years in the councils of the Union. So the Bill contains far more referendum locks than those that could be regarded as of major constitutional significance.

Noble Lords on the government Benches are fond of quoting the Lords Constitution Committee when it suits them. What they fail to quote is the major conclusion of the Lords Constitution Committee on referendums—that they should be used only on matters of major constitutional significance. They cannot conceivably argue that all the items covered here pass that test. If we do not apply this test, as in this revised amendment, we are making a major move from a representative democracy to a plebiscitary democracy and that is something that should be of as much concern to Eurosceptics as it is to pro-Europeans.

The other problem with this plethora of locks, as we have argued before, is that they will gravely inhibit the ability of any British Minister or Government to represent our national interests in Europe on a flexible basis as issues come up. No Government will volunteer to hold referendums, not because they fear Euroscepticism but because, as has been shown by all the academic evidence that has studied them, referendums are, in the main, decided by the people on issues other than the question being asked. That is what you get in a plebiscitary democracy. All kinds of issues are decided on questions that are nothing to do with the subject of the referendum. If it is impossible to put issues to referendums, then Britain will be very constrained in its European policy. If this is continued for 10 or 20 years, it is bound to lead to a process of British self-marginalisation in the European Union.

I do not believe for a second that that is what the noble Lords, Lord Howell and Lord Wallace, and the Benches opposite want. However, the truth is that the Adullamite cave of anti-Europeans in the other place and in the Conservative Party, who have insisted on putting the Bill in the coalition agreement, want to make Britain marginal in Europe because they want the Bill to lead to Britain coming out of the European Union.

[Lord Dykes]

Is not the noble Lord also perturbed that at the last annual Ditchley lecture the former Prime Minister, the right honourable John Major, feared that Britain was already a semi-detached member of the European Union?

17:30

[Lord Liddle]

Yes, I heard that John Major had said that. It is a great concern, which will grow as a result of this policy.

[Lord Pearson of Rannoch]

My Lords—

[Lord Liddle]

I am sorry, I am not going to give way any more.

[Lord Pearson of Rannoch]

The noble Lord was telling the House how frightful it would be if the United Kingdom were to leave the European Union. I do not know whether he has seen the latest state of public opinion in this country, which is very much at odds with your Lordships’ House. If the noble Lord cares to read a newspaper—which may not be his regular reading—in the shape of today’s Daily Mail, he will see that the public now would vote by 50 per cent to 33 per cent to leave the European Union if a referendum were held tomorrow. Your Lordships are even more out of touch with the British people of your own generation because among the over 60s the percentages are 61 per cent to leave and only 29 per cent to stay in. That is a poll carried out by YouGov@Cambridge for the political news website Dods PoliticsHome, so it is quite respectable. The noble Lord and your Lordships who do not like the Bill are completely out of touch with British public opinion.

[Lord Liddle]

That is because the argument for British membership of the Union has not been made forcefully. That is why we need to do that in future. However, we are not going to do that as a result of this Bill. That is where noble Lords opposite are wrong.

All our political institutions suffer from major distrust. If, again, you consider the polling evidence on trust in Parliament or trust in the Government, you will find that there is as much mistrust in the British Government, the British Parliament and the British political parties as there is in the European Union. Of course, one does not underestimate the degree of scepticism among the public, but it is ironic that we are discussing the question of Europe today when the Murdoch press is in such difficulty in its relations with the British people. I do not know how many noble Lords in this House have received mail and been approached by members of the public because of the amendments that we carried when the Bill went through the House before, but I suspect very few. The real public anger today is directed at the media—particularly at the Murdoch press and at News International, which more than other organisation has used its position to obstruct positive British policy in the European Union. By going along with this Bill we are sacrificing representative democracy and Britain’s ability to pursue an effective policy in Europe.

I do not think, as I say, that is why the proposers are putting this Bill forward. I think that the Liberal Democrats are rather embarrassed by this piece of legislation, despite what the noble Lord, Lord Wallace, has told us.

It may upset the noble Lord, Lord Pearson of Rannoch, greatly but I have a lot of friends in Brussels. One of them passed on to me a letter that Nick Clegg, the Deputy Prime Minister, had sent to Andrew Duff MEP about this piece of legislation. Towards the end, it says:

“In addition, any referendum to ratify a Treaty change covered by the EU Bill’s referendum lock must first be preceded by an Act of Parliament in order to provide Parliamentary approval and to make provisions for the holding of a referendum”.

We all agree about the Act of Parliament. He goes on to say:

“This would, for example, enable a future Parliament to decide that the provisions in the EU Bill should not apply by amending the Treaty change Bill to that effect”.

The only way I can read that statement is that the Deputy Prime Minister believes that the provisions of what would become the European Union Act 2011 would not apply if, in future legislation ratifying a European decision or a European treaty, a clause was inserted that the question was not constitutionally significant and therefore did not justify a referendum. I would very much like to know whether the Minister agrees with that interpretation of the Deputy Prime Minister’s letter; whether he agrees and accepts that in any future Act ratifying an EU decision a Minister could insert a clause rather along the lines of our amendment; and if so, why the Government refuse so adamantly to accept this sensible amendment? I beg to move.

[Lord Blackwell]

My Lords, the noble Lord, Lord Liddle, called his amendment sensible. We should be clear that it is a wrecking amendment. It requires the Government to assert that a proposal is of major constitutional and economic significance. The noble Lord himself said that no Government voluntarily submit to a referendum. No proposal would come into the scope of this Bill unless the Government had supported it and had voted in favour of it in the European Union, so we can take it that the Minister and the Government would be behind whatever proposal was being put forward. We are then asking the Minister to volunteer to put a referendum through the terms of his amendment. As he said, no Government will voluntarily do that. We have the example of the Government’s record on the Lisbon treaty, which by every measure should have been put to a referendum but which the Government solemnly told the House did not require one. It is partly because of that that we have the mistrust to which the noble Lord, Lord Wallace, referred.

Because of the Lisbon treaty we now have a treaty that allows many changes to the fundamentals of our treaty relationship with Europe, including the removal of vetoes on a whole range of policies covered by Clause 6, and amendments to the scope of the institutions and the powers of the European Union itself through the passerelle clauses. All are to be done through the agreement of Governments without the need for a treaty change, and therefore without the need for a referendum on a treaty change. That is why we need Clause 6: because the Lisbon treaty enabled those changes to be made without a treaty change, and Clause 6 ensures that that is picked up. The noble Lord’s amendment would completely destroy that provision and overturn the view of the other place.

[Lord Hannay of Chiswick]

My Lords, as the person who tabled most of the amendments that are the subject of this debate, I should say a few words. One is meant to rejoice when a Minister eats a large quantity of humble pie. I have to say, I am not rejoicing at listening to the noble Lord, Lord Wallace, eating humble pie for having helped to lead his party to the various majorities that confirmed the Lisbon treaty. Frankly, it is a sad day when the Liberal party recants from the policy that it has pursued for so many years, saying that it is out of touch with the people and has not taken sufficient account of their views.

Leaving that to one side, I took the trouble to listen to the debate in the other place. I think I was the only Member of your Lordships’ House who did so. It was rather a sad occasion, much less well attended than this one. I am glad to see a wonderful cross-section of the views held in this House, which will no doubt be vigorously debated in the minutes or hours that follow. There was practically nobody there. When the noble Lord says that the decision was adopted by consensus, it was the consensus of around 15 or 20 people. They were mainly the people who went into the Lobby against the Government on Clause 18 and managed to muster 22 votes. They are therefore people who, by their own admission, would much rather than Britain was not in the European Union. That is a perfectly respectable position to take; it is the position that the noble Lord, Lord Pearson, takes.

On the matter that we are discussing now, I support the amendment. No one, including me, is persisting with the amendments that we tabled to the Bill and were voted on in this House. They would have reduced the number of referendums substantially, though not to only three. The amendment did not affect the provisions that would have required a referendum if any general constitutional treaty, such as Lisbon, Nice, Maastricht or the Single European Act, had come forward. That was not covered by the amendment that was rejected by the House of Commons. Only the numerous provisions that provide for 56 other referendums were covered.

I should like briefly to make three points in favour of this amendment. First, on marginalisation, given the problems with holding a referendum at particular moments in our parliamentary cycle, there is a risk that people may be minded to vote for reasons that have nothing to do with the question on the ballot paper. Therefore, a British Government would be compelled to reject a change in Europe that they believed to be in the British interest and wished to support because they did not feel able to go to the country in a referendum. This is exceedingly serious. That is why we should all listen rather carefully to someone I respect enormously, Sir John Major, who said at Ditchley in the annual lecture that he gave last Saturday that Britain was at risk of being a semi-detached member of the European Union. I know that is not the object of the Government. I have heard many government spokesmen flatly deny that and say how active we are. However, they should take this risk seriously.

17:45

The second problem is the one that has been alluded to already by the noble Lord, Lord Liddle, which is that this is a major extension of plebiscitary democracy in a country that has hitherto prided itself in putting its faith in representative parliamentary democracy. This is not a small subject. Frankly, what is odd about this is the huge extension of the plebiscitary approach in one sector of our national and international life, which is not applied to any of the rest of it at all. When it was suggested in our earlier debates in Committee and Report that perhaps the Government were in favour of referendums on reform of the National Health Service or the education system, strings of garlic were hung around the government spokesman’s neck. They swore mightily that they had no such thought. But this is a very odd way to go about constitutional change. It really is pretty peculiar to introduce this huge raft of potential referendums into this area.

Finally, on my third point, I support this amendment because the lack of flexibility given by the Bill, if it were to pass and become an Act, is a major danger. It imports rigidity into the whole British approach to Europe and, by transposition, it risks importing rigidity into the whole evolution of the European Union. Institutions that do not have the means to reform and adapt themselves become fragile and risk falling out of contact with what they are meant to be doing. This is a really serious problem being caused here, and these rigidities are liable to damage both the European Union and our own national interests. The purpose of the amendment is to provide a little bit of flexibility where none exists in the present Bill, which is why I support it.

[Baroness Nicholson of Winterbourne]

I was attempting to persuade the noble Lord, Lord Liddle, to give way during his very impassioned defence of this particular Motion. I merely wish to tease him a bit for one moment by saying that it is clear that he does not understand the readership of the Daily Mail—and I am sure that that is the case, as it does not appear to be his favourite reading, from what he said on an earlier intervention. But I do not think that he absolutely understands the Liberal Democrats either. Indeed, I am not actually sure that he listens to the Liberal Democrats. The noble Lord, Lord Wallace, made it absolutely plain in his statement that he was a Liberal Democrat, and I too, as the noble Lord, Lord Liddle, knows, belong to that party.

None the less, the noble Lord, Lord Liddle, made a very serious and profound point, which was reflected in his signature to the important letter to the Times today, which the noble Lord, Lord Hannay, and other immensely eminent noble Lords have signed also. The point, of course, is that the issues reflected in the EU Bill for referendums are of “fundamental constitutional importance”, to quote the letter. The statement made in the letter, which he reflected again today in his speech, is that:

“The Parliamentary Constitution Scrutiny Committee recommends that referendums should be confined to changes of fundamental constitutional importance”.

Of course, economy of the truth is something that others, maybe even Secretaries to the Cabinet, have used to great effect. While I personally disagree profoundly with him on losing a national veto over key areas outlined in the Bill being regarded as of “fundamental constitutional importance”—I think they should be—none the less, I take issue with the noble Lord for the way in which he has clipped the important statements made by the Constitution Committee in its report on referendums in the UK. The report goes on to say:

“There are difficulties in defining what constitutes a ‘fundamental constitutional issue’. Although some constitutional issues clearly are of fundamental importance, and others not, there is a grey area where the importance of issues is a matter of political judgment”.

The committee did,

“not believe that it is possible to provide a precise definition of what constitutes a ‘fundamental constitutional issue’”.

While it is,

“possible to set out in legislation specific issues which should be subject to a referendum”—

[Baroness Quin]

I am grateful to the noble Baroness for giving way. I was a member of the Constitution Committee and was very active in promoting the report on referendums. The noble Baroness should recognise that the committee as a whole was very sceptical about the use of referendums, which it wanted to be used only in very limited circumstances.

[Baroness Nicholson of Winterbourne]

I thank the noble Baroness. Of course she is absolutely correct. She was a member, so how can I argue with her? None the less, on the record the committee pointed out that Parliament should judge what issues will be the subject of a referendum.

I feel profoundly that that is why the other place has clearly supported all these issues that other noble Lords are seeking to remove. The other place has the touchstone of having the pulse of the electorate—after all, the other place is elected. In recent months, four out of five members of the public have said that they believe that transfers of sovereignty should be put to referendum, so I really think that noble Lords would do best to withdraw their opposition to the other place’s position and not press Motion B to a vote. I think it would be an error of judgment on their Lordships’ part.

[Lord Grenfell]

My Lords, I warmly support the amendment in the name of my noble friend Lord Triesman and which has been spoken to so eloquently by my noble friend Lord Liddle.

Occasionally, the peoples of small countries can give those of larger countries some salutary advice. Yesterday I had the pleasure of a meeting and a long discussion with the president of the Slovenian upper Chamber. We were discussing very openly the current political malaise in Slovenia—it is doing very well economically but there is political malaise there—and the fact that the people of Slovenia were completely turned off by the political class, both the Government and the Parliament. We were told that one of the major reasons for this was that they are fed up with having referendums. They are saying to the Parliament, “We elected you to take decisions and to govern, and a Government are there to govern, so why can you do nothing without first asking the people in referendums? We elected you to take those decisions”. I think that they have a point. This is a country that, not so long ago, had no democratic institutions at all. It had no means by which people could express their opinions; they have them now. What is their reaction to the massive referendums to which they are subjected? They say, “That is not the way we want to be governed. We did not give up the yoke of communism to be governed in this way”. Perhaps occasionally it is a good idea to listen to small countries.

[Lord Lester of Herne Hill]

My Lords, of all the people have spoken in this debate, the noble Lord, Lord Hannay, has the greatest practical experience, since he has had the responsibility of seeking to negotiate on the international plane in Europe and elsewhere. If he cannot persuade the House, nobody can. In supporting this amendment and therefore, I am afraid, not acting in accordance with the wishes of the Government, I agree with everything that the noble Lord, Lord Hannay, has said.

As somebody who, as I have said on previous occasions, takes his holidays in Ireland and has seen what has happened in the Irish referendum, I think that the good thing about this amendment is that it places us in roughly the same position as the Irish. They have referenda only according to constitutional criteria such as those in this amendment, so the Irish Government are not fettered with the inflexible overreach of the Bill as it otherwise stands. Therefore it seems to me that this amendment has the merit of Parliament authorising the Minister to exercise her or his discretion in the particular case using a criterion that is well understood and doing so under the authority of Parliament.

‘Otherwise, what we will really be seeking to do is to fetter decision-making by future Governments and Parliaments, even though that would be most unwise. I was once induced by the whipping arrangements to stand on my head and to vote against my own amendment. I then made it clear that I would not make an idiot of myself again in that way, and I do not propose to do so today either.

[Lord Davies of Stamford]

My Lords, this is a very revealing debate. The Government have behaved rather dismissively towards this House. The noble Lord, Lord Howell, has said, rather pro forma, that the Government have carefully considered our arguments. In actual fact, there has been no attempt whatever to come even 5 per cent of the way to meet us. I hope that, as a result, your Lordships will have the courage of their convictions and continue to stand by the principles we voted on previously. I particularly support this new amendment, brought forward by my noble friend Lord Triesman and so ably and vigorously argued by my noble friend Lord Liddle.

I said that it has been a revealing debate. I thought that the noble Lord, Lord Blackwell—the only Conservative to have taken part in this debate, so far at least—really gave the game away. He entirely supported the point I have been making all along: that no Government have a referendum voluntarily at all. If they can possibly avoid it, no Government ever have a referendum; that is exactly what the noble Lord said and exactly what I have been saying. That means that the apparent intention to have referenda on any or all of the 56 subjects in the Bill is entirely hypocritical. There is no such intention whatever. We all know that it would be quite absurd to have a referendum on almost all of them—on 50, at least, out of the 56. The British public would think it a ludicrous waste of time and money, and they would be completely right.

The intention is really entirely obstructionist, which is what I am so worried about. It sends the worst possible signal to our partners in the European Union. Indeed, it presages a period of great difficulty for us in our relations with our EU partners and our ability to positively influence the EU. It is so important that we influence the EU in the right way because it is such a vital element in the modern world, where in so many contexts we cannot possibly achieve our national purposes acting on a purely national basis. We need to form an effective, cohesive bloc with our European partners and argue with them in the relevant international fora.

What does one make of this argument that the Government keep on coming up with—the noble Lord, Lord Wallace, repeated it this afternoon—that this extremely obstructionist concept of having referenda on all those subjects is somehow indispensable in better communicating to the British public the virtues and merits of our membership of the European Union? The noble Lord’s argument really does not have any conviction at all; it does not ring genuine or true. Anybody who knows the first thing about marketing knows that if you want to sell something, the one thing you can never do is be negative about it. If you want to sell it at all, you have to sell it with enthusiasm and genuine conviction. Once you start saying, “Well, this is a problem so we need to apply brakes and think of new blockages”, and so forth, you have lost it completely. The noble Lord was a very distinguished professor of international relations but if he had chosen a marketing career, he would have been an absolute disaster. He would never have sold a single car or tube of toothpaste on the basis of the approach which he outlined this afternoon.

Our enacting this Bill will have two effects. One is that there will be substantive damage done to the interests of this country in specific areas. In an amendment on Report, I raised the issue of a single market in the defence industry. That is quite clearly in our national interests, but we would not now be able to agree to it unless we had a referendum. I went through that and explained that we really would shoot ourselves in the foot—that was the expression I used—if we went ahead with that. The Government did not seriously argue against that case at all. They simply said, “Sorry, we are embarked upon this course and there may be a few things to be thought of”. The noble Lord, Lord Howell, was nice enough to say that I may have some arguments there but that they would carry on regardless—that was more or less the response I had.

Let me give another case, because it is important to look at specific, concrete cases where it may be in the national interest to transfer powers or competences to the institutions of the European Union, particularly the Commission. A few years ago the Commission made a proposal that it should have the right to audit and monitor the accounts of member states. That was opposed by a number of member states, including ourselves and the Germans, and it did not go through. Had it been able to go through on a qualified majority voting basis then we would have had the Commission monitoring the national accounts of Greece. The scandals and mistakes that have occurred with devastating consequences—going into tens of billions of euros, as we all know, and the threat of a banking crisis which undoubtedly will affect us if it arises, and so forth—would have been avoided, because somebody else would have been able to go through those accounts. The European Commission would have been able to do so. Of course all the Eurosceptics in this Chamber and in the other place would have said, “Oh, this is a terrible thing because it is somehow another integrationist step forward”, but it would have been enormously in our national interest.

18:00

Such occasions can easily occur in the future. We all know that we cannot predict the crises and challenges of next year or even six months hence, let alone five or 10 years hence, but we are now denying ourselves definitively an effective possible weapon to deal with such challenges and crises. That is the effect of the Bill. I totally agree with the noble Lord, Lord Blackwell: there ain’t going to be no referenda on this Bill. We all know that was complete rubbish. What this Bill is actually doing is enacting a complete blockage so far as we are concerned.

The second consequence of this, of course, is that it will give a great boost to the enhanced co-operation agenda in the EU. Our partners will know in advance that there is no point in bringing the Brits into the discussion—because they are paralysed; because they have got to say no; because no Minister could possibly even say yes subject to a referendum, because no Government are ever going to want the referendum. Therefore they will not want the Brits in the room from the beginning: that is quite clear. So, they will say we have got to make progress on this, we have got to take a decision on this, we have to do it ourselves, under the enhanced co-operation procedure—which is now of course available under the treaty. We are going to give a tremendous boost to that. This means, of course, that we will not be present at that discussion. We all know that the European Union is a horse-trading organisation, and agreements are often in terms of packages—a perfectly natural thing in human affairs. If we are not part of the discussion in one particular area, it may make it much more difficult for us to do an advantageous bargain or deal in another context which is very important for us. We are going to be steadily and progressively left out of the mechanism of decision-taking in the European Union. That is a very serious prospect and we are bringing it not only closer but so close that it is a damned racing certainty if we enact this Bill in its present form.

[Lord Brittan of Spennithorne]

My Lords, at this stage in our proceedings we have to do two things. First, we have to decide whether we are persuaded by the arguments put forward in the other place that what we have decided here should not stand up. Secondly, we have to decide, if we are not persuaded, whether we stand by what we have done or whether we acquiesce in what the other House has decided.

My fundamental objection to this Bill and my support for the amendments that we passed is based on a view which has not much to do with European affairs at all, but a great deal to do with the British constitution. Up to now, we have had a constitution in which the referendum, until modern times, had no role whatever. We had sufficient confidence in parliamentary government to believe that the representatives of the people should be responsive to the people but not slaves to the momentary wishes of the people, and that that was the right way in which decisions should be taken. A breach was made, 25 years ago, 35 years ago or more, but one breach and one breach only. This legislation changes the balance dramatically by making referenda, instead of extremely rare, things which could be extremely common.

The amendments that were passed by this House mitigate what I consider the damage to the British constitution a small degree. The question is, are we persuaded by the arguments put forward in the other place that the mitigation that we introduced is something which we should no longer support? I am not so persuaded, because the amendments that we put forward were quite modest, still leaving a Bill which breached—in my view unnecessarily and undesirably—the principle of parliamentary government, but they were mitigatory amendments and therefore we supported them in this House, and we passed them in this House. Nothing that was said in the other House persuades me that we were wrong to do so, because the balance of the constitution in which a referendum is a rare instrument, applied only in exceptional circumstances, is one which I continue to support. I am not persuaded by the arguments put forward in the other House that the modest amendments that we put forward, which would reduce the plethora of amendments and other referenda from a flood to a trickle, were undesirable. I was persuaded last time we discussed this that they were desirable, and I remain of that view now.

[Lord Pannick]

My Lords, I too support this amendment, because I see it as a considered response to the views of the other place. It supplies a criterion which identifies when it is appropriate for a referendum to be held. Since mention has been made of the views of the Constitution Committee of your Lordships’ House, of which I am a member, I will remind your Lordships of the three points that the committee made in its report on this Bill.

First, we noted that, in our earlier report on the use of referendums, we concluded that if referendums are to be used they should be confined to fundamental constitutional issues. Secondly, we noted that this Government had expressed agreement with that criterion in the context of the Parliamentary Voting System and Constituencies Act. Thirdly, we concluded that it could not be said that every treaty change which would, under this Bill, require a referendum, would involve a fundamental constitutional issue.

My answer to the point made by the noble Lord, Lord Blackwell, is that I understand this amendment to impose a duty on the Minister in good faith to consider whether the issue is one of economic or constitutional significance, and if so to lay a Statement before Parliament. I do not accept that this leaves matters entirely to political judgment: it imposes a criterion, it is a considered response to the Commons view, and I hope we will support the amendment today.

[Lord Lea of Crondall]

My Lords, I support the amendment. The main consideration is that if the Government do not relent on this question they will be in denial on issues to do with the workability of the scheme. I will give some examples.

First, it is proposed that these referenda be mandatory on the Government. Secondly, it was said by the noble Lord in a previous session that it might be rather inconvenient if there were a whole string of different referendums and so they could be grouped together in some way for the purpose of having them on a certain date. The issue of EU energy taxation being extended or some other legal question on an industrial matter might be put together for the purpose of the referendum day. This taxes the imagination. I have tried to imagine that I am sitting listening to a conversation in a pub in Burton-on-Trent. After all, this is the demotic that we are all being asked to say is so much more important than parliamentary democracy. So, I am sitting in a pub in Burton-on-Trent, and after a discussion on what is running in the 2.30 at Newmarket, Fred says to his mate Alec, “What are you doing on this thing that they want us to vote on tomorrow?”. “No idea, Fred, it’s all Greek to me”, replies Alec.

How do we know that the people want all these referendums? How much time would elapse in Brussels if we simply, as the awkward squad, sat for several months on a whole string of items until the famous day when they could be brought together? That looks so totally unreasonable that people in Europe—they are friends of ours, presumably; we are in a Community—might say, “If you are a member of a club, you ought to be more co-operative than that. If you carry on as you are, you might as well get out”. If we held a referendum on staying in or getting out, I am pretty confident that the staying in vote would win. There might be consensus on that, but it is not the subject of this amendment. This is a vicious circle. If you want to be a member of a club, you have to co-operate. If I carried on like this in my tennis club, it might be suggested that I joined another club more suited to my temperament. The Government do not have the candour to say what they want to do because I do not think that some of their members would agree with that position. However, they want to go as near as they can to implying what they want to do.

In practice, this amendment meets the test set by the Constitution Committee. I think that there is consensus in the House on it.

[Lord Taverne]

My Lords, I will be very brief. I do not think that it can be disputed that the Bill in its present form makes it infinitely more difficult to stick to the constitutional principle announced by the Scrutiny Committee that referenda should be restricted to matters of fundamental constitutional significance. Why would a spread of more plebiscites be so dangerous? It is because the system of parliamentary government has been far superior in preserving certain rights, particularly minority rights, than would be the case with referenda and plebiscites. For example, one can imagine the populist propaganda that would pour out further to restrict asylum seekers and make this a less civilised country. That would apply also to those suspected of committing terrorist offences. We have heard some examples of that. However, this goes beyond minority rights and individual rights. What about protectionism? “British jobs for British people” was Mr Brown’s ill advised slogan. If protectionism had spread throughout Europe or throughout the world after the crash, we would be in an infinitely worse position. As regards tax, is not the example of California, which is now a bankrupt state, a very good reason for not allowing the spread of referenda?

18:15

[Lord Deben]

My Lords, my problem with this amendment is that it seems to me to meet precisely what the Government want. The Government have been arguing that this clause would apply only to matters of constitutional value and that those who have worried about various aspects of it are worrying unnecessarily. We now have an amendment which specifically says that the Minister must say publicly that the referendum concerns a matter of constitutional or economic importance. That seems to me not an unreasonable thing to do when it is precisely what the Government say this clause is meant to do. Although I do not believe in referenda in any circumstances, I am not approaching this from that point of view. Frankly, I am trying to help the Government because it seems to me that they have not convinced all of us that their explanation of this clause is precisely right.

My noble friend Lord Blackwell is entirely wrong: this is not a wrecking amendment—unless the Government’s proposal is a wrecking amendment—in fact, it enhances what the Government have asked for. Your Lordships should say to yourselves, “Whether we are Eurosceptics or enthusiasts for Europe”—as I am—“whatever our view may be, it is not unreasonable to say that referenda should be held on matters of considerable importance, not ones which are not of considerable importance”. It is not unreasonable to put that in the Bill.

As regards the way in which we have approached this, I believe that there are real issues for our stance in the European Union. Those who are Eurosceptic ought to be just as concerned as those of us who are of a different opinion, because unless we are able to argue about minor matters with the freedom which a representative Government have, we will do ourselves down on many of the issues that have been raised. If this amendment merely allows for that freedom, it is important and valuable and certainly does not in any way wreck the proposal.

There is truth in the argument that says that we should watch any constitutional change of this magnitude with great care. I say to the noble Baroness behind me who spoke on the Liberal Democrat position that the more she read what the Constitution Committee of this House said, the more she made the case for the amendment, because the Constitution Committee said that if you are going to have referenda, you should make sure that they are on serious matters. Sometimes it is difficult to decide what are serious matters. We have produced an amendment which says to the Minister, “You have to make up your mind, you have to agree to it and you have to say that publicly”. After all, most of our Bills have a statement on the front that the relevant Minister knows that it accords with human rights. It is not unreasonable to ask Ministers to make that choice. I think that is what the Government want. Why, therefore, have they not accepted this amendment, or something like it?

I end with a plea to my noble friend. He knows that many of us are not entirely happy with the logic of saying that we have to have all this in order to reconnect with the public. Could he not move towards us just a little and be prepared to put in the Bill what he has told us is actually there? That would make us feel that the Government had listened to us and that there was a two-way discussion on this. If he does not do that, I am afraid that I cannot even begin to reach out to the concept that this Bill enhances our relationships and I shall begin to recede into a position of wondering whether it is not intended to make people like my noble friend happier. I am not sure that that is what we should be debating.

[Lord Flight]

My Lords, does the Minister agree that certain noble Lords are perhaps a bit out of touch with British public opinion? It is clear that the British public are against Governments surrendering any further sovereignty to the EU without the consent of the people. That was very much reflected in the attitude taken to the previous Government’s signing up to Lisbon, having promised a referendum and then having ratted on it. The whole point of the Bill, clumsy though it may be, is to provide a deterrent to stop Governments of any political hue giving away yet more sovereignty, and the British people not having a say in that. The noble Lord, Lord Hannay, gave the game away. He was arguing that he wanted a situation where Governments could fudge it and give away a bit more sovereignty and was very unhappy that they might be deterred from doing that through fear of losing a referendum. The whole point of the Bill is to provide an effective deterrent to Governments giving away sovereignty. This amendment would weaken that principle.

[Lord Stoddart of Swindon]

I took part in virtually all the debates that we have had so far on this Bill, and it seems to me that the amendment would be a wrecking amendment. I understand that the Government and the coalition brought forward the Bill after long consideration and to provide assurance to the British people before they surrendered any powers—powers of the people and powers of this Parliament, if we are talking about parliamentary democracy—to the institutions of the European Union. Indeed, we had long discussions about these provisions, and after hearing all the debates I believe that the Government were right to try to get it through this House. Unfortunately, they did not do so.

The Bill went to the House of Commons and I have read the debates. The Labour Party did not oppose these clauses in any reasonable way and did not support Amendments 6 to 13. There was very little discussion on them, as a matter of fact. If it was Labour Party policy, as the noble Lord, Lord Liddle, assured us and as is contained in his amendment, why was it not moved in the House of Commons? That is where it should have been done, but it was not done. What is the gain? If the Labour Party believes in restricting the effect of Clause 6, why did it not try to do that in the elected House? In the circumstances, this House ought to take note of what the other place has done.

[Lord Lea of Crondall]

The noble Lord spent many years in the House of Commons. Is it not the position that the Labour Party was looking at the Bill, as amended by the House of Lords, and that it was not incumbent on the Labour Party to do anything along the lines he suggests?

[Lord Stoddart of Swindon]

It was not incumbent on the Labour Party to do so, but it had the opportunity to do so and did not. If it believed, as the noble Lord, Lord Liddle, said when he moved his amendment, that this should be its policy, why did Members not do it when they had the opportunity in the House of Commons? That is the question that has to be answered. I assure the noble Lord that I know the procedures in the House of Commons. I was a Whip in the House of Commons and I have sat on a number of committees dealing with amendments that have come from the House of Lords. The House of Commons was perfectly entitled to move an amendment but it did not do so.

[Lord Lea of Crondall]

My Lords—

[Noble Lords]

No!

[Lord Lea of Crondall]

I am going to put the matter right for the noble Lord, Lord Stoddart. It was a Bill that had been amended in this House, which is what the House of Commons was considering.

[Lord Stoddart of Swindon]

The House of Commons is entitled to amend amendments that we have made in this House, but did not do so. The Labour Party did not do so because it did not want people outside to get the impression that it was against consulting them about losing further powers to the European Union. That is the real reason behind it.

I know that the House wants to get on, but I just want to say that the noble Lord, Lord Davies, referred to Greece. Of course, it is very clever to do that because we know the appalling state that the eurozone is in at present. He made the reasonable point that if it were a unitary state the Commission would have examined the accounts of the Greek Government. It had the opportunity to do so before Greece was admitted to the eurozone, but it did not do it because it was a politically driven decision. It wanted as many countries in the eurozone as possible, whether they were broke or, like Germany, prosperous. We should be very careful when using the present crisis to undermine the Bill. I would like it to go further but it is the best we are going to have, and I hope that the House will not insist on the amendments on this occasion.

[Lord Lamont of Lerwick]

My Lords, I had not intended to speak in this debate and I will be extremely brief. I rose to speak only because so many of my noble friends have made rather powerful speeches, but ones with which I disagree. I take very seriously the point made about moving too far in favour of plebiscitary democracy. One has to agree that that is a real danger. Balanced against that has to be the fact that the seeping away of the power of Parliament to the European Union is also an extremely serious issue. I agree in general that referendums should be held largely on constitutional issues because they are a good way of settling how we live with each other and how we are governed.

We had quotations from the side opposite and from Cross-Benchers in earlier debates from Edmund Burke and the judgment of members of the legislature. One might quote back at them Tom Paine, who argued that constitutions belong to the people: that it is not for politicians to decide the rules by which government is conducted—sovereignty comes from the people. While I think that referendums should be on constitutional issues—important constitutional issues, as has been said—the totality of our relationship with Europe is a huge constitutional issue. It is therefore right that referendums should play a part in that.

That poses the question: is it right that we should have in this Bill so many different powers and so many different issues all rolled into one that might, as has been said, give rise to a flood of referendums on trivial issues? I do not believe that that will be the consequence of this Bill. That has been said before in our proceedings on the Bill, so I shall not go on about it at any great length. I will say, however, that that will not happen because: first, these measures are likely to come in packages; and, secondly, there are reserve powers—reserved to the nation state and left out of the previous treaties of Lisbon, Nice and Maastricht—because individual countries in the past have wanted to preserve them, and not necessarily Britain. There are other countries in the European Union, and one can look through the minutes of the constitutional convention leading up to the Lisbon treaty to see how some other countries in the past have argued for the veto to be preserved in certain areas. This is not just at the insistence of British politicians.

18:29

[Baroness Quin]

The noble Lord said that he could foresee referendums dealing with issues in packages. In those circumstances, how are people who agree with one issue but disagree with another supposed to vote?

[Lord Lamont of Lerwick]

That question was raised by the noble Lord, Lord Taverne, earlier in the debate. The answer is: just as they vote in elections. They have to decide on five or six issues in an election. In the past, there were referendums in other countries on treaties in which they had to decide on a series of questions raised by those treaties. I repeat my point that where a veto exists, it is not necessarily just at Britain's insistence but because other countries, too, wanted it.

Thirdly, I think we will have referendums only where a British Minister agrees with the proposition that will be put to the people of this country, and where the Government believe that they can win the referendum. For that reason, and with great respect, I do not agree with the point made by the noble Lord, Lord Hannay, that our flexibility in negotiations will be impeded because a certain area is covered by the possibility of a referendum being held on it. If a Minister wishes to argue in favour of something, presumably he is confident that he can sell it to the public. If he cannot sell it to the public, and they are going to disagree with it, perhaps he should think carefully about whether it should be advanced at all. Therefore, although I agree with the general proposition that we do not want to go down the road of having a massive extension of plebiscitary democracy, I do not think that that will be the consequence of the Bill. That assertion has been repeated many times, but the argument is not convincing and I urge my noble friend to support the Government on this.

[Lord Howell of Guildford]

My Lords, I hope that I will be forgiven if I say that I have a faint feeling of having been here before—and forgiven also for not responding to every strongly held view and argument put forward in this debate that was put forward again and again in the past. The Government and I regard some of these arguments as deeply flawed and consider that they do not understand or come to grips with the realities of political life today, either here or in the rest of the European Union. I will also deal briefly, as is the custom, with the Motion—it is not the custom to make long second speeches on a Motion—and with the amendment moved by the noble Lord, Lord Liddle, which goes very much further than anything standing against the Government’s Motion that the amendments be resisted.

On the decisions involved in Clause 6, none is in the grey or insignificant category. They are all there for very strongly established reasons that are largely supported by many other countries. Many vetoes are maintained because the signatories to the Lisbon treaty did not want them to go into the QMV category. They are there because their use could only ever provide for a transfer of competence and power from the UK to the European Union—for reasons that we have explained from this Dispatch Box and that many of my noble friends have explained again and again—and so should be subject to the referendum requirement.

It is difficult to accept that any of the decisions in Clause 6 would not be significant in constitutional or economic terms. Those who say that it stretches their imagination to understand the significance of the measures listed in Clause 6, or Schedule 1, which springs from it, surprise me. Surely a decision on whether to give up our vetoes on, for instance, the multiannual financial framework, border controls or joining the single currency—I refer now to the amendment of the noble Lords, Lord Liddle and Lord Triesman, not to the main one that accepts them—would all fall, under Amendment 13B, into the bracket of something that had to be judged according to whether or not it was significant. This is a completely unnecessary process. Clearly they are of the most profound significance.

I know that the shadow Minister for Europe said on Monday that he considered other items in Clause 6 to be not so important. He exempted the important three—border controls, the European currency and one other—but dismissed the others as paperclips and minutiae. We do not accept that analysis. We firmly believe that the other issues are also of great significance and, when understood in terms of their impact on jobs, work and the processes by which our law system operates, certainly could be subjects of conversation in the pub in Burton-on-Trent, where the noble Lord, Lord Lea, has been listening to conversations.

On the European public prosecutor, I know that it is regarded by some of my noble friends, and by some noble Lords opposite, as not being of constitutional or economic significance. However, it is because it involves affording a supranational body the ability to prosecute citizens of this country within the scope of its own criminal justice system in respect of alleged crimes affecting the EU's financial interests. Someone must decide what that financial interest is and whether the crime has been committed. Is that a paperclip or minutiae issue?

What about the vetoes listed in Schedule 1? Why are they not significant when they all relate—that is why they are there—to the red lines adopted by successive Governments, fought for very hard by the previous Government and sustained by this Government, covering foreign affairs, security and defence policy, economic and tax policy, including issues of the EU's budget, which all of us admit is a red-hot issue, social security, employment policy, justice and home affairs policy, and citizenship and elections? Are these all minutiae, paperclip decisions and things that are never discussed in any pub? I have to ask where some of my noble friends, and some noble Lords, have been if they think that these matters are of no significance, because they include not only domestic issues, where after all Parliament can make and unmake laws, but transfers of power, sovereignty and competence that would almost certainly be irrevocable—in fact, they would be irrevocable.

The amendment before us would, for instance, allow the British Government to relinquish their veto over decisions relating to the multiannual financial framework without first getting the consent of the British people. That is a hugely important decision that Members in the other place were particularly concerned with, and rightly so. The Minister for Europe rightly pointed out that the forthcoming decision on that framework will in effect set budgetary decisions and ceilings for the next five to seven years of the EU's life and development. Are these minutiae, paperclip decisions or matters that people will not understand? I ask my noble friends and noble Lords who think that these matters are insignificant to think again. Their significance is obvious.

It is vital that these matters remain subject to unanimity and that whichever British Government are in office—this matter should be above party—continue to have the right of veto. Similar views are taken in almost every other country in the European Union. We all know what happens when one gets casual about the veto and lets it go. This was the case in the surrender of the veto on Article 122 of the TFEU, which opened the way to fearsome, huge and titanic new financial commitments to the funding of Europe in its present financial difficulties.

The amendment before us would reduce precisely the clarity that we all seek. It would also risk the possibility of judicial review on a decision by the Minister not to consider one of these clear-cut decisions to be significant. The so-called pragmatic flexibility that the noble Lord, Lord Liddle, keeps reminding us about and seeks could well be impeded by his own amendment. He would end up in a quagmire of pragmatic flexibility of his own making. It was too much of this pragmatic flexibility approach in the past that caused antagonism—the turn-off, if you like, of popular support for the European Union and for Ministers’ actions. The ministerial discretion that some of my noble friends and noble Lords call for has become the ministerial indiscretion and undermining of trust and support for the European Union that we are trying to correct.

[Lord Goodhart]

Would my noble friend accept that it is impossible for a court to make decisions on what is done in the Houses of Parliament? If the Minister declares, therefore, that he believes something to be—or not to be—a matter of importance, it is not a matter that could then go to the courts. It would be settled by the House itself.

[Lord Howell of Guildford]

Ministerial decisions are open to judicial review. That is not a matter that we discussed much in Committee or one that we would necessarily want to see operate very fully in this or any other area of ministerial decisions on any aspect of policy. However, judicial review is there and ministerial decisions can be challenged.

The House of Commons has twice approved the scope and operation of Clause 6 following a clear exposition from the shadow Europe minister and his views on party policy on Amendments 6 to 13.

I do not want to take further time meeting the marginalisation argument. Frankly, it is a chestnut, as there is absolutely no impact on Ministers’ discretion and flexibility merely because they have sanctions behind them. Most European member states’ Ministers have sanctions of various sorts lying behind them on the decisions that they reach.

The plebiscitary democracy issue, frankly, belongs to the pre-internet age, before the web and the internet system. We see all around the world the wider public’s insistence on having a say where major issues about the transfers of power and competence away from their sovereign control are involved. That is exactly what would happen here. The idea that there would be 56 different referenda coming along is pure fantasy and does not relate to the actual way in which these issues would arise. There would be no great frequency of referenda; this is not the pattern for the future. It will not be the result of this Bill and it certainly would not be the outcome of the way in which the European Union has operated, is operating, or is likely to operate in the future. It is not in the interests of the 27—maybe soon 28—members to proceed in that way.

I think that the noble Lord would be wise to accept the Motion and the view taken in the other place. He would be wise to reject the amendment and therefore I ask him to withdraw it and accept the Motion so ably moved by my noble friend.

[Lord Liddle]

My Lords, we have had a full debate, and I do not want to take up the time of the House. I just want to make one comment on what the Minister has said. As you know, I believe in the noble Lord’s integrity in putting this Bill forward. I do not believe he is putting it forward for anti-European reasons. I do not think that that is what he thinks, but the truth is that the list of referendum locks contained in this Bill far exceed any reasonable person’s definition of issues of fundamental constitutional significance. On that basis, I would like to test the opinion of the House.

18:44

Division 1

Ayes: 210

---

Labour: 159
Crossbench: 30
Liberal Democrat: 9
Conservative: 3
Independent: 1

Noes: 244

---

Conservative: 149
Liberal Democrat: 62
Crossbench: 18
Ulster Unionist Party: 4
Democratic Unionist Party: 2
Bishops: 1
Independent: 1

Motion B agreed.

18:58

Motion C

Moved by

[Lord Wallace of Tankerness]

That this House do agree to Commons Amendments 14A and 14B to Lords Amendment 14.

14A: Line 3, leave out from beginning to “directly”.

14B: Line 7, at end insert “only by virtue of that Act or where it is required to be recognised and available in law by virtue of any other Act”.

[The Advocate-General for Scotland (Lord Wallace of Tankerness)]

My Lords, we have had a number of interesting debates on Clause 18 at every stage in your Lordships' House and in the other place. We have heard from those who sought to ensure that the clause was more than declaratory and from those who expressed concern that Clause 18 might somehow affect our obligations as a member state. As my noble friends Lord Howell and Lord Wallace of Saltaire have said, and I have made clear, that is not the case. I hope we have assured your Lordships' House very effectively that this clause is declaratory and is intended to be declaratory. It underlines the existing legal position and confirms how directly effective and directly applicable European Union law takes effect in the United Kingdom, no more and no less. It will certainly not change in any way the constructive activist/pragmatist approach that this Government have and will continue to pursue in our engagement with our European Union partners on the priorities that matter to the people of this country.

Although the clause is declaratory, we believe it serves an important and valuable purpose. I echo the words of my noble and learned friend Lord Mackay of Clashfern who said on Report:

“It is important that this declaratory measure should be made because of the theory sometimes propounded that Community law in the United Kingdom derives from the treaty alone by virtue of the European Union legal order. I believe that it is right that we should make it plain at this juncture that that is not so”.—[Official Report, 15/6/11; col. 790.]

I welcome the acceptance by your Lordships’ House and the other place of the principle underlying Clause 18. What we have before us, as we did on Report, is the question as to how we apply that clause and whether the 1972 Act should be the only Act which is to be covered by Clause 18. In this, I fully recognise the reasoning behind the approval which your Lordships gave to the amendment on Report.

The aim in doing so was quite rightly to make the clause as specific and clear as possible, an aim which is wholeheartedly one which one could support. But, as I have already said, I recognise the concerns expressed by noble Lords that Clause 18 should make more specific reference to the European Communities Act 1972. When we debated this on Report, I made it clear that the reason we could not accept the amendment was because we were of the firm belief that a number of other Acts of Parliament also give effect to directly effective and directly applicable European Union law independently of the 1972 Act. Therefore, to accept a provision that referenced the 1972 Act alone would be to accept a change in the existing legal position, which could go beyond what we had always intended.

Although the European Communities Act 1972 is the principal means by which directly effective and directly applicable EU law takes effect in the United Kingdom, the amendment agreed by your Lordships’ House could have created a significant risk that the courts might interpret the clause as restricting the ability of the other Acts of Parliament to incorporate directly applicable or directly effective EU law into our United Kingdom law.

The amendment accepted by your Lordships’ House also removed the phrase, “It is only” from the clause. This wording is intended to make it explicit that it is only by virtue of Acts of Parliament that directly effective and directly applicable EU law takes effect in the United Kingdom. Removing this reference leaves open the possibility of arguments to be made that directly effective and directly applicable EU law could enter into United Kingdom law by other means, which undermines the very rationale behind the clause.

Nevertheless, we have reflected on the amendment and the Government have demonstrated already that we wish to listen to arguments put forward by noble Lords. When there are grounds for a change to be made, we are prepared to make the change. In doing so, I wish to put on record our gratitude to my noble and learned friend Lord Mackay of Clashfern, with whom we have discussed in depth possible alternatives to his amendment to ensure that any amendment in lieu addresses his concerns sufficiently.

The Government subsequently proposed amendments to your Lordships’ amendment in the other place, which we believe achieve these two objectives. These amendments are before us today. It may help your Lordships if I set out how the clause will read if these two amendments are added:

“Directly applicable or directly effective EU law (that is, the rights, powers, liabilities, obligations, restrictions, remedies and procedures referred to in section 2(1) of the European Communities Act 1972) falls to be recognised and available in law in the United Kingdom only by virtue of that Act or where it is required to be recognised and available in law by virtue of any other Act”.

As I have indicated, we are particularly grateful for the engagement of my noble and learned friend and for his advice. My understanding is that he is content with the amendments to his original change.

I am also pleased to note that the other place voted overwhelmingly in favour of the government amendments by 485 votes to 22. These amendments were supported by the Opposition, with the shadow Minister for Europe calling them,

“a modest improvement to what was suggested by the Lords”.—[Official Report, Commons, 11/7/11; col. 98.]

I therefore beg to move that this House acknowledges the considerable support of the other House for these two amendments to the amendment that was proposed by this House. I ask your Lordships to support these amendments today. I beg to move.

[Lord Mackay of Clashfern]

My Lords, as the one who took the main argument on Clause 18 on Report with an amendment which was carried by quite a reasonable majority in your Lordships’ House, I am happy to assure your Lordships that this debate need not be anything like as long as the previous one because I am entirely happy with the proposed amendments and the resulting Clause 18.

The amendments restrict the matter to directly applicable and directly effective EU law. We are not concerned with other Acts which introduce EU law directly—for example, where it uses a particular provision of EU law to make law in this country. We do not need to concern ourselves with that. Originally, in an attempt to meet with the Government, I drafted an amendment which covered that as well as this. But I understand that it is now agreed that we just need to deal with directly effective and directly applicable EU law.

I am not 110 per cent convinced that there are other Acts which do this but, using the suggestion of my noble friend Lord Flight of the belt and braces, there is no harm in adding this because the 1972 Act is now specifically referred to. There is no doubt in my mind that it is the key to this aspect of EU law in this country. I hope that your Lordships will accept these amendments and my gratitude to the Government for their acceptance of the principle of the amendment which was accepted here, and for defending me from various allegations that were made in the other place about my motivation.

[Lord Lester of Herne Hill]

My Lords, in respect of the amendment that the noble and learned Lord, Lord Mackay of Clashfern, successfully passed in this House, I agree with him that the clause now before your Lordships is entirely satisfactory. I just want to say a few things about it. First, I do not think that Clause 18 was ever necessary, except in a political sense. Secondly, I do not think that the law was ever unclear. Thirdly, it is one of the comical aspects of our unwritten constitution that if you ask a group of lawyers or law students the origin of the doctrine of parliamentary sovereignty, they never know the answer. The answer of course is that it comes from the common law. That answer is most unwelcome to a certain kind of thinker, who thinks, “Oh dear, if it comes from the common law, the courts might take it away again”. We do not have to go into that today.

This amendment states the position as has always been made clear in the case law and therefore does no harm. I only wish that it had not been necessary in the first place. I also wish that the original Explanatory Notes that the Government introduced had not been maintained instead of being withdrawn for political reasons for another set of Explanatory Notes, all of which shows the unfortunate aspects of a Bill which is a politically cosmetic exercise in this respect.

[Lord Hannay of Chiswick]

My Lords, I express gratitude to the noble and learned Lord, Lord Mackay of Clashfern, for his work on the previous amendment Will the Minister confirm the Explanatory Notes that were made when the original Clause 18 was put forward and confirm that the Government stand by these Explanatory Notes now? For the avoidance of all misunderstanding, the Printed Paper Office handed to me yesterday a copy of the Explanatory Notes. I shall make two references. My first is:

“This clause does not alter the existing relationship between EU law and UK domestic law; in particular, the principle of the primacy of EU law. The principle of the primacy of EU law was established in the jurisprudence of the European Court of Justice before the accession of the United Kingdom to the European Communities”.

The second reference is:

“Thus this clause is declaratory of the existing legal position. The rights and obligations assumed by the UK on becoming a member of the EU remain intact. Similarly, it does not alter the competences of the devolved legislatures or the functions of the Ministers in the devolved administrations as conferred by the relevant UK Act of Parliament”.

It would be very helpful if the noble and learned Lord could confirm that those Explanatory Notes, only as Explanatory Notes, remain as they were originally applied to a different Clause 18 from the one that this House is about to accept.

[Lord Wallace of Tankerness]

My Lords, I thank my noble and learned friend Lord Mackay of Clashfern, my noble friend Lord Lester of Herne Hill and the noble Lord, Lord Hannay, for the support that has been given to these amendments. With regard to the Explanatory Notes, I can confirm to the noble Lord and the House that, as is customary, the Government will review the Explanatory Notes in their entirety. The notes on this clause will be considered as part of the exercise and we expect that there will have to be some consequential change to reflect the new wording of the clause. But that apart we have reviewed the Explanatory Notes in the light of proposed changes and consider that the notes, as drafted, accurately reflect the purpose and effect of Clause 18. I hope that that gives the reassurance that the noble Lord is seeking. In the belt-and-braces spirit which my noble and learned friend mentioned, I hope that the House will support these amendments.

Motion agreed.

Motion D

Moved by

[Lord Howell of Guildford]

That this House do not insist on its Amendment 15 to which the Commons have disagreed for their Reason 15A.

15A: Because Part 1 and Schedule 1 are not provisions to which it is appropriate to apply a sunset provision.

[Lord Howell of Guildford]

This is the issue of the sunset clause. I believe there is another amendment to be moved which is related but with a slightly different emphasis. We debated this proposition at considerable length throughout your Lordships’ consideration of the legislation. We know there are a number of sunset clauses in a number of pieces of legislation, for the most part for specific operational reasons. The Lords has expressed concern over the granting of new extraordinary powers for the Executive, such as in response to the firefighters’ dispute eight years ago. In all these sorts of cases, Parliament has sought to ensure that these powers were retained for only as long as was necessary.

With the Bill there has been a rather different line of argument. There are those who have a general dislike of the Bill, which they are perfectly entitled to have, and there have been arguments put forward in favour of a sunset clause because, it is claimed, this legislation seeks to bind future Parliaments. I repeat what was observed in another place—I perhaps have not comprehended the value of any counterarguments to it—that all legislation by a Government can bind future Governments, and maybe the Government of the day wish it would. All legislation is reversible. The need for additional provisions in the Bill seems weak.

Instead of repeating my arguments, I will simply quote from the European Scrutiny Committee, which put the matter very clearly:

“All Parliaments legislate for the future. Laws passed by one Parliament do not contain a sunset clause at the Dissolution. The real point is whether a government can, in law, make it difficult for a future Parliament to amend or repeal the legislation it has passed; in our view it cannot. Our conclusion therefore is straightforward—that an Act of Parliament applies until it is repealed”.

Again and again there has been the proposition that somehow this type of legislation weakens Parliament, but Parliament remains central to the whole pattern of agreeing by Act of Parliament whether there should be referenda. The argument for the sunset clause is that each Parliament should be given the chance to decide whether its sovereignty has been curtailed by the Bill. We do not accept that case. As the Minister for Europe said in another place:

“The Bill does not substitute the British people for Parliament, for Parliament will continue to have a central and strengthened role”. —[Official Report, Commons, 11/7/11; col. 74.]

Parliament would have the opportunity on each occasion to approve a transfer of competence or power and to approve the holding of a referendum. In contrast this provision would actually reduce the control that Parliament would have on treaty changes and passerelles until the Government of the day decided whether to revive Part 1 of and Schedule 1 to the Bill. It would actually have the counter-effect of that, which I believe is the intention of those who put it forward. In any case, we have a system that is designed precisely to review how all Acts of Parliament are used once they are enacted. The previous Government introduced a system of post-legislative scrutiny. Well done them, because under that the Government of the day are required to publish a memorandum to Parliament on the operation of each Act of Parliament up to five years after the commencement of the Act. This is considered by relevant parliamentary committees, which can decide whether to conduct a detailed examination of that legislation. I ask again: what is the point of this additional proposed provision?

I am happy to repeat the commitment of my friend the Minister for Europe and say that this Government agree that this system is a useful tool that should be exploited and that a future Government must publish a full report on how the Bill has been used within five years of this legislation becoming law. This will result in the clarity and the reflection that colleagues in the other place rightly seek, but without arbitrarily depriving the British people of their say at the end of this Parliament.

This has now been considered by the other place, which has disagreed with your Lordships’ amendment by a very substantial majority of 89 votes. Therefore, it falls to your Lordships’ House to consider whether to insist on the amendment or accept the clear and considered view of the other place; and whether to accept, in the light of what I have said, that this is a necessary amendment or challenge to the Government’s Motion that needs go forward. I personally doubt that it need go forward and I urge your Lordships to let the Motion stand.

19:15

Motion D1

Moved by

[Lord Goodhart]

As an amendment to Motion D, at end insert "but do propose Amendment 15B in lieu"

15B: After Clause 21, insert the following new Clause—
“Suspension of section 6 and Schedule 1In Parliaments subsequent to the Parliament in which this Act is passed the Secretary of State may by order approved by a resolution of each House of Parliament provide that any provision of section 6 or Schedule 1 shall be suspended for the duration of that Parliament or for any lesser period.”

[Lord Goodhart]

My Lords, Amendment 15, which the other place rejected, provided a kind of sunset clause for the whole of Part 1 but gave power for future Parliaments to restore the Bill. Amendment 15B replaces Amendment 15 with more limited powers. In the first place Amendment 15B applies only to Clause 6 and Schedule 1 and not to the rest of Part 1. Secondly, the original Amendment 15 cancels the operation of Part 1 and Schedule 1 at the end of the duration of the present Parliament and leaves incoming Governments to revive those provisions of the Bill. Amendment 15B leaves Clause 6 and Schedule 1 in force unless and until a new Government wish to suspend them, and suspension cannot go beyond the duration of the Parliament which suspended them.

Thirdly, the original Amendment 15 is all or nothing. Part 1 and Schedule 1 either are entirely out of action or are entirely in force. Amendment 15B provides for the suspension of any one or more of provisions contained in Clause 6 or Schedule 1. Amendment 15B is therefore much more flexible than Amendment 15, and that is a very important difference. It is surely plain that some of the decisions that may lead to a referendum under the Bill will not be appropriate for such a referendum because of the limited importance for ordinary citizens of that particular decision or because of the uncontroversial nature of that decision. In such cases Amendment 15B allows the Government to proceed by order, which requires the support of both Houses but without a referendum.

We need flexibility. Without it we may waste money because a decision which is not controversial has nevertheless to go through the process of the referendum. Without flexibility we may lose the benefit of useful decisions because a referendum is of little concern to the majority of citizens who have no objection to it and therefore a small minority are able to defeat the Government. Without flexibility the Government may decide not to go ahead with a decision which is useful and non-controversial but not important enough to justify the cost and effort of a referendum.

Nothing in Amendment 15B would affect the referendum lock in the present Parliament, but future Parliaments should have some control over it. I recognise that the amendment would give the Government and Parliament power in theory to avoid referendums on matters where a referendum would have wide support—especially, for example, in the case of adopting the euro—but there is no likelihood whatever that any Government would refuse a referendum in cases of that kind. In any event, if your Lordships' House accepts the principle of Amendment 15B, I can see no objection to amending it so that it does not apply to those categories where there is likely to be a strong demand for a referendum.

This Government propose to rely on favourable referendums in specified circumstances. So be it, but we should not enforce the same restriction on future Parliaments—that is for each Parliament to decide. Does the Minister recognise that it is impossible for the Government to prevent a future Government exercising their power without a referendum to bring in legislation? If that is so, it makes the situation somewhat different, but it seems nevertheless desirable for Amendment 15B to be included, because it makes simpler provision for varying the Bill now being enacted.

It is desirable to take Amendment 15B on board. I hope that the Government will consider doing just that.

[Lord Willoughby de Broke]

My Lords, this is again a wrecking amendment, which is how the noble Lord, Lord Blackwell, described the previous amendment. It goes to the very heart of the Bill and would neuter it completely if it produced a sort of son of a sunset clause. People outside this Chamber and outside Parliament will simply not understand what the House of Lords is doing if it votes for it. The Bill is intended to give British people a voice and protect them from further laws and further integration produced by Europe. They will not understand if the House of Lords supports this amendment, which goes against the whole tenor of the Bill.

On the earlier amendment, the noble Lord, Lord Liddle, made some great play about the lack of trust in politicians and Parliament in general. Although he would not interpret his remarks that way, I take them to support the use of referendums, precisely because of the lack of trust in Parliament and government in general in this country. The noble Lord, Lord Grenfell, prayed in aid the people of Slovenia, who apparently trust their Parliament and say that they do not want referendums. But that simply is not the case in this country. The voters in this country do not have the same faith in their Government and Parliament as the people of Slovenia apparently do. If the amendment is carried, it will drag Parliament even further into the contempt that British people already have for it. It is extremely dangerous, and I hope that it will be voted down by this House.

[Lord Radice]

The House of Lords is a very effective revising Chamber and has proved that on this Bill by making it better and more manageable than it was at first. However, the House of Commons has not accepted our amendments, except in the case of the definition of parliamentary sovereignty—I congratulate the noble Lord who so ably pioneered the provision that we have now just passed. We have just rejected the idea of confining referendums to major issues. Therefore, there is a case for a sunset clause.

This Bill is an attempt, as the people who introduced it in the House of Commons have made quite clear, to bind successor Governments, and it involves a major extension of referendums. In a sense, it is a major constitutional innovation. Noble Lords who have so ably supported Governments of the past in Europe have said to us that we should take seriously the danger of marginalisation that might arise from the Bill. Therefore, there should be a reassessment mechanism in it. I consider that we have a new, mild and flexible version of that in this amendment, which it would be very useful to Parliament to have. We should go beyond what the Labour Government introduced, which has been mentioned already; that is, a committee report on whether a Bill has been effective. Perhaps that should be part of the process, but we should then go on, as the noble Lord, Lord Goodhart, said, to have a mild version of a sunset clause.

[Lord Lamont of Lerwick]

My Lords, sunset clauses are appropriate in some legislation: for example, when one has emergency legislation and Governments take exceptional powers. Those powers may have an effect on civil liberties for instance. Counterterrorism Bills sometimes have such an effect. However, this is not emergency legislation; it is legislation that seeks a long-term and permanent change in our relationship with Europe.

There is another reason why a sunset clause would be inappropriate. It is in effect, as proposed, a reversal of primary legislation via a resolution. It is a fast-track procedure for removing legislation. In a way, it is a bit like the Article 48(6) provision in the European Union treaty which this Bill is designed to act as a safeguard against.

One is either for or against this legislation, and many noble Lords have given reasons, powerfully and eloquently, why they are deeply opposed to it. However, they cannot have it both ways. To suspend the legislation, either in whole or in part, is to fudge the decision. If noble Lords do not agree with the legislation, they cannot hide behind amendments that would allow the referendum requirement to be taken out while maintaining the appearance and the structure of the legislation giving effect to consultation and decision by the people.

As the noble Lord who speaks for UKIP said, this will arouse suspicions among some members of the public that Parliament is taking away the right to be consulted while giving the appearance that that right still remains. I can think of nothing that would be more likely to undermine trust than to maintain the legislation on the statute book but incorporate into it a provision that would take the guts out of it.

19:30

Two versions of the sunset clause have been put forward: Amendments 15 and 15B. Amendment 15, of course, goes very wide, because in effect it allows the disapplication of the whole of Part 1 and of Schedule 1. I do not agree with the clause for the general reasons I have given, but in addition to the general reasons, Amendment 15 has some unintended consequences. It removes not just the referendum lock but the Act of Parliament lock as well, in some instances. Passerelles and parliamentary control under Clauses 7 and 10 are to be removed.

Many noble Lords who have been against the Bill have said, “Oh, but we approve of the parliamentary control; we approve of the need to have an Act of Parliament if there is a transfer of power”, but under this wider version of the sunset clause, that, in many instances, will go. Not only the referendum lock will go, but the parliamentary lock as well. That might be why the noble and learned Lord, Lord Goodhart, has put forward a narrower version of it that concentrates on Clause 6 and Schedule 1. Of course, that is even more pick and choose, because it says that any provision—not the whole of Clause 6 or the whole of Schedule 1, but any provision within Clause 6 or Schedule 1—could be suspended. Again, I put it to the House that this will give the appearance that the referendum lock remains, but it will in effect be removed when the Government decide that it would be convenient to remove it. It also, in some instances, does away with the parliamentary lock where that falls under Clause 6. For example, there would be no requirement for parliamentary approval if there was a decision to join the European public prosecutor, or no parliamentary lock as regards the passerelles under Clause 6.

The noble Lord pointed out that this was just for the duration of the Parliament; it would have to be renewed in future Parliaments and would be suspended only temporarily, but if you suspend a particular provision temporarily and give away the power under the temporary suspension of that provision, you have given it away permanently. There is not much use in having the power back after you have given away the power that you originally wanted to protect. This is very dangerous. It is far-reaching and would give rise to a very cynical reaction among the public if carried.

[Baroness Williams of Crosby]

My Lords, the noble Lord, Lord Lamont, always argues very effectively and has done so yet again. He invariably falls back on logic and argument rather than on attempts to raise emotional feelings of one kind or another that are inappropriate, but I want to put to him a rather different point. He said, which was fair enough, that this kind of sunset clause often applies to emergency legislation, in particular to emergency legislation that leads, for example, to exceptional powers being taken by a Government that need to be looked at later in a rather less heightened atmosphere in order to decide whether they should remain on the statute book. Many of us will know that emergency legislation passed back in the 1940s still sits on the constitutional pattern of far too many countries that use it to suppress human rights, so one has to be very cautious about that kind of thing.

There is another very different factor about this legislation. It is highly speculative legislation. It makes assumptions about the kinds of issues that are likely to come up over the next few years. We know enough from what we are reading even today that major issues are likely to come up. These go all the way, as John Major said at the Ditchley Foundation only a few days ago, to the question of how one changes eurozone practices—whether one will look again, for example, at the tendency towards an increased or enhanced stability pact. These issues will have the greatest impact on the UK, even though we are not, of course, a member of the eurozone. In this respect the noble Lord, Lord Radice, was absolutely right to say that we cannot know what might arise. The whole point of the sunset clause as we are presenting it is that it gives the British public, in the broadest sense of the word, an opportunity to see what the impact has been of this speculative legislation, which some say will make it very difficult for our representatives in Brussels to represent our own national interests. That is an untested statement. The other untested statement is how far they will feel heavily dissuaded from expressing British national interests for fear that it might set off a referendum.

The great beauty of the sunset clause is that it will unquestionably turn the Bill into a general election phenomenon—an issue that will have to be considered at the next general election—which is, in the mind of many of us, exactly what it ought to be. The British public will be able to consider in the round whether it is wise or unhelpful legislation and to do so in what will undoubtedly be a very substantial turnout, and because this will be an issue about whether this legislation will continue, it will come at the right moment and in the right way before the British people so that they can decide.

[Lord Empey]

My Lords, I said on Third Reading that the proposal for a sunset clause was ill conceived. I believed that to be true then, and I believe it to be true now. While I was not present for the debate in the other place, I did read it today and unfortunately a lot of unkind things were said about this House, which is unusual. A consistent theme throughout the discussion on the amendments was that a number of them were wrecking amendments. That is how this amendment was seen by a number of Members in the other place. The noble Lord, Lord Hannay, said that only a small number were there, and that was undoubtedly true, but to some extent that makes the point, because if Members in the other place were actively supportive of the decisions of your Lordships’ House some weeks ago, why did they vote with their feet and not turn up to debate some of these amendments? They obviously did not see merit in them. That is the only reason I can think of why they would abstain in such a way.

[Lord Goodhart]

My Lords, I point out to the noble Lord that Amendment 15B was not put to the Members of the House of Commons. It is a newly introduced amendment and what he is saying has very little bearing on this issue.

[Lord Empey]

I was referring to the remarks of the noble Lord, Lord Hannay, and commenting that of course very few people participated in the debate, so that point is valid. The noble and learned Lord is right to say that this particular amendment was not before the other place, but at the end of the day the purpose is the same. The noble Lord, Lord Radice, described it as a “soft sunset”. Well, whether you have a hard sunset or a soft sunset, it is still a sunset, and at the end of the day I just wonder, in view of our discussions in this House about our own future, whether it is wise for Members of this House to send anything back to the other place that contains the word “sunset”. It is probably not the best thing for us to do. There is no constitutional imperative to send this back to the other place. If we believed that there was, it would be the duty of this House to do so. I just do not see that in front of us.

On the continuous use of the word “flexibility”, we all like flexibility in government, but it is a euphemism for something else. It means that Ministers can go on to take decisions, and it is precisely that flexibility that has existed for the past 35 years that leads to the Bill being in front of your Lordships’ House tonight. It is unfortunate that we have to go through these procedures, but I see no alternative but to go ahead with the Bill, and I believe that the amendment as currently drafted, or in its original form, casts a dagger at the very heart of what the Bill stands for. I hope that noble Lords will reject this proposal.

[Lord Hannay of Chiswick]

My Lords, I support the Motion of the noble and learned Lord, Lord Goodhart. I preface my remarks by referring to my noble friend Lord Empey’s statement about not angering the House of Commons. It would be unwise, frankly, if we went into a pre-emptive cringe at this stage. I am not sure that that would help us very much in the difficult debates ahead.

No noble Lord in the House today has addressed Amendment 15. We accept that it was voted against by the House of Commons, and in any case it is not permissible for us to return to the identical amendment again. That is not being suggested. The amendment of the noble and learned Lord, Lord Goodhart, is meant to produce what has been called by the noble Lord, Lord Radice, a “soft sunset”.

I listened to the debate in the other place and one of the things I heard there quite surprised me, although on reflection I think it was entirely valid. The Minister for Europe was questioned by one of the not terribly friendly members of his own party who would rather see us outside the European Union. He was asked whether it would be possible for this Parliament or a future Parliament to insert a referendum requirement in the primary legislation that approved the matters in this Bill that are not subject to a referendum but are subject merely to primary legislation. He replied, “Yes, absolutely. No problem. If that is what Parliament decides, you can add another referendum—just like that—in the primary legislation”. That startled me and led me to think that the noble Lord, Lord Lamont, when he talked about it having both ways, might not have heard of that development in constitutional practice.

When the Minister replies to the debate, can he say whether the converse is also true? In the primary legislation that would have to be introduced in the House of Commons on the back of a decision by the government in Brussels to go ahead with one of these matters, could Parliament simply waive in that legislation the requirement that is in this legislation? It will be interesting to hear what he has to say about that. I do not see that the proposition that the Minister for Europe agreed to—that a referendum requirement could be added where one was not required under this legislation—could be valid if the contrary proposition, which I have also put, was not valid. Perhaps the Minister will reply to that.

Frankly, with some of the arguments that have been introduced about how flexibility is a dirty word, my heart fails me when I think of people strapping themselves to masts, waiting for the ship to go down and saying, “Thank God I am tied to the mast and I cannot swim”. It is not a very good argument. The circumstances in which flexibility could be exercised are extremely limited and will be difficult to invoke; this amendment simply suggests a way of doing it. We would be very wise if we were to once again ask the Commons to think again about this matter. This is not a wrecking amendment and, for the reasons I have given, I do not think it takes the matter much further than it is already, with the possibility of the House of Commons varying the provisions at the moment that it enacts the primary legislation. I hope that some further thought will be given to this and that we will not all turn ourselves to the belief that this is a wrecking amendment, which it is not intended to be.

19:39

[Baroness Falkner of Margravine]

My Lords, I shall speak against Motion D1. The reasons for doing so are quite straightforward. The noble Lord, Lord Hannay, commented on flexibility and how important it is that in going forward in unpredictable circumstances we should have flexibility. While I agree with him there, I am not clear that Amendment 15B provides that flexibility because, in order to have a suspension of Section 6 or Schedule 1, it would require us to have the approval of both Houses. Does the noble Lord believe that the approval of both Houses could be arrived at in a manner which did not revisit all of the contentious issues in Section 6 or Schedule 1? If they could have been debated without extensive deliberation or scrutiny—call it what you will—we would not have spent as much time as we have on the Bill. On the other hand, flexibility nevertheless exists in the ability of a future Government to repeal either the entire Act, as it will be by then, or sections of the Act.

My noble friend Lady Williams spoke of the importance of the people of this country having their say on a sunset clause—I prefer to call it a suspension clause—in a general election. If the Act went forward unamended, the people could still have their say because there could equally easily be a debate on whether or not this Bill should be repealed by a new Government were they to win the election. I did not intervene in the debates on the earlier amendments but this debate has been about trust in the people and the constitution, and much has been made about the move to plebiscitary democracy.

The theme of the noble Lord, Lord Liddle, throughout the course of the Bill has been his anxiety for the Liberal Democrats and whether they feel awkward and embarrassed by it. The presumption underlying those comments—and the noble Lord, Lord Liddle, has been a member of my party, the Liberal Democrats —is that we are reluctantly going along with these measures and that there is no philosophical underpinning whatever. During the passage of the Bill we have had commentary about Burke and parliamentary democracy, and about an hour ago the noble Lord, Lord Lamont, referred to Tom Paine. The philosophical underpinning for why the people should be trusted comes from no less a person than John Stuart Mill. He said:

“A state which dwarfs its men, in order that they may be more docile instruments in its hands, even for beneficial purposes, will find that with small men no great thing can really be accomplished”.

That is why we have supported the Bill and why we trust the people; they are ultimately sovereign.

[Lord Liddle]

My concern throughout the Bill has been for the position of Britain in Europe and that it should remain an active partner in the European Union. I fear that the provisions of the Bill will ultimately prevent us from being so. I am sorry that some Liberal Democrats appear to think that this was not a matter of high principle: it is a matter of high principle to which I have committed my political life.

[Baroness Falkner of Margravine]

When the noble Lord’s party returns to government, we look forward to it engaging with the country in debating whether the provisions of this Bill should be repealed. We look forward to engaging with it in that debate.

[Lord Armstrong of Ilminster]

My Lords, I fear that some of the speakers in this debate are guilty of a terminological inexactitude. If we wait here for another hour or two, as seems quite likely, we shall find that the sun sets and there is nothing we can do about it. That was the effect of Amendment 15—the sun was going to set when there was a general election and there was nothing we could do about it. Amendment 15B is quite different. It is not a sunset at all: if it is, it is a voluntary sunset—something I have never heard of before.

The Act, as it will be, remains in force after an election and unless and until a Minister wants to amend Section 6 or Schedule 1, partially, not at all or wholly. That seems to be eminently sensible. It leaves the discretion after the election entirely in the hands of the new Minister, the new Government if there is one, and a new Parliament. It does not force anybody to do anything—it gives them the opportunity to do it. It is a much easier way of doing it than having to go through the process of repeal or partial repeal. It seems to me to be eminently sensible and flexible and I hope the House will give effect to Amendment 15B this evening.

[Lord Maclennan of Rogart]

My Lords, if the purpose of this Bill were gesture politics, with no outside effects, then perhaps it would be possible to go along with it. However, the provisions proposed in this amendment are reviewable by a Government and are by no means gestures alone. They are bound to have a significant effect on the ability of our Ministers negotiating in the Council to decide issues of massive importance to the people. We have been told that none of those issues will be considered by the people in the lifetime of this Parliament so the Government appear to be putting on ice any questions about improving the efficacy of the working of the European Union until the end of this Parliament.

My noble friend who opened this debate said that a subsequent Parliament could amend this Bill or throw it out. He is right, but he also said in an earlier debate that the Government have no intention of using this Bill in this Parliament. If that is the case, why are we having to legislate at all? It seems to me that the appropriate time to do that would be in the next Parliament if that is when these measures are supposed to bite. The notion that we are legislating for the future in this way is bound to have almost no effect on public opinion beyond putting up scaremongering notices about the possibility that after the next election we will all collapse in a heap and be walked over by our fellow members of the European Union. That is guaranteed to make the issue of Europe a very divisive one at the next election.

The amendment of my noble friend Lord Goodhart seems to be eminently sensible. It has not been rejected by another place. It is new and it is not merely differently phrased but differently conceived. I supported the sunset amendment as it was drafted but I am happy to support my noble friend’s revision. It would allow Ministers to decide, in the light of the circumstances at the time, whether the issue before Europe and before this country was of such massive importance that it would be inappropriate to prepare a referendum. My experience of dealing with European matters in Parliament suggests that debates are long and thorough about European issues. The public are made completely aware, by debate and deliberation, what the issues are. Surely some of those who are supporting this Bill must remember the debates on the Maastricht treaty—the hours after hours in which Members of Parliament considered these matters. To suggest that the public were not aware of it is simply to deny the facts of history.

The noble Lord, Lord Willoughby de Broke, suggested that this was a wrecking amendment. It is not—it is an amendment that enables the Government of the day to decide whether the national interest is better served by legislative process—by debate, as we had over Maastricht—than by having a prolonged debate in public leading to a referendum.

[Lord Willoughby de Broke]

My Lords, I took part in the debates on the Maastricht treaty. I remember them very well. The central point about those debates and about the way the treaty was pushed through is that we were not given a referendum. There was a big debate here on whether we should have a referendum on the Maastricht treaty. Unfortunately, that Motion was lost and we did not have a referendum, and that is part of the problem with the EU in this country. The people have never been given a vote since the referendum on the Common Market in 1975. This sort of amendment will stop them having a say, which they should be given.

[Lord Maclennan of Rogart]

We live in a representative democracy and elected Members of Parliament are put into that position of authority to act in the best interests of the citizens of this country. The notion that by not having referenda we are somehow denying the fundament of our parliamentary democracy seems to be a complete and utter nonsense. It is not only the Maastricht treaty that was carried through by Parliament in that way. Mrs Thatcher, when she was Prime Minister, also introduced the Single European Act which introduced majority voting and there was no question of a referendum about that. If you look at the opinion polls of those years, and indeed of the years around Maastricht, the public were far more supportive of our membership of the European Union than they are now.

I heard the remark of the Minister for Europe, Mr Lidington, that it is only people of my generation who are supportive of the European Union. When we were active young Members, supporting the European Union, the public listened and believed what we were saying—that it was in the interests of the people of Britain. Now we have a new generation, a whole generation younger than me, who claim that it is our fault that the public are not with them. The nonsense of that is that they have never seriously tried to explain what the purposes of the European Union are; what its achievements are and what its goals are. That is why we are wasting our time with this ridiculous piece of legislation, which is a waste of parliamentary time in scrutiny and is deceiving the public. We have been told it will not be voted on. There will be no referendum this side of the next election and after that the picture will all change.

20:00

[Lord Judd]

My Lords, the noble Lord knows by now that I have unlimited respect for his consistent contribution on European matters. This peroration of his is very powerful. Would he not agree that the trouble with this wretched piece of legislation is that it could not be better designed to undermine our influence on the mainland of Europe?

[Lord Maclennan of Rogart]

My Lords—

[Lord Shutt of Greetland]

My Lords, I believe that the House is ready to hear the closing speakers. I sense where the House is.

[Lord Maclennan of Rogart]

My Lords, I had sat down and was perfectly happy to hear the view of the noble Lord, Lord Judd. The House is eager to take a decision.

[Lord Triesman]

My Lords—

[Lord Stoddart of Swindon]

My Lords—

[Noble Lords]

Oh!

[Lord Stoddart of Swindon]

I insist—

[Lord Triesman]

My Lords, either the Whip on the other side is making a judgment that he is inviting the House to endorse or he is not. I do not mind either way but I suspect he is right.

[Lord Stoddart of Swindon]

My Lords, this is perfectly out of order. If necessary I will get the House to vote on whether I can speak.

[Lord Shutt of Greetland]

My Lords, I believe that I heard the voice of the House, and I believe that the House is very clear that it wants to hear the closing speakers.

[Noble Lords]

Hear, hear!

[Lord Triesman]

My Lords, we are taking part in this debate this evening because the House of Commons did not accept Amendment 15. The noble Lord, Lord Empey, made the point that the other place may have been indifferent because relatively few Members were there. I ask him not to make that judgment in general about things that happen at the other end. When most debates are conducted, you see the camera sweep around without many people being there. It is entirely possible that you could regard this as indifference to almost everything, or you could say that it is the nature of the life of this place. I certainly do not think that the House could accept what he commended to us—that we should send no messages that are in any sense disagreeable to people in the other place. Such a supine response from this House to matters on which we feel amendments are needed would surely be exactly the opposite of the role that this House should play, and ample argument for its having no role at all.

What is fundamental at this stage is that this legislation takes us, in several constitutional areas, into waters that are—I candidly submit to the House—unknown. We are being invited to change from a system that is fundamentally parliamentary in the main thrust of its work to a system that is plebiscitary. It will on one reading lead to a significant number of plebiscites—that is entirely possible—or on another to very few, as the noble Lord, Lord Lamont, suggested. That is also entirely possible; I do not know which it will be. What I do know is that it will be fundamentally different from the way in which we have conducted parliamentary debate on key issues over many generations.

There is a fundamental constitutional change in that Parliament will offer the public votes—either frequently or infrequently, depending on which reading one takes—on whether to overturn the decisions that it has taken as a result of major debates and major opportunities to review changes in Europe in both Houses. Inevitably, there will be a fundamental change in how we conduct our relationship with Europe as a whole. That is what is intended. Some people advocate that, while others of us believe that this is a disproportionate way of trying to do that. None the less, these are all fundamental changes.

I suggest to the House that, in sailing into these waters, the reality is that we do not know how it will play out. Least of all do we know in what circumstances it will play out. We do not know which things will provide the most significant changes, although we have reason to believe that the present difficulties in European nation state economies give us ample evidence that they will be the tapestry against which all of this will play out. We do not know how the constitutional matters will play out. I doubt anybody here has the temerity to suggest that they know in which circumstances all these matters will play out either.

I entirely understand the argument that there are some things, even against the background that I have described, that are so important to the people of the United Kingdom that they will insist on having a say on them. It is also true that the Government of the day will be bound, in those circumstances, to try to make judgments of their own about what the interests of the country are at any time. There is no point to a parliamentary democracy where the Government of the day say, on some quite critical issues, “We will not be finally responsible for taking judgments about what the interests of our country are”. That would be a peculiar country to live in and one in which the notion of fundamental democracy had been considerably eroded. Variations by subsequent Governments in subsequent Parliaments, of the kind that are suggested in this amendment, seem just to be prudent as a means of allowing the possibility of dealing with circumstances as they arise in a way that is more flexible—I am not afraid of that word—in all of those circumstances.

I am wholly in agreement with the noble Baroness, Lady Williams, when she says that a significant number of these issues will be judged in general elections. When people look at the questions that must be resolved, they will look at them in general elections. For those who say “Trust in the people”, my trust is at its highest point when they decide which Government they want in a general election. That is a fundamental form of trust. I accept that there will be circumstances in which a referendum would be absolutely right. I hope I have been clear from this side of the House that these include such matters as defence policy, Schengen and the euro. There is a raft of policies where I can see that that would be entirely true. However, I do not believe that, in comparison with a general election and the decisions that are taken, the people of the country—in whom, inevitably, trust must be placed in all such circumstances—believe it is somehow better to replicate “The X Factor” than to deal with real politics in real circumstances. “The X Factor” may be fine as a form of entertainment, but it is hardly a way of dealing with the national interest when it must be dealt with under stress or duress.

I also agreed with the noble Baroness, Lady Williams, when she responded to the noble Lord, Lord Lamont. This is an important point; I hope the House will not mind my repeating it. The noble Lord, Lord Lamont, is right when he says that the case for clauses that limit the life of legislation is far clearer in dealing with emergency legislation. You do not know whether you will need it in the future, and you are not 100 per cent sure that it will meet the intentions for which it was introduced. However, there is also a completely reasonable case for saying that, when we are taking such significant steps into the dark in constitutional terms, there needs to be a way to say, “How do we make sure that we’ve got the balance right in the interests of the country? How can we make sure that we are taking the right decisions in the right way against the right environmental circumstances?”. That is, after all, the function of government.

I cannot stand at this Dispatch Box and claim that I know with certainty where those new balances will lie. It is precisely my point that none of us knows where they will lie. However, this generation of politicians or the next will have to make those judgments. They will come around and they will have to be made. Politicians should be in a position to make them with the greatest confidence and authority that they can. It is critical to our country that they are successful in doing so.

I hope we will accept Amendment 15B. It is a much more limited suggestion than Amendment 15. It seems, in every respect, to grant flexibility without overriding the key provisions of the Bill in any significant way. It commends itself strongly to me on that basis. Most of all, it commends itself on the basis that, if it is true that the cause for dissatisfaction is the belief that Parliament has let too many of its roles and responsibilities go toward Europe and for those reasons fundamental constitutional change is needed—because that is the argument for this kind of fundamental constitutional change—let us be certain as time goes by that we have got it right, that the balances are right and that whatever the causes were we have not backed ourselves into a cul-de-sac or something worse.

[Lord Wallace of Saltaire]

My Lords, I thank the noble Lord—

[Lord Stoddart of Swindon]

My Lords—

[Lord Wallace of Saltaire]

We are now winding up.

[Lord Stoddart of Swindon]

If anyone wishes to challenge me and move that I no longer be heard, let them do so, but I wish to ask a question. If I had been allowed to do so without the very rude interruption of the Whip on the Bench, noble Lords would have saved themselves a lot of time. What I wanted to ask—and I am going to ask it now—is whether, when the amendment states that a future Government “may”, it means “shall”. We often have debates about what “may” and “shall” should mean, and I think it is important that before noble Lords vote, if there is going to be a vote, they know whether they are voting for something that commits the next Government to something or is permissive for the next Government. Now I will sit down and be quiet.

Could I just add that the Whip on the Bench did not intervene on the noble Lord, Lord Maclennan, who widened the debate on this very narrow amendment to the extent of whether we should be in or out? I think I have been extremely badly treated, and I hope that the Whip will apologise.

[Lord Shutt of Greetland]

My Lords, I would not want to upset the noble Lord. I was taking the view of the House. In this business of a self-regulating House, occasionally we have to use judgment, and it was my judgment that we were ready to conclude this debate, and I believe that is the case.

[Lord Stoddart of Swindon]

I might say to the noble Lord that he is not entitled to make that judgment.

[Lord Wallace of Saltaire]

My Lords, I start by thanking the noble Lord, Lord Goodhart, for the careful and conciliatory way in which he moved the amendment, now some time ago. I do not regard this as a wrecking amendment, but I do see it as an amendment that will confuse and complicate the principles behind this Bill, weaken their role and not help to reassure our sceptical citizens.

In answer to the insistent question of the noble Lord, Lord Stoddart, my reading of this amendment, which I am sure is that of the noble Lord, Lord Goodhart, is that it is intended to be a permissive power and not an obligatory power for the Secretary of State, which is why it says “may” and not “shall”.

In its favour, the amendment rejects the passive approach proposed by Amendment 15; that is to say, the amendment in lieu requires the Government to take a positive decision to seek to suspend some of the provisions of the Bill. It is permissive in that respect. A Government taking such a decision would undoubtedly be mindful of the possible reaction of the British people to such a move. It would therefore be open to a greater degree of transparency in terms of the motivation of the Government of the day that the original sunset clause would not, to the same degree. As the noble Lord, Lord Lamont, noted, it allows for the suspension of the requirement for an Act of Parliament before any of the decisions in Clause 6 are taken, depending on the terms in the order. So it risks diluting the increased engagement for Parliament, which is an important part of this Bill. The level to which Parliament and the people would be involved in these important decisions would then be in the hands of Ministers, a principle that runs against the spirit of the Bill.

A number of noble Lords suggested that the Bill was intended only to apply to future Governments. I remind noble Lords that in the next Session of this House, we will consider legislation under the terms of this Bill on Croatian accession and the European stability mechanism, and that the conditions of the Bill will apply to those.

20:15

Let me offer some reassurance to the noble Lord, Lord Goodhart, and his supporters on the context in which the Bill will operate once translated into law under future Governments and Parliaments. I remind your Lordships of the principles of parliamentary sovereignty—that no Parliament can bind its successors. If for any reason a future Parliament wished to suspend, disapply or repeal any of the provisions of this Bill, it could do so, unconstrained by the wishes of this Parliament. Most likely, it would decide to do so at a time when it was considering an Act of Parliament required under the terms of this Bill. At such a time, the particulars of that draft decision would be clear and so might the question of whether to disapply this Bill, or not. If I may say so, that is a Clause 18 statement, which is declaratory and in no sense changes the basis of how we operate. No future Government would venture to do so unless they had made real progress in regaining the trust of the British public in the processes of European co-operation that have been so seriously weakened in the past 15 to 20 years.

I set out earlier the Government’s support for the previous Government’s new system of post-legislative scrutiny, which would allow a detailed, proper and timely examination of this legislation after five years. I repeat again the commitment of my friend, the Minister for Europe in the other place, that this Government are committed under the now accepted procedures of post-legislative scrutiny to the principle that a future Government must publish a full report on how this Bill has been used within five years of this legislation becoming law. I hope that that offers reassurances to the noble Lord, Lord Goodhart, and his supporters. We believe that this is the most effective approach, rather than installing an instrument that would not re-engage the people of this country and would remove the transparency and certainty that this Government have adopted from the start as watchwords for the Bill.

Having given those assurances, I hope that the noble Lord will feel able to withdraw his amendment.

[Lord Goodhart]

My Lords, let me start by making a small and not very serious comment. From time to time my noble friend Lord Lamont and others have referred to me as being learned. Unfortunately, I am not. If I was in the House of Commons, I would be, but in your Lordships' House I am not.

On more serious matters, I start by thanking my noble friends Lord Howell and Lord Wallace of Saltaire for their balanced and serious response to the debates that have taken place on this matter. So far as an incoming Government are concerned after the next general election, they will, whether or not Amendment 15B is present, have the power to repeal all or part of the EU Act, as it will then be, without a referendum. If Amendment 15B is adopted, the incoming Government can use that amendment as an alternative to repeal and replacement of the complete Act. Members of Parliament will be involved either way, either in supporting a new Bill or in approving the making of the order that will need to be passed under this Bill. This is not a big step.

The noble Lord, Lord Armstrong of Ilminster, made a very good point on this and explained very clearly the distinction. Amendment 15B just gives a simple way of dealing with an action that could be done without it. I see no reason why Amendment 15B should not be included in the Bill. While I seriously considered the question of whether we would pass this amendment without going to a vote, I think this falls short of that. It is therefore my intention to ask for the decision of your Lordships’ House.

20:21

Division 2

Ayes: 148

---

Labour: 114
Crossbench: 18
Liberal Democrat: 9
Democratic Unionist Party: 2
Conservative: 1

Noes: 215

---

Conservative: 134
Liberal Democrat: 54
Crossbench: 15
Ulster Unionist Party: 2
Bishops: 1
UK Independence Party: 1
Independent: 1

Motion D agreed.

Police Reform and Social Responsibility Bill

Wednesday 13th July 2011 Lords Chamber

Report (4th Day)

20:33

Motion

Moved by

[Baroness Browning]

That the Bill be now further considered on Report.

[Lord Hunt of Kings Heath]

My Lords, it would be helpful to the House if the noble Baroness could give some indication of the Government’s intention. My reckoning is that there are 18 groups left to be debated on Report. Can she tell me at what point she intends that the House be adjourned tonight?

[The Minister of State, Home Office (Baroness Browning)]

My Lords, I come to the Floor of the House tonight ready to complete Report. I do that particularly for this reason: there have been times during the course of this Bill when we have made quite rapid progress, with the co-operation of both sides of the House, but noble Lords will know that I have amended this Bill so that Members of your Lordships’ House could apply for and carry out the function of a full-time police and crime commissioner. During that debate, I was persuaded by Members of this House that your Lordships could not only carry out their functions in this House but hold down a very demanding full-time job as PCC as well. Everybody will know that people who engage at that level are people who do not clock-watch but get the job done. They stay until the job is finished; that is what I intend to do.

[Lord Hunt of Kings Heath]

My Lords, I found that the most remarkable response. The Opposition have been very co-operative on this Bill. We agreed to do Committee in six days and Report in four days. We did not agree that the clock should start at 8.35 of the evening. On average, we have taken about half an hour per group. At that rate, we would be meeting for another nine hours. I regard that as wholly unacceptable, as I am sure that other noble Lords will do. I suggest to the noble Baroness that a discussion should take place in the usual channels on an appropriate way forward. It is not acceptable to say to the House that, at this time of the night, we should start a full day’s debate on Report.

[Viscount Astor]

My Lords, before my noble friend replies, will she bear in mind that some of us who have amendments tabled for debate this evening intend to keep our speeches very short so that we will be able to conclude this stage of the Bill?

[Baroness Tonge]

My Lords, I, too, add my protest to what is going on here this evening. We have just spent several hours on what many people in this House considered to be a completely useless and totally unnecessary Bill. We are now faced with a Bill in which, from my point of view, the most important issue that we are yet to discuss—universal jurisdiction—is right at the end. That will probably come at something like 2 am or 3 am. That is an insult to all the people who have died by the actions of international war criminals and I am absolutely furious that the House has organised the business in this way.

[Lord Carlile of Berriew]

Well, my Lords, I am certainly not furious and I always listen to my noble friend the Minister with great care but I say to her that there must be a preparedness on the Government's part to stop at a reasonable hour. This House has a justified reputation for considering legislation with great care and revising it on the basis of knowledge and a solid evidence base. I fear that once we pass a very late hour today, that power of this House will be lost.

[Baroness Anelay of St Johns]

My Lords, it may be helpful if I remind the House that we are moving into Report and that nothing may be resolved at this moment. The noble Lord, Lord Hunt of Kings Heath, pointed out that the Opposition have always said that they would complete Report today. That is part of a firm agreement. It was also for the convenience of the Opposition Front Bench that the exchange on Lords consideration of amendments on the EU Bill was moved to today.

[Lord Foulkes of Cumnock]

My Lords—

[Baroness Anelay of St Johns]

My Lords, I am not going to take an intervention from anybody in the Chamber at the moment. I would be grateful if the noble Lord could sit down because it is a courtesy of this House that two persons do not stand at the same time. I would have thought that somebody who was a Member of another place and of another Chamber might be aware of that. I am pointing out—

[Lord Foulkes of Cumnock]

You stood up.

[Baroness Anelay of St Johns]

I did not stand up while anybody else was talking. I do not carry out that kind of breach of conventions. I am trying to assist the House by pointing out that the Government have tried to schedule business for the benefit of the Opposition and for the whole House. Clearly, we are always prepared to have discussions. We have done little else over the past week. Those discussions can continue but it is a matter of this House that they do not continue on the Floor. Of course, the Motion may be now put that we do resume Report stage. I invite noble Lords to agree to that, pending that there can then be discussions elsewhere. I understand, by the look of it, that the noble Lord the Opposition Chief Whip will be happy to reply to that.

[Lord Bassam of Brighton]

My Lords, I take that, in the end, as a very positive intervention by the noble Baroness the Government Chief Whip. I am more than happy to have some discussion off the Floor of the Chamber because it is pushing it to start a day as late as this. The noble Baroness is quite right to remind the House that we certainly signed up to try and complete Report in four days. I do not think that anybody expected the European considerations to go on for as long as they did. We tried to play our part in keeping them as short as we possibly could, but it is unreasonable to expect the House to debate serious issues such as universal jurisdiction, or issues that are a passionate concern for some, such as licensing, and the rest. As it happens, we have tabled only four or five groups of amendments for this stage of the Bill. We have tried to keep our opposition to the Bill within reasonable bounds and have done so. We have kept to our side of the bargain but, particularly on a Wednesday—and with a Thursday sitting starting at 11 am and a Friday sitting at 10 am—it is not right to keep the House beyond reasonable hours.

[Lord Foulkes of Cumnock]

My Lords, I will make two points. First, it is my understanding, in terms of procedure, that in this House as well as in other Houses if a noble Member wants to intervene in the speech of another noble Member it is appropriate to stand, and for the other Member to consider whether or not to give way. I am sure even the Government Chief Whip would recognise that that is the normal procedure.

[Baroness Anelay of St Johns]

My Lords, we have just carried out that procedure correctly, because I did not stand until the noble Lord gave way. I made it clear I was not taking interventions. The noble Lord and I have exchanged views on that on other occasions. This is continuing a debate which leads nowhere. Discussions outside can be fruitful; discussions by the noble Lord continuing now may jeopardise the success of those discussions. Perhaps we might continue in the proper manner in a House that takes its procedure seriously.

[Lord Foulkes of Cumnock]

I was making two points. I made my first point and I gave way to the noble Baroness, as appropriate. The second point I want to make—it is open to Members to make these points and I say that to my own Front Bench as well as to other Front Benches—is that when my noble friend the Chief Whip agreed that we should discuss this today it was on the basis that the day started at 3.35 pm. That is, if I can work it out right, five hours ago. Therefore we are not getting a full day in any sense. That is why I agree with noble Members opposite, particularly from the Liberal Democrats, who have indicated their deep concern. If concern is expressed by the Labour Opposition and by the Liberal Democrats I would have thought the Government should take account of that.

[Baroness Paisley of St George's]

My Lords, I would like to add my voice and appeal that we leave this matter until tomorrow. At this late hour, no one can make guarantees. Although speeches may be short, when there are interventions it lengthens the thing out far too long. Those of us who are past our green years need to get home and get a bit of rest before coming back early in the morning. We will then have a fresher mind and more patience than we have at this hour of the night.

[Baroness Hamwee]

My Lords, it has been said that the Liberal Democrats are protesting. I hope it is understood that it is not all of those on the Liberal Democrat Benches. I urge the speedy start and, I hope, conclusion of talks outside the Chamber to see how we go.

Motion agreed.

Clause 63 : Appointment of acting commissioner

Amendment 229A

Moved by

[Lord Hunt of Kings Heath]

229A: Clause 63, leave out Clause 63 and insert the following new Clause—
“Acting police and crime commissioner
(1) Where a police and crime commissioner is unable to perform his or her functions under this Part, the relevant police and crime panel must appoint an acting police and crime commissioner from amongst its members.
(2) A person who is appointed to the role of acting police and crime commissioner under subsection (1) has the same powers and is subject to the same requirements as a police and crime commissioner, in accordance with this Act and any other enactment.
(3) In appointing an acting police and crime commissioner under subsection (1), the relevant police and crime panel must stipulate the maximum length of time that the person may hold that position.
(4) A person ceases to hold the position of acting police and crime commissioner—
(a) in the event that the police and crime commissioner is able to resume his or her functions under this Act;(b) at the end of the maximum term stipulated by the police and crime panel; or(c) as otherwise stipulated in this Act or any other enactment.”

[Lord Hunt of Kings Heath]

My Lords, we come to a very important matter: the appointment of acting police and crime commissioners. Whatever our views on this Bill, one thing is clear: the police and crime commissioners will have considerable power and authority over policing matters in their local police force area.

A second point is that, with the numbers so elected, inevitably there may be circumstances in which a police and crime commissioner may become incapacitated: they may be suspended, they may decide to leave office voluntarily, or they may die in office. Quite rightly, the Bill contains provisions for the appointment of an acting commissioner. That is well and good. However, the problem with Clause 63(2) is that an acting commissioner, appointed by the police and crime panel, can only be appointed if they are a member of the police and crime commissioner’s staff at the time of the appointment. The acting commissioner can exercise all the functions of a police and crime commissioner, other than issuing or varying a police and crime plan under Section 6, so the acting police and crime commissioner can dismiss the chief constable. They can set the precept and, as my noble friend Lord Beecham has reminded us, that can be around 9 to 11 per cent, depending on whether you are in England or Wales, of the total council tax bill.

20:45

I find it quite extraordinary that a staff member—perhaps the chief executive, the director of finance, or the chief of staff—can be appointed to exercise the powers of an elected police and crime commissioner. The reason that this Bill is so constructed is because the Government have decided on this extraordinary concept of a corporate sole. Instead of having sensible governance where it would be clear who might be well placed to be appointed as an acting police and crime commissioner, the Government are flailing around and have come up with this wonderful idea that if the police and crime commissioner in some way cannot carry out their office, a member of their staff should be appointed to do so. That is unacceptable, and I can think of circumstances in which in fact it would be wholly unacceptable. What if the commissioner was suspended because they were charged with an offence which carried a potential imprisonment of more than two years? What if the commissioner were charged with corruption? What if that corruption involved members of their staff? We must remember that there are no corporate governance safeguards over who the police and crime commissioner appoints as a member of their staff: it is wide open for corruption in any case, and corruption will occur. It is inevitable in these arrangements that there will be corruption. We have a situation where an acting police and crime commissioner has to be appointed from among the staff, in the circumstances I have described, of a police and crime commissioner charged with corruption. In those circumstances what possible confidence could the public have in those arrangements and in the acting police and crime commissioner?

My amendment seeks to put in place a much more sensible arrangement which allows the police and crime panel to appoint a panel member to serve as the acting police and crime commissioner. That would provide a much greater safeguard in terms of public confidence. We had a good debate on this in Committee. I very much hope that the noble Baroness will be sympathetic to my amendment.

[Lord Condon]

My Lords, I support the amendment. We discussed this in Committee. I can think of virtually no circumstance where every member of the police and crime panel would be ineligible to stand as acting commissioner, if the circumstances warranted it. I can think of many sets of circumstances where it would be inappropriate for every single member of the elected commissioner’s staff not to be eligible to be the acting commissioner for the very circumstances set out by the noble Lord, Lord Hunt. If the elected police and crime commissioner has been suspended or has had to stand down temporarily because of allegations of corruption or other behavioural issues, it would not be in the public interest for a member of what is going to be, in the Minister’s own words, a very small number of support staff to stand as the acting commissioner if there were a serious allegation of corruption against the commissioner. The Minister has been reasonable and conciliatory on many of these issues. This is a blindingly obvious case where it would be far more appropriate for a suitable member of the police and crime panel to act in circumstances where the elected police commissioner is no longer eligible to be commissioner for a period.

[Lord Shipley]

My Lords, I add my voice to those who support this amendment because I see it as a critical part of the necessary checks and balances on the powers of the commissioner. I say that for two reasons. First, the acting commissioner could be in post for eight to nine months—that is, for up to six months as permitted in the Bill, together with the period during which a replacement is elected. Frankly, to have an unelected acting commissioner for that length of time is unacceptable as they will set the budget and the precept. Although there is a veto on the precept, nevertheless they will be responsible for making the proposal on the precept and they will make a decision about the budget. All those functions should be undertaken by people who have been elected as opposed to people who have not been elected.

Secondly, the commissioner will have appointed the staff member to their substantial post. The only power that the panel will have is over which staff member is nominated, although they have to bear in mind the advice given to them by the commissioner who is incapacitated. I regard this as an absolutely fundamental issue. The panel must be able to appoint from among its own members. Between now and the next stages of the Bill, I very much hope that my noble friend the Minister will make clear to colleagues in the other place that this matter is of fundamental concern to a large number of Members of your Lordships' House.

[Lord Beecham]

My Lords, I correct my noble friend Lord Hunt, who has underestimated the extent of the precept as a percentage of the local council tax, which would fall potentially to the acting commissioner to levy. It is 11 per cent in England and 15.5 per cent in Wales—even greater than my noble friend indicated. I respectfully suggest that there is potentially an equal underestimate in relation to the period of vacancy. As I read the Bill, the six-month period after which a vacancy would have to be declared and a new election take place, which would add to the length of time in any event, arises in connection with incapacity. However, there are other grounds on which a vacancy might arise. In particular, there is the possibility of a police and crime commissioner being suspended. That could conceivably take an even longer period to resolve, so there is the potential for this position to be filled by a second-hand appointee, as it were, for a long period. Of course, the whole rationale of the proposal for police commissioners—flawed in the opinion of many, certainly on this side of the House—is that it is necessary to have somebody who is elected and who has a direct mandate for the purposes of exercising the functions that the Bill confers on the holder of the office.

There will be no such democratic element in the event that the procedure currently in the Bill is enacted. There would be no democratic mandate of any kind—direct or indirect. It is intolerable that that should be the case when within the police and crime panel, there will be people with a mandate—not the complete mandate—that will be claimed for the police and crime commissioner in as much as he or she will be elected for the whole force area. There will at least be some democratic mandate for those elected local councillors who will constitute the majority of members of the police and crime panel. In those circumstances I can see no argument for allowing—indeed requiring—the appointment of somebody who has no mandate when there are those available within the structure who would have at least some mandate.

I hope that the Government will think again. The noble Baroness was unlike her old self, if I may say so, at the beginning of this debate when her rather surprisingly peremptory statements were made. I would like to see her return to what your Lordships might think is the much more acceptable Browning version.

[Lord Dear]

My Lords, we are working against the clock this evening so I will not repeat any of the powerful arguments adduced so far. I say simply that I agree with them and support the amendment.

[Lord Harris of Haringey]

This is an extremely important issue and not one that we should rush through simply because we are fed up. I am sure that I have just as much stamina as the noble Baroness, Lady Browning, although I am not required to take the whole Bill through this House. We have to consider and debate these issues seriously because, after all, that is the function of this House.

This is a problem of the Government’s own making in that, having decided that police and crime commissioners—and for that matter MOPC in London, although the issues are slightly different—have substantial, individually held powers, the question then comes: what do you do in circumstances when there is a vacancy or someone needs to act while that happens? The Government cannot have it both ways. They cannot say, “Actually, it will be okay and we can have a member of the staff of the police and crime commissioner’s office to act in this function”, and at the same time say, “The police and crime commissioners are so important and will be so busy that they have to work full time on these functions”. What are they working full time on?

They are presumably setting direction—I am sure they are not intervening in operational matters because the Government are clear that they will not be doing that. They will be providing guidance on what is regarded as important to the electorate of that policing area. Among their duties will be setting the level of local taxation. There is no other area of British public life when something that impacts on taxation is not decided by people who are elected. If the noble Baroness wants to interrupt and tell me of one that I have not thought of, I would be delighted to receive it. There is no such area.

This is one of the most important decisions and it is one that will matter very much to the public in the area concerned. The task of being an elected politician is to balance what you believe are the important aspirations that you might have for the public service concerned and how much money can readily be raised in taxation. That is an issue that this and previous Governments have struggled with, and those who are actively engaged in local government struggle with it each year. You have to make a judgment and you can make it only if you see both sides of the equation. You see the side of expenditure and you see the side of what it will mean in taxation. Only somebody who is elected will have that perspective of what the public want in terms of services delivered and what they are prepared to buy through taxation. The public are not always single-minded on these matters. We are all aware of those stresses and strains, which is all the more reason why it must be an elected politician who makes that judgment. Only an elected politician with the authority of being elected can strike that balance knowing what the electorate of the area feel.

21:00

The difficulty with this is that an official will see this only from the point of view of the need to spend. Through this practice, the Government are creating a ratchet effect that will push up public spending. Officials will see this as entirely about the need to spend, about how many police officers and services they should have and about how much information technology should be purchased. Those will be the sorts of issues that they will see, because they will not be individually accountable to the public for the level of local taxation. That is why this is such a dangerous precedent. By saying that people who do not have elected authority will make those judgments, the Government are creating an effect by which only one side of the equation will be seen by those who make the judgment. That is why the principle of having an elected person carrying out this role is so important. Their idea is that a chief executive or a chief finance officer—before one even considers whether it might be a chief of staff of a police and crime commissioner—will make those judgements. Those individuals by their nature will probably never face an electorate, will never stand as a candidate and will never have to balance the need to spend against the need to tax.

I turn to the other powers of the police and crime commissioner. I am not talking about day-to-day matters, where the understanding of how an electorate feel about an issue would be so valuable, but about the extreme, major powers that one hopes will not be exercised very often—for example, the power to dismiss or appoint a chief constable. Again, one would expect the person concerned to be accountable in quite a different way. It will be at the moments of highest drama—for example, when you are in the business of dismissing a chief constable—when it will be most important for the decision to be made by somebody who is seen to be personally answerable to the electorate. Personal answerability to the electorate is the cornerstone of what the Bill is supposed to be about: putting in place people who are personally accountable to the entire electorate of a policing area and giving them the responsibility. That is what is missing.

I will try to predict the Minister’s arguments so that I will not have the temerity to interrupt her later when she is in her new, forceful mode. No doubt she will argue that to have a member of the police and crime panel suddenly taking on this responsibility will blur the distinction between the police and crime commissioner and the police and crime panel. That may blur a distinction, but is that a more important concern than the concern of blurring the line between elected accountability and someone who is appointed to carry out the functions of raising and setting local taxation? I have to say that it is not a significant argument.

The matter could be addressed in other ways. The Government could have come forward with proposals that would have enabled a deputy to the directly elected police and crime commissioner to be elected to fulfil those functions. They chose not to do it. They could have created a clear, corporate structure around the directly elected individual that could have taken on this responsibility—but they chose not to do it. Therefore, the problem is of their making. They must not tell the House that it is not an important problem, because it is vital. I wait to see what will be the reaction in local communities the first time an acting police and crime commissioner—an appointed official—sets the precept and the level of local taxation, because there should be no taxation without representation.

[Lord Foulkes of Cumnock]

Before my noble friend sits down, perhaps I might ask whether he has given any thought to the situation of a police officer in the force who has received money from tabloid journalists. Would that be the responsibility of the chief constable or of the commissioner? If it would be the responsibility of the commissioner, how would someone standing in from the panel be able to deal with that?

[Lord Harris of Haringey]

If such a circumstance were to exist—and clearly this is all very much in our minds at the present time—I suspect that the first people who will recognise the level of public concern that is going to exist are going to be individuals with a personal, direct elected mandate in an area. Under the Government’s model, where you have an elected police and crime commissioner who has not been disqualified, removed from office or incapacitated, then maybe that works and that individual would express concerns.

There is a fascinating article by Daniel Hannan, who I know is of enormous influence within the Conservative Party. He complains, incidentally, that the Government have got the nomenclature wrong; they should not be called police and crime commissioners but should be called sheriffs. He points out that there is a historic British tradition of the local sheriff, who is not the guy with the five or six-pointed star badge, but an ancient, semi-feudal office. The City of London has sheriffs, so it must be all right, because it is the same medieval construct that brought us corporations themselves.

In those circumstances, the directly elected individual —and this again is the point of the Government’s proposals—is going to be the person who will sense that this is something of deep concern to the public and that something should happen. In the circumstances of my noble friend Lord Hunt’s amendment, the point about it is that, rather than have some official who has never had to face an electorate making those judgments and decisions, it would at least be someone with a personal electoral mandate, albeit not for the whole force area, but for a part of it, who would be reflecting the public concern about such matters and taking the appropriate action in those circumstances.

Again, I think the Government’s arguments are flawed and they really need to address what is actually a very serious problem, which would manifest itself most seriously in circumstances where something is seriously going wrong.

[Lord Soley]

My Lords, I will intervene briefly, mainly to support what my noble friend has said.

On the previous intervention, the issue of offers of payment by the media to certain police officers is very much on our minds at the moment. In my view, this issue is not—and never has been—a really central and massive problem, but it has always been there. When I introduced my Freedom and Responsibility of the Press Bill 20-odd years ago, we looked at it then but it has never been dealt with so I would say it should be considered, particularly in the structure that Government are setting up. There will be a temptation for certain police officers to be paid by journalists. Usually, the journalist makes the approach, in my experience, when any offer is made. Journalists will talk about what they do on a confidential basis—“Do not quote me” and so on—but such things are said. Usually, the sums of money are not huge—perhaps £20 for a bit of information and a bit more for another piece of information.

We all have two or three concerns about this Bill, but on this particular aspect there is a danger of what you do if there is an issue of corruption, however small it is overall, and how it is dealt with. I hope that the Minister will deal with that point, which my noble friend made very adequately from the Front Bench, but has just been added to by my noble friend Lord Harris of Haringey.

[Baroness Henig]

Before the Minister replies, I have a brief query that I would like to ask. Between discussing this in Committee and on Report, the Minister has laid an amendment about deputies, so I think we have covered this. I am therefore assuming that it is possible that the noble Baroness might be saying—and it was certainly what I understood when it was first mentioned—that a deputy might assume this role of acting commissioner.

When I looked at this in some depth, it seemed to me that this deputy post was not one that would be exempted from Section 2 of the Local Government and Housing Act. In other words, it was going to be a post where the incumbent would have to be politically restricted. If that was in fact the case and it was a politically restricted post, it would seem to me to be completely wrong for that person who is politically restricted to be able to act up. Am I correct in my understanding of that? When that deputy post was created, I had rather assumed that one of the reasons for it was that the deputy could act up, but having looked at it, I do not see how that could work. I would be most grateful if the noble Baroness would perhaps say something about that as well in her reply.

[Lord Dear]

If an allegation of corruption or any other crime is made against someone, whoever the officer might be, the procedure is well laid down, and I do not think that the Bill would change it in any way. The complaint is made to the chief officer of police, who has to record the complaint, which is automatically notified to the Independent Police Complaints Commission. The IPCC can take over the inquiry or supervise it, and discipline remains a matter for the chief officer. If, in the doomsday scenario, the chief officer does not deal with the complaint properly, then it is for the police authority or, in this instance, the police and crime commissioner, to step in. I do not think the procedure would be changed by the Bill.

[Lord Foulkes of Cumnock]

I fully understand. That was an exceptionally clear explanation. However, if the commissioner was not there, and someone was standing in for the commissioner, would it be appropriate for the member of the panel who is standing in for the commissioner to deal with the issue in the same way as the commissioner would?

[Lord Dear]

In the theoretical instance cited by the noble Lord, I do not think it would work that way because the chief officer of police would have to demonstrate that he had not dealt with the complaint properly, and that would take some time. We are talking about six months plus two months before an election, so by the time that doomsday scenario occurred, you would have an elected individual in place as the PCC, as I understand it.

[Baroness Browning]

My Lords, this amendment seeks to secure the appointment of an acting PCC from the panel rather than from the PCC's staff. I recognise the points made today and previously in Committee and remain open to suggestions about how we might secure a process of appointment for an acting PCC which provides the safeguards and political neutrality that I have described in previous debates and which would also provide assurance to a PCC that any appointment of a temporary stand-in would not endanger the continued delivery of the police and crime plan and objectives. I say to the noble Baroness, Lady Henig, that I am very happy to consider taking forward the situation with the deputy, but the deputy is not politically restricted.

[Baroness Henig]

When I looked at the government amendments, there was no suggestion that there was an exemption under Section 2 of the Local Government and Housing Act. If there is no such exemption, is that post not restricted? It does not say that.

[Baroness Browning]

My Lords, I will come back on that specific point, but I want to make the point that although I am not able to accept this amendment, I am aware of the genuine concern that has been raised, not just on Report but at previous stages, and I am still trying to find alternative solutions. I shall explain to the House why I do not feel able to accept this proposal. I understand what is trying to be achieved, but plucking the acting PCC from an inherently political body is not the right solution to this issue. Some may say that I am overplaying the need for political neutrality in these situations, but I point to the debates in the other place and in this House regarding the potential risks of politicisation. If, as was put forward, politicisation is such a key risk, then I would argue that establishing an acting commissioner from within a very political pool of people with a different mandate is the worst of all worlds and likely to lead to conflict. The PCC's staff are politically neutral and, in the absence of any other person with a political mandate spanning the force area, we envisage that the PCC's chief executive would be best placed to continue to secure the maintenance of an effective police force with the close support and involvement of the police and crime panel for the interim period.

As I have indicated, I cannot agree to the amendment for the reasons I have given, but I keep an open mind on coming back to the House on this issue with other suggestions, and I will consider the proposal put forward by the noble Baroness, Lady Henig. On this basis, I ask the noble Lord to withdraw his amendment.

21:15

[Baroness Hamwee]

My Lords, one of the Minister’s concerns is plucking—I think that that was her term—someone from a political pool. I understand the argument that the commissioner may be independent, but nevertheless he or she will be a politician because it is a political job. I speak very much off the top of my head, but is it worth Members of the House considering whether an appointment from the panel, but made by the commissioner, could be a candidate for this? Heads are being shaken across there and there are nods around here as to this being a possible way forward. Given the stage of the Bill, I felt that it was worth throwing this suggestion into the mix.

[Baroness Browning]

I am grateful to my noble friend, as always, for making a constructive suggestion to resolve this issue. I will, of course, with other points that have been raised, take that into consideration.

[Lord Boswell of Aynho]

My Lords, would an alternative approach, which would be not unfamiliar from board practice, be to establish through the panel a nominations committee, which could provide an element of filter, rather than a direct overtly or covertly political appointment?

[Baroness Browning]

I am grateful to my noble friend. I have explained to the House that I am very happy to take this forward without closing the door on it tonight, even though I cannot accept the amendment. I will return to the House at a later stage with this.

[Lord Hunt of Kings Heath]

My Lords, I think the point has been well put that the powers of the acting PCC could be considerable. I apologise to my noble friend Lord Beecham for underestimating the size of the precept. It seems to me that it has grown between Committee and Report stages. But it involves the precept, the budget, the appointment of the chief constable and the dismissal of the chief constable. I am still concerned that the problem here is the construct of the Bill. As my noble friend Lord Harris has said, once you decide to place on a political individual so much power and responsibility, you clearly have a big problem in deciding what to do if that person is no longer able to carry out the job.

It seems to me that this is a very important issue, which has been debated in the other place as well. The Government clearly still do not have a clue about how to deal with it. The noble Baroness said that she is concerned about appointing the acting PCC from the police and crime panel, which is an inherently political body. But what is the PCC but politicisation? In terms of the idea that the staff will be wonderfully neutral, what on earth will the staff be doing? I am horrified at the thought that the PCC will employ an army of people. It will have one point, which will be to ensure the re-election of the police and crime commissioner. What else are they there for but to support that person?

The noble Baroness has said that she will take this away. I am very grateful to her, but can she confirm that that means that she accepts that I can bring an amendment back at Third Reading or that she will? It cannot be dealt with in the Commons on ping-pong. It is impossible to deal with this issue in that way. It has to be dealt with by this House. We have only a few days left. Will the noble Baroness confirm that she is saying that this is a matter that requires further clarification and can be brought back at Third Reading?

[Baroness Browning]

My Lords, I will commit to bringing it back at Third Reading for clarification.

[Lord Hunt of Kings Heath]

My Lords, in that case I am extremely grateful and I beg leave to withdraw my amendment.

Amendment 229A withdrawn.

Clause 66 : Police and crime commissioner not to serve for more than two terms

Amendment 230

Moved by

[Baroness Browning]

230: Clause 66, leave out Clause 66

Amendment 230 agreed.

Clause 67 : Disqualification from election or holding office as police and crime commissioner: police grounds

Amendment 231 not moved.

Clause 69 : Disqualification of person holding office as police and crime commissioner

Amendments 232 and 232A not moved.

Amendment 233 not moved.

Clause 74 : Police and crime commissioners not to sit or vote in House of Lords

Amendment 234

Moved by

[Baroness Browning]

234: Clause 74, leave out Clause 74

Amendment 234 agreed.

Amendment 234A not moved.

Clause 80 : The strategic policing requirement

Amendment 235

Moved by

[Baroness Henig]

235: Clause 80, page 49, line 28, at end insert—
“( ) A report is to be prepared annually by Her Majesty’s Inspectorate of Constabulary assessing the extent to which the strategic policing requirement has been met in each police area and nationally.
( ) A copy of this report must be laid before Parliament.”

[Baroness Henig]

My Lords, I would like to speak to Amendments 235, 235A and 239. Can I just point out that I think there is a misprint on the groupings list? To clarify, this group should comprise Amendments 235, 235A and 239.

Amendment 235 is a response to the widespread fears of your Lordships expressed in earlier debates. It is also a response to the concerns of policing professionals, charities and businesses that an elected commissioner might, for obvious reasons, want to focus on a local mandate, and the fact that a lot of important, strategic national issues are somewhat hidden from public view. There is concern that all this might lead to cross-border national or strategic policing issues being relatively neglected under the Government’s proposed new model.

I dare say that we are as one in recognising and wishing to respond in the most effective manner possible to the ever present and, indeed, growing threats to many of the so-called protective services or national and strategic threats, which cross police force borders or require specialist attention. The sort of crimes I refer to are such things as cyber crime, threats from terrorism, extremism, serious and organised crime, people trafficking and the more sporadic—potentially devastating—impact of civil contingencies. There is a whole number of national incidents.

I do not wish to raise an apocalyptic spectre of crimes and emergencies, but it is exactly because these important issues are not the currency of local, political, policing debate that I am concerned that it might not be at the forefront of a commissioner’s attention. There is a risk that commissioners may—for understandable reasons—not give full weight to national issues. Anybody who has attended local, public policing meetings or read the results of public consultations about policing priorities will understand that local people are interested in local issues. One example is born out of recent excellent research undertaken by my home police authority, Lancashire, which revealed that most people’s priorities for an elected Lancashire commissioner were going to be tackling quite low-level crime. Anti-social behaviour and environmental issues such as littering and abandoned cars were the sort of issues that people wanted commissioners to address.

I have experience of consulting local people on their policing priorities. I used to always give people a list of issues on which we wanted to consult them. It would always include anti-terrorism and other matters but the public always said “We do not want anti-terrorist activity to be at the top of the list because that is a national responsibility”. When asked how this should be paid for they said that the Government should pay. They always put national issues at the bottom of the list. As I went round the county, this happened every time.

Even at a time in Lancashire when the Irish situation was quite difficult—and Heysham was quite an important area for activity which meant that the Lancashire police were engaged in considerable anti-terrorist activity —none the less people in Lancashire did not want their precept to be spent on that kind of activity. That worried me then and it worries me even more now because I think that tendency will be even more emphasised in this new regime.

What I propose as part of the solution to act as a substantial check and balance on commissioners and force actions is to have an annual report to Parliament by Her Majesty’s Inspectorate of Constabulary. I am sure I do not need to remind the House that it has a long and distinguished track record in both identifying and trying to identify the best ways of closing the gap in protective services. It is perfectly placed to provide an annual guarantee that the gap does not widen in the years to come, or, if it does widen, that it can alert Parliament that this is happening.

My idea of an annual report to Parliament draws on similar recent and successful provisions that have enabled Parliament’s concerns about the potential impact of certain Acts to be monitored and to some degree ameliorated. I am thinking here of the distinguished work of the noble Lord, Lord Carlile, as the independent reviewer of counterterrorism legislation. That is just one example of a way in which activity could be monitored, so that Parliament could get some sense of how things are working out. I understand that the amendment would impose a new duty on the inspectorate’s already, no doubt, hard pressed resources, but the national issues are so important and the consequences of us failing to ensure adequate provision for national strategic policing requirements are so great that an annual assessment would be one way of monitoring the situation and measuring what forces are doing. It would help commissioners in their debate with local people to emphasise how important these national strategic requirements are. It is in that spirit that I beg to move the amendment.

[Baroness Hamwee]

I have Amendment 235A in this group. The noble Baroness spoke about matters which I raised at the previous stage, mentioning a number of criminal areas which do not respect boundaries. This amendment is arguably a little more local, but I have been asked to raise it by Justice, whose concern is exactly what I articulated at the previous stage and what the noble Baroness, Lady Henig, has articulated now. It is concerned that the creation of commissioners could result in what it calls—it is rather a good phrase—a competitive “race to the bottom” on populist law and order policies. It mentions what one might call the “invisible” crimes, such as domestic violence and crimes against vulnerable individuals and members of minority groups, which do not dominate public concern in the way that street crime and anti-social behaviour do.

The Bill deals with offences such as terrorism and organised crime, which require a national policing response. Child neglect has been acknowledged in another part of the Bill, but aggravated crimes against minorities and a whole list of other matters, with which I shall not detain the House, may not be a priority—indeed, it is extremely unlikely—for any commissioner seeking an electoral mandate.

I made the point to Justice that we had already covered some of this ground, to which it responded rather honestly that it was important to make the rhetorical point. Although it is almost half-past nine on perhaps our last day on Report, I shall make the point not very rhetorically, not very eloquently, but in quite a heartfelt manner.

[Lord Harris of Haringey]

My Lords, I do not think that some of the issues that we are discussing in these amendments are rhetorical matters. My Amendment 239 approaches the issues which my noble friend Lady Henig raised in Amendment 235 from a slightly different perspective.

Some 35 hours ago, I sat listening to the Home Secretary introduce the new CONTEST strategy for the United Kingdom. That document, which pulls together the efforts being made to counter terrorism, is fundamental to the issues that we are talking about here in relation to the national strategic policing requirement.

Of course, this document describes the importance of having a national network feeding in to the counterterrorist effort—if we do not have such a national network, we cannot deliver effective counterterrorist policing. That is why it is so important that the Government have put the strategic policing requirement into the Bill. What makes it difficult for us in your Lordships’ House to consider these matters tonight is that, of course, no one, as far as I am aware—certainly none of your Lordships—has yet seen the strategic policing requirement, or a draft thereof.

21:30

When I have listened to senior police officers, they say that there are a number of building blocks for anyone to understand how this legislation will work. One of those building blocks is the memorandum that we have seen—the Minister has promised us that she will come back to us on whether that will be part of the Bill. Another key building block is what is going to be contained in the strategic policing requirement. Until we see that, we cannot see what will be the balance of responsibilities for chief officers of police. I hope that we will at least see a draft of the strategic policing requirement before the Bill goes to Third Reading. I had understood that something was due to be published some while back for consultation. As far as I am aware, unless it has appeared very recently, nothing has yet been published.

[Lord Foulkes of Cumnock]

My noble friend served with me on the Joint Committee on the national security strategy. Will he help the House and contemplate how the strategic policing requirement might fit in to the national security strategy? Would it be part of it or relate to it in any way? It has certainly not been mentioned, as I am sure my noble friend would agree, in our meetings on the national security Joint Committee.

[Lord Harris of Haringey]

The Government are trying to square the circle of putting a very high priority on national security—the national security strategy, the creation of the National Security Council—and their policies on police and crime commissioners. Clearly, the potential danger with police and crime commissioners elected with a local mandate to articulate the concerns of local people is that some national priorities will not be given the same priority at local level. Now, I am sure that no sensible police and crime commissioner would say, “I am not interested in anything being done on counterterrorism”, just as no sensible police and crime commissioner would say that they did not want to see anything done on serious crime. However, when there are 41 directly elected individuals, some of whom will fight very fiercely contested local elections, or be facing fiercely contested re-election, the question of whether the same priority is given to national security matters as is given to other matters becomes a real issue.

Because of our particularly slow progress as a House on other matters before we arrived at the Bill tonight—we are making rapid progress compared to the progress earlier—I had the opportunity of listening to a presentation downstairs from Professor Dave Sloggett, a nationally known expert on counterterrorism issues. In a rather chilling 15-minute tour d’horizon, he simply spelt out the sorts of threats that we face, which are contained in the CONTEST strategy, and the context in which that is taking place at the moment. Yes, Osama bin Laden has been killed, but that does not mean that al-Qaeda goes away. We are actually seeing a fragmentation and each of the different affiliates going their own way, each presenting slightly different threats.

We have Gaddafi in Libya, who has made an explicit threat of suicide bombers in European cities; and there is the changing situation in Northern Ireland, where we have just seen two nights of sustained rioting and serious disorder. Again, the fact that that has not impinged significantly on the rest of the country makes it all the more likely that there will be an aspiration for it do so. We have the challenges of the Olympics. In moving her amendment, my noble friend Lady Henig referred to issues around cybercrime, and it is interesting that the CONTEST strategy for the first time refers to the cyberterrorist threat. These are issues in which local police forces have got to play their part; they have got to raise their game. They are not necessarily issues which will immediately emerge as the priority for the elected police and crime commissioner in every part of the country, yet every part of the country is potentially affected.

Let us consider the way in which Roshonara Choudhry self-radicalised herself, dropped out of her university course and, having listened to speeches and read material on the internet, decided that an appropriate thing for her to do to take forward the cause would be to assassinate a British Member of Parliament. She then researched Members of Parliament on TheyWorkForYou.com and purchased two kitchen knives. Fortunately for Stephen Timms, a Member of Parliament in the other place, she decided on the day that it was easier to conceal in her clothing the shorter of the knives. That is an example of the kind of threat we face.

Not so long ago an individual in the south-west of the country seriously injured himself in an attempt to blow up a restaurant in which families with young children were having meals. Again, he was an individual who, as far as we know, was not significantly connected to any of the networks.

It will be the responsibility of local policing, local special branches and local intelligence to pick up on these issues. If you get to a stage where this is seen as not the responsibility of a local police force, your ability to combat these threats will be severely weakened. That is why the strategic policing requirement is so important.

It is also important in the context of serious and organised crime because we all know that if you do not maintain consistent and strong pressure on the issues around serious and organised crime, gradually the quality of community life in all kinds of areas will begin to deteriorate—and yet this will not be an immediate priority for many police and crime commissioners.

The Government have, properly, written into the Bill a strategic policing requirement. However, they have not specified how it will be enforced and how they will make sure that it is met in every force area. My noble friend Lady Henig has tabled an amendment which would require Her Majesty’s Inspectorate to produce a report on an annual basis and lay it before Parliament to assess how the strategic policing requirement is working. My amendment has a different focus; it seeks to consider what happens in each individual force area. It does not specify that the report should be laid before Parliament because sometimes the content of that report in relation to the strength, willingness and effectiveness of local forces in combating terrorism and serious and organised crime would best not be publicly shared.

I know that the Home Office does not want to be top-down on all kinds of issues, but on these issues it needs to be top-down, which is why it has postulated a strategic policing requirement. This will give the Home Secretary a snapshot for each police force area and a national overview, if you take the position that has been put forward by my noble friend Lady Henig, of what is going on and where there may be weaknesses. Whether that will result in a formal intervention by the Home Secretary or a less formal intervention with the chief officer of police and the elected politician who leads those areas applying pressure, I do not think really matters. What is important is that the Home Secretary has that information and has it as a tool. Further, it is important that the locally elected individual—the police and crime commissioner or the MOPC in London—is aware of where they stand in terms of meeting the strategic policing requirement. They may well have a rose-tinted view of what the level of problem is or what needs to be done. This gives them that information and the opportunity to decide. I find it extraordinary that there is nothing in this Bill about monitoring how the strategic policing requirement is to be met, how it is to be achieved and what is to be done about it.

These amendments are put forward in a genuine attempt not just to assist the Government to achieve their objectives, which as you know are constantly at the forefront of our thoughts on this side of the House, but because it is critically and crucially important for the national security of this country and indeed for our ability to deal with serious and organised crime.

[Lord Carlile of Berriew]

My Lords, I hope I will be forgiven for making a short intervention in support of the amendment of the noble Baroness, Lady Henig, and indeed in support of the amendment of the noble Lord, Lord Harris of Haringey, as to its principle. This Bill is to a great extent about the accountability of the police. The whole purpose of the Government’s policy, which I applaud, is to make the police more accountable to the public. The noble Baroness, Lady Henig, is attempting to do precisely that—to give visible evidence of that accountability to enable the public to judge from a document how accountable the police are in terms of the strategic policing requirement.

The noble Baroness referred to the work of the independent reviewer of terrorism legislation, which I used to be. The independent reviewer is required to produce at least two reports every year which enable Members of both Houses, who use the reports extensively, and others to judge the performance of the authorities in relation to counterterrorism law. We have an independent reviewer of the relatively new Northern Ireland provisions for what is now public order law in Northern Ireland. This role has been carried out since it was introduced by Mr Robert Whalley. He has been very successful in ensuring that those important parts of the law he reviews in Northern Ireland, which can prove, as we have seen in the past couple of days, very controversial in the context of everyday life, are accounted for in the legislative assembly of Northern Ireland and in this Parliament.

Following the legislation in relation to the UN money-laundering provisions for named terrorist suspects, we introduced recently an independent review which is going to be carried out, as I understand it, by David Anderson QC, who succeeded me as independent reviewer of terrorism legislation. There again, we will have a report which will deal with issues relating to a part of the strategic policing requirement. Those who carry out such roles from time to time have been asked ad hoc to carry out reports which call to account those who have been involved in aspects of counterterrorism and related policing.

Her Majesty’s Inspectorate of Constabulary has a distinguished and respected record of impartiality. It has been able to secure changes in policing practice around the country by the kindly method of report, constructive criticism and engaging, sometimes, the support of those in both Houses of Parliament. It seems to me that there is nothing to be lost and potentially much to be gained from the transparency of a report by Her Majesty’s Inspectorate of Constabulary, particularly given the importance of the strategic policing requirement, which has been amply described during this short debate, particularly by the noble Lord, Lord Harris.

I take issue with the noble Lord on only one detail. He suggested that it might be difficult to write a report that would be published that engaged with matters of national security that are best left unsaid. I can tell the noble Lord that there are ways of doing this; it can be done. With the co-operation, which is always available, of the security services in particular, there are ways of writing reports that do not damage national security but deal fully with all the principles that need to be discussed.

I therefore believe that this is a constructive proposal and I hope to hear that the Minister will also allow this matter further consideration with a view to something being brought forward at Third Reading.

21:45

[Lord Dear]

My Lords, I wonder if I might put a different gloss on the matters that we are debating in this group of amendments. We know that there is a strong likelihood that there will be a national crime agency some time in the next calendar year. We already have a discussion document about that. It refers to tasking, which I am confidently assured means direction from the centre. That means that there is bound to be tension between local and national issues, which is a good thing. It is democracy in action. It is inevitable that the inspectorate will become involved, at the behest of local or national figures. That is what it is there for and that is my experience, having served in it for more than five years, albeit some time ago.

I am concerned that the Bill is in grave danger of becoming overprescriptive. We are covering detail, which is good as far as it goes. However, to put it in the Bill rather than take it as a matter of good sense or encompass it in regulation stretches too far the issue of what should be in the Bill.

I shall refer to Amendment 235A. Having followed an all-encompassing definition of national crime, we are then invited to put in something about children, vulnerable adults, members of minority groups and so on. I do not at all underestimate the threat to those groups; terrible things are done to and with them. However, if we are to pick out those groups, why do we not put in something about drugs, counterterrorism, and the theft of high-value motor vehicles and plant, all of which happen on a European—if not a more international—scale? Why do we not put in something about cybercrime or identity theft? I shall sit down soon because I want to brief, but my point is that we should not drop into the trap of being overprescriptive. Valid though all the comments from speakers so far have been, it is asking the Bill to accept too much.

[Lord Hunt of Kings Heath]

My Lords, this has been a very interesting debate. I understand what the noble Lord, Lord Dear, is saying about the risks of overprescription. However, we are talking about strategic policing requirements. This is a matter of national importance. My noble friends have argued very well for their respective amendments.

No election will be won by a police and crime commissioner on issues to do with national policing. They will be won on local manifestos. Almost every candidate will promise more police on the beat. The question will be an auction over just how many police will be on the beat at any one time. That is fair enough and clearly responds to a general view held by many members of the public, who like the police to be visible. I do not argue with that. However, it will have some consequences. It will put the squeeze on the specialist units that the police forces have developed. It will also put the squeeze on each force’s responsibility to the national policing requirement. In some way or other, without being wholly prescriptive, we need to find a way in which to reassure Parliament that the national strategic policing requirement will be carried out as effectively as possible. It is not just terrorism; it is also about serious organised crime. My noble friends Lord Harris and Lord Foulkes were absolutely right to develop the argument about the threats that we face. We are in no position today to be complacent about those threats.

In their approach to the Bill the Government have really rather pooh-poohed the current tripartite relationship. They have criticised police authorities for a lack of visibility—although I have yet to hear any conclusive evidence put forward on why they ought to be visible. Furthermore, they believe that the tripartite arrangement is at fault because Home Secretaries have indulged in too much target-making. There will be a debate about targets and their place but there should be no doubt that in the end the Home Secretary is accountable to Parliament and ought to be accountable to Parliament for national policing strategy and the effectiveness of police forces in making a contribution to that strategy.

I agree with the noble Lord, Lord Dear, about the implications of the national crime agency. I also agree with him that some tension will be constructive—but tension could also be destructive. In the Bill we see that the requirement in relation to the strategic policing requirement is placed on chief officers of police. In exercising the functions, they must have regard to the strategic policing requirement. In other words, they can ignore it, because “have regard to” is a very weak use of parliamentary language. They have to have regard to it, alongside other matters that are placed in the Bill.

We then look to page 2 of the Bill and see that in Clause 1(4) that the,

“police and crime commissioner must … hold the chief constable to account for”,

a series of actions, but also,

“the exercise of the duty under section 37A(2) of the Police Act 1996 (duty to have regard to strategic policing requirement)”.

All we have in statute is a requirement on the police and crime commissioner to hold the chief constable to account. Then we find that the actual requirement is simply to have regard to. What if the police and commissioner does not effectively hold the chief constable to account? What if the chief constable has regard to but does not take the necessary action? Where are the safeguards and sanctions? There are none. That is really our concern.

The amendments seem to be helpful and constructive. My noble friend Lady Henig asks for a report to be prepared assessing the extent to which the strategic policing requirement has been met in each police area. That does not seem overprescriptive; it is simply giving an assurance to Parliament that there will be a process by which Her Majesty's Inspectorate of Constabulary has a means of looking at each police force area and reporting on how they are doing in their contribution to the strategic policing requirement.

My noble friend Lord Harris has another constructive amendment around the inspection programme. In our first debate the Minister was very helpful, although I did not really follow her arguments. She was very constructive in being willing to engage in the area of the acting police and crime commissioner. Nothing is more important than the national strategic policing requirement. I hope that the noble Lord, who, I suspect, is going to respond to the amendment, will be able to be as constructive as his noble friend.

[Lord Foulkes of Cumnock]

My Lords, before the Minister replies to the debate, he will recall that nearly an hour and a half ago the government Chief Whip indicated that she would return speedily with a new timetable for this Bill to propose to the House. We are now approaching the normal time of rising of this House. I hope that the Minister will give an indication as to when the government Chief Whip will do us the courtesy of returning to indicate what the new timetable for this Bill will be.

[Lord Wallace of Saltaire]

As always, the noble Lord, Lord Foulkes, is immensely helpful in his contribution to debates. I well recall his many constructive contributions to the Parliamentary Voting System and Constituencies Bill in an earlier period.

It is part of the intention of this Bill to build in some constructive tensions between the local and the national—

[Lord Foulkes of Cumnock]

I am grateful to the Minister, but this is a serious point. A number of Members of this House have an interest in subsequent amendments and are genuinely concerned that there should be a proper debate on the Bill because some very serious and important amendments are coming up. They do not know what is going to happen. They do not know whether these amendments are going to be considered at three o’clock, four o’clock or five o’clock in the morning or, more sensibly, on another day when they can be properly considered by this House. It is the normal role of this House to give proper consideration to these amendments, and I hope that someone will find out when the noble Baroness, Lady Anelay, will return, as she promised an hour and a half ago, and tell the House what the programme is going to be. If not, people are hanging on here without any knowledge about what is going to happen.

[Lord Wallace of Saltaire]

My Lords, I will do my best to get that information to the House as soon as possible.

As I said, it is part of the intention of this Bill to build in some constructive tensions between the local and the national. We all understand that policing is a constant dialogue between local, regional and national, although I suggest to the noble Baroness, Lady Henig, that things have changed a great deal in the last 20 or 30 years. Certainly when I was a candidate in Manchester many years ago, there was a small Special Branch that dealt with the IRA, but there were not the cross-cutting collaborative units that we now see across the north of England—drugs units, organised crime units and counterterrorism units, which are now part of the network in which our police forces co-operate with each other. My perspective on policing is a West Yorkshire one, but the Yorkshire Post, the Bradford Telegraph & Argus and the local radio stations do not simply focus on local crime, partly because local and national issues, such as parades by the English Defence League and drugs heists in which the drugs have just been imported from some other country, are very much part of the local scene. Therefore I think that the widespread fears suggested by the noble Baroness may be exaggerated.

Clause 80 sets out the strategic policing requirement, which is an update of the Police Act 1996, as noble Lords have said. That strategic policing requirement is now being extensively consulted on by the Secretary of State, ACPO, the Association of Police Authorities, the Metropolitan Police service and others. Clearly that is going to be a major part—

[Lord Harris of Haringey]

My Lords, while I am fascinated to hear that this consultation is taking place, on the last occasion on which I saw representatives of the Association of Chief Police Officers—I believe it was last week—they had not yet seen a draft of this document, so I am slightly bemused by that. Parliament has to see it. We cannot understand what the balance is going to be between the local and the national unless we can see that document, even in draft state, and understand it.

22:00

[Lord Wallace of Saltaire]

My Lords, Clause 80 sets out in some detail the principles of the strategic policing requirement. It is there in the Bill. There is a question of how much detail we want to write in to the Bill, but Clause 80 sets out the fundamentals of that requirement. Clause 96 adds to that the backstop power for the Secretary of State to intervene if, in her opinion, local police forces are not paying sufficient attention to the strategic policing requirement.

I add that “have regard to” is not, as has been suggested, a weak statement. It is a commonly used phrase for a strong and appropriate duty, which places an obligation on the chief officer and the PCC to comply with the strategic policing requirement. In policing terms, the duty to have regard has previously applied, for example, to codes of practice that have been used to implement a national intelligence model across all 43 police forces in England and Wales, to codify the use of police firearms and to ensure compliance with the IPCC statutory guidance on handling police complaints, which suggests that this is a widely used and strong duty.

[Lord Harris of Haringey]

The Minister says that this is intended to be a strong requirement. Clause 80, which he referred to, says,

“must, from time to time, issue a document”.

What I am trying to clarify is: how can we see what the impact of that strong requirement is unless we know what the Government's intentions are for the document's contents? That is not asking to have the wording of the strategic policing requirement written into the Bill. The Bill already says that there will be such a document, but none of us have seen one. The Minister has talked about consultations but as far as I am aware—I wait to be corrected—last week no full-touch document had been circulated for comments, despite the expectations set out in here.

[Lord Wallace of Saltaire]

I promise to get back to the noble Lord as soon as possible with an update of where we now are on that. I stress that it is normal practice to pass legislation without all the details of the regulations being tied up before that Act is passed, because ongoing negotiations about how the regulations will be carried through are often under way. I am assured that negotiations and consultations on the strategic policing requirement are well under way.

[Lord Harris of Haringey]

The Minister talks about regulations but I did not actually think that the strategic policing requirement was going to be put in regulations. I thought it was simply going to be a document. There have been plenty of occasions when the document has been so pivotal that Parliament has been advised of what the content of regulations will be. Draft regulations have been circulated so that people can understand what their scope is. As I understand it, this is regarded as one of the central planks in determining what is local and what is national. I believe that Parliament should therefore see this document in draft form before we can move forward.

[Lord Wallace of Saltaire]

I promise to get back to the noble Lord with a situation report, certainly by the time we come to Third Reading. On Clause 96, I am also informed that the backstop power available to the Secretary of State to intervene where forces are not having sufficient regard to national priorities has never been used. It is there as a backstop power but police forces, chief constables and police authorities have necessarily recognised that there is a thread between neighbourhood policing and local, regional and national priorities. The neighbourhood police groups which I have been out with in Leeds and Bradford are also looking at potentially vulnerable individuals, at people who may be radicalised and at areas where drugs are being dealt or supplied. That feeds into a national intelligence chain and is part of what we all understand as policing.

The noble Baroness, Lady Hamwee, stressed the importance of criminal activities which, in some cases, do not respect boundaries. She also talked about the invisible crimes of domestic violence, vulnerable adults, child neglect and aggravated crimes against minorities. Again, I have sat in on MAPPA groups—multi-agency areas—where police are working with other local social services and non-governmental organisations, precisely to look at those invisible crimes. Part of the way in which attention is drawn to these crimes is by local voluntary organisations working with police and other agencies at the local level. In the nature of these cases, much domestic violence and child neglect is essentially local. Those elements which are not local—child trafficking, sexual abuse, online sexual exploitation—are dealt with now increasingly by the Child Exploitation and Online Protection Centre and other forms of collaboration between local police forces and national agencies, which indeed will feed into the national crime agency when that is developed. Again, in this case there is not a tension but a thread between local violence, local disorder, local abuse, and those more limited elements in which children are trafficked or abused and the internet is used for these purposes. I can assure the noble Baroness that this does not need to be written again into the Bill. Having said that, I hope that I have given sufficient assurance to those who tabled these amendments to enable them not to press them.

[Baroness Hamwee]

My Lords, before the noble Lord sits down and with the leave of the House, I say that the thrust of the arguments is one which I made at the last stage. The amendments themselves are about mechanisms. Can my noble friend on the Front Bench help the House as to whether it is necessary to spell out these mechanisms? It seems that noble Lords opposite are seeking mechanisms to assist the Secretary of State—but does the Secretary of State actually need to have the legislative powers? As I read these, I would have thought that it was possible for her to take steps, certainly in one of these amendments, and to have considerable influence to ensure that the inspectorate undertakes the others. To that extent, these amendments are not necessary. However, the noble Lord has addressed the arguments rather than the amendments, and if I may say so, so have the noble Lords pressing the amendments. I hope my noble friend may be able to help the House on that.

[Lord Wallace of Saltaire]

There was a tension also about how much detail one writes into the Bill. We spent some time on these amendments with people wanting reassurance that there should be much more detail in the Bill than is required of them.

[Lord Hunt of Kings Heath]

With the greatest respect to noble Lords, a requirement for HMIC to publish a report annually is not a target; it is simply information to Parliament. Surely the Minister is prepared to consider that. As I have said, it is a very short time until Third Reading, but will he take this back without commitment and consider whether some reassurance might be made to Parliament on this?

[Lord Wallace of Saltaire]

In the next group of amendments we will move on to HMIC, and it is part of the requirement for HMIC that it will publish reports for the public, so HMIC will be publishing regular reports. The question of whether it should have to publish reports on a regular basis for Parliament is an additional thing of which I am not persuaded. I will certainly consult further but I am not currently persuaded that that is a necessary addition. Many years ago I took part in a debate which required the Government to report to Parliament twice a year on developments in the European Union so that there could be a six-monthly debate. Those reports have continued to be published and somewhere in my attic I have a number of them. I am a little doubtful about additional reports.

[Lord Hunt of Kings Heath]

Surely the Minister will know from the debate that we have had on the European Bill that many noble Lords in this House talk of little else.

[Lord Harris of Haringey]

Before Minister comes back on this, I say that this is not just about whether or not this is a document published for Parliament; it is about ensuring that there is a focus on the strategic policing requirement. That is something which the Government have not yet conceded. While I am on my feet, and to prevent me getting up again, can he tell us what he actually means by a situation report? Does that mean that when we get to Third Reading which, as far as I am aware, is still only a few days away, we will have in front of us some idea as to what this document will look like?

[Lord Wallace of Saltaire]

My Lords, I had not promised to give the detail of the strategic policing requirement, which is currently under negotiation. I am happy to give noble Lords a situation report on where negotiations stand regarding the definition of the strategic policing requirement. That is the most that I can do.

[Baroness Henig]

My Lords, I have listened closely to everything that has been said. I thank noble Lords who have participated in this debate. I have listened very carefully to the Minister. I agree that under the present system there is a recognised way of reconciling local and national police authorities; I do not think that is in doubt. The problem is that we are embarking on a completely new structure of police governance. Everything that we are used to is being changed, and not incrementally but quite radically. I think that we all accept that. My amendment seeks to reassure the public, given that we are faced with this completely new and untried system. We owe it to the public to reassure them that under the new system cross-border crime, serious criminal issues and national crime will be tackled by local forces.

We have heard a lot about commissioners. I am sure that good commissioners will act as the Minister thinks they will; it is the not-so-good commissioners and the areas where local people may be let down which are the problem. I do not see that this measure is such a lot to ask for when reports are prepared in many areas of our national life. Why cannot they be prepared by the inspectorate in this area? I do not understand why this is such a novel suggestion. I keep being pushed to press amendments to a Division, but I really would like to test the opinion of the House on this matter.

22:11

Division 3

Ayes: 54

---

Labour: 46
Crossbench: 4
Democratic Unionist Party: 2
Liberal Democrat: 2

Noes: 151

---

Conservative: 94
Liberal Democrat: 43
Crossbench: 8
Ulster Unionist Party: 2

22:23

[The Deputy Speaker (Lord Geddes)]

Amendment 235A is in the name of Baroness Henig.

Amendment 235A not moved.

[Baroness Anelay of St Johns]

My Lords, I nearly transgressed by being on my feet when the Deputy Speaker was on his feet, which would have been an heinous crime at any time, but particularly at 10.23 pm.

As promised earlier this evening, there have been discussions in the usual channels, which reached mutual agreement with regard to the progress of business. Clearly it is important that the House is able to scrutinise legislation effectively: we all want to work towards that end. On the other hand, the House also tries to work in the most efficient manner to deliver government business in a better state than it receives it. Even the late Division that we have just had clearly was intended to produce that end—and although the noble Baroness, Lady Henig, may not have got the result she wanted, I know that she was testing the opinion of the House from the right motives.

It has been agreed through the usual channels that we will conclude business tonight at approximately 11 am.

[Noble Lords]

Oh!

[Baroness Anelay of St Johns]

Well, there you are—that is what I really want to do. One minute’s break between today and tomorrow would give us enough time for Prayers. My Lords, in fact it will be 11 pm. We would like to make further progress on an amendment or two and conclude as close to 11 pm as possible. The agreement is that tomorrow morning after Questions we will start on the Report stage of the police Bill. We will continue until we have concluded Report and then go back to consideration of the published business, which is the Committee stage of the Localism Bill.

This has an implication for consideration of matters at Third Reading. The Minister has already made it clear that she is prepared to consider matters at Third Reading and I know that the noble Lord, Lord Hunt of Kings Heath, has already signalled that he has at least one serious matter that he wishes to consider. It is therefore important that we maintain our normal tradition of having the usual intervals between stages. That can be achieved by the Government rearranging their business next week so that the Third Reading of this Bill will be taken on Wednesday instead of Tuesday—so we have the usual intervals—then after the Third Reading of this Bill on Wednesday we would continue in Committee on the Localism Bill.

I know that the usual channels will continue to have discussions tomorrow afternoon, when we are able to see the progress of business, to work for the best of the House.

[Lord Bassam of Brighton]

Briefly, I thank the noble Baroness, Lady Anelay, for the way that she has approached this and for her gracious manner in putting something before the House which I am sure the whole House will feel able to support.

[The Deputy Speaker]

My Lords, I am much relieved that I was interrupted, because Amendment 235A is in the name of Baroness Hamwee.

Amendment 236 is grouped with Amendment 235, on which we have just had a Division.

[Lord Hunt of Kings Heath]

With the greatest respect, it was pointed out earlier that there is a misprint in the grouping list. My noble friend made it clear that there is a group starting Amendments 236, 237 and 238.

[The Deputy Speaker]

I beg your Lordships’ pardon. That information had not reached me.

Clause 85 : Functions of HMIC

Amendment 236

Moved by

[Baroness Henig]

236: Clause 85, page 52, line 28, at end insert—
“(2A) The inspectors of constabulary may carry out an inspection of, and report to the Secretary of State on, the performance by a police and crime commissioner or a police and crime panel of its functions or of any particular function or functions.”

[Baroness Henig]

I rise to speak to three amendments, which, taken together, seek to preserve the checks and balances and independent assessment of performance within the current system that the Government have drawn on so heavily in creating their case for change; namely, the excellent work of Her Majesty’s Inspectorate of Constabulary.

Right at the beginning of our work on the Bill, the Government told us that HMIC unearthed the evidence for the failings of the present system, which necessitated the abolition of police authorities as quickly as possible. Indeed, in the absence of an analysis of the results of the Home Office’s public consultation on their reform proposals and the rather limited utility of a Cabinet Office report now five or six years old, the findings of HMIC’s inspections of 22 police authorities could be charitably described as the nearest thing the Government have for an evidence base on which they can build the case for change—at least as far as the suggested evidence for the weaknesses of the old system goes.

When it comes to this clause of the Bill, it very much surprised me—and may well surprise many of your Lordships—that, far from the excellent work of Her Majesty’s inspectorate being valued and taken forward into the new era of elected accountability, it has been relegated to the sidelines. In fact, the inspectorate is no longer going to be called upon to inspect the whole range of policing accountability but is going to be focused on forces.

I find this a little odd. We are told that commissioners and their panels are the necessary drivers of change, the fulcrums on which the hopes of reforms are going to be founded. They are going to have the role in driving efficiency at local level, not the Home Office from the centre any more. Yet these crucial new transformative individuals and bodies are not to be subject to the same level of inspection in the public interest as police authorities. I find this quite strange. Surely it cannot be right to limit the scope of inspectors who could provide valuable, impartial and expert information to the public on complex areas of policing and police finance, including the efficiency of those overseeing that finance. Budgets are going to be tight in the next few years and the new system is going to be very costly. I find it hard to believe in the new system, which many of us think will increase costs. These costs will add up and may very well eat into the policing budget. It is therefore not unreasonable that inspections should be able to oversee how those costs are running and whether things are operating reasonably.

22:30

I know, because we have already had this argument, that the Government will be quick to remind me that the ballot box will be the judge of how commissioners oversee and apportion their part of the policing grant and the precept. However, four years is a long time in politics and a lot of money could have been spent before the public place a cross and deliver a verdict. Who in the mean time, except HMIC, will inform the public about how effectively or otherwise commissioners have spent their money? I am reluctant to raise once again the spectre of corporations sole and, still less, the frankly frightening sight of not one but two corporations sole with two auditable bodies and consequentially opaque arrangements for overseeing public spending in policing. The only reason I want to mention them is that I think that because of that situation there will be a need for more, not less, accountability. Inspection of the new regime, when compared to what we have presently, will be more important because of the arrangements that are being set up. I believe that these areas need to be opened up to the public. Expertise should not be excluded. It is essential for public trust and confidence in the police that every penny of the policing pound is considered by those charged with inspecting and fostering improvement. That is why I think that the Government should reinsert full rights of inspection for HMIC and the ability of the local policing body and panel to call in inspectors on a regular basis.

I shall briefly say something about the idea that the panel should have to pay the cost of the inspections. That is a tremendous disincentive to having inspections. I could not help thinking that if existing police authorities had to pay for inspections they would have definitely seized on that as a reason not to be inspected, particularly when it is those inspections that justify the present abolition of police authorities. Slightly at a tangent, I mention that in those last inspections of police authorities—there have been 22 in the past few months—not one authority failed an Audit Commission or HMIC inspection and more than 97 per cent of HMIC’s 110 individual assessment scores for police authorities’ performance were excellent, good or adequate, which I think is very reasonable. It is certainly a record of achievement that compares favourably with local government. In fact, police authorities consistently and significantly outperform local authorities in Audit Commission inspections of their use of resources. I do not feel that inspections should have to be paid for in this way by those who are being inspected—hence my Amendment 238 to delete this provision.

In relation to police authorities’ financial management, the inspectorate’s report stated:

“Over the last ten years, forces and authorities have delivered efficiency improvements to meet Government targets. Between 2004 and 2008, forces and authorities declared just over £1.5 billion of efficiency improvements against a target of just over £1 billion”.

I am sure we would want such efficiency improvements to continue into the new regime. Indeed, the public would expect commissioners on £120,000 or more a year to be driving and delivering even greater efficiencies than their predecessor police authorities. I therefore feel that the public would want the inspectorate to give them the relevant comparative information rather than leave it to the media to report, or not, as they see fit. For all these reasons, it seems to me that there should be regular inspections of commissioners and of panels. I see no reason why there should not be. I beg to move.

[Baroness Harris of Richmond]

My Lords, I have put my name to Amendments 236, 237 and 238 which were tabled by the noble Baroness, Lady Henig. We are being asked to support nothing less than a revolution in policing governance in the absence of any evidence base on which the benefits of such drastic changes are set and in the absence of any public clamour for costly reform—indeed, the opposite. We are being told that these changes will not be piloted or introduced in stages since reform is urgent and cannot possibly wait. I beg to differ on all those counts.

However, if we are to press ahead with such an untried system, I am absolutely determined that we should do our duty to ensure that all means possible are employed to insert safeguards into the Bill. HMIC inspections seem to me to be a bedrock of any such safeguards against potential pitfalls and I share the high regard in which Sir Denis O’Connor, Her Majesty’s Chief Inspector of Constabulary, is held, together with his extremely able team.

In short, HMIC inspections are at times a difficult and challenging process for those undergoing them and they have repeatedly yielded the improvement across policing, which is at the heart of HMIC’s mission. So I am left, frankly, bemused when the Government propose not to expand but to constrict the use of this valuable tool for improvement. It makes no sense at all effectively to exclude these completely new systems of oversight from an inspection regime when that regime has already helped the current system to improve.

Next, I shall draw out the intention of Amendment 238, which removes the proposed new obligation on the local policing body to reimburse HMIC for the costs of its inspection. We have heard what the noble Baroness, Lady Henig, thinks of that. We have sought to replace this with a statement that the panel may request that HMIC conducts an inspection if its concerns warrant such an intervention. I am unaware of any other inspection regime in which those delivering a public service, or who invite in or are made the subject of an inspection in the interests of public trust and confidence in their work, are expected directly to cover the costs of their inspection. Surely, in some cases an inspection will be called amidst quite serious financial issues or challenges. This idea that those opening themselves up to scrutiny in the public interest must pay for the cost of such transparency seems decidedly odd to me, even bearing in mind the parlous state of Home Office finances at the present time.

It also seems to me to be the most bizarre disincentive to those on the panel or on the commissioner’s staff who are considering whistleblowing on what might be significant issues of public interest or concern. A whistleblower or concerned panel member or local policing body member would have to gain pre-emptive approval for the costs of a possible investigation from someone who might be implicated in the very dubious activity that necessitates the inspection.

This parcelling of costs on to the petitioner for an inspection feels wrong to me on a very instinctive, but also on a very practical, level. Surely the Home Office should be seeing fit that the costs of HMIC’s absolutely essential work should be met by a Home Office grant. It would seem to be neglect approaching a dereliction of the Government’s duty to do otherwise. We have proposed that this apparently ill suited new subsection (2BB) should be replaced by a positive power for the panel that it should be able at any time to request that HMIC carry out an inspection of the PCC.

No one will be more aware of the PCC’s action or inaction in some areas than the police and crime panel since it is designed as her or his safeguard and strict check and balance. However, while the panel will be equipped to oversee the PCC in most areas, it may feel that there are issues on which it lacks a professional operational judgment on a matter of controversy. In such circumstances, it may not be appropriate to pull the chief constable into what could amount to a difference of opinion with the PCC. Who then can the panel turn to for that necessary professional advice and impartial opinion?

Finally, there should be a direct and clear ability, and a responsibility on the panel, to be able to involve HMIC appropriately. HMIC could, of course, take a view that it was being asked to get involved in a petty or irrelevant matter and could decline the invitation. However, we anticipate that this referral mechanism to HMIC will provide a helpful bridge to practical improvement for many forces facing difficulty in the future, as it so often has in the past.

[Lord Hunt of Kings Heath]

My Lords, all I would like to say on the amendment is that we have discussed in previous debates the inconsistency between different parts of government in relation to inspection. I must declare my interest again as chair of an NHS foundation trust and as a consultant trainer in the NHS. NHS foundation trusts, which the Government support, were meant to be given much more freedom than other NHS bodies but they are still subject to the tender mercies of a regulator called Monitor. For the life of me, I cannot see why the Government have taken such a light-rein approach to the construct in the Bill when we have such an excellent inspectorate in the form of HMIC. These amendments seem wholly constructive. By the grace of the usual channels, we have been given a little extra time—a day—to consider these matters. Is this not a matter which the Government might take back and consider?

[Baroness Hamwee]

My Lords, with regard to fees, I do not know whether my noble friend is in a position to give any comparables, but I think that local authorities have to pay—or have had to pay—for Audit Commission inspections and that it is the Audit Commission that has set the rates. There must be comparables. Maybe there are comparables which go either way; I do not know.

[Lord Wallace of Saltaire]

My Lords, we recognise we are proposing a different model for policing accountability from the previous model. I feel with a number of the arguments which the noble Baronesses, Lady Henig and Lady Harris, have made that they feel the current system is superb and any different system will be untested, untried, difficult and probably worse. Therefore, as the noble Baroness, Lady Harris of Richmond, said, we must insert safeguards; I think this would insert belt, braces and string as well.

The intention behind Clause 85—and the role of HMIC—is that HMIC should be there to inspect the professional forces. That is its job. That is what it does extremely well. In terms of funding, regular inspections will be paid for, as now, by the Home Office. The subsection which relates to police and crime panels being able to request additional inspections of part of the functions of those forces is precisely to give them added flexibility to request such inspections when needed. Therefore, it does not seem unreasonable to say, as this clause says, that,

“such reasonable costs incurred or to be incurred in connection with the inspection”,

should be reimbursed by the PCP.

In terms of who inspects the PCC, the whole relationship between the police and crime panel and the police and crime commissioner is intended to be that the checks and balances are provided by the police and crime panel. The regular check on the police and crime commissioner is provided by the police and crime panel. That is the process which we are trying to build into the new model. To muddy the role of HMIC by inspecting police and crime commissioners and police and crime panels does not seem appropriate to the model we propose. The model we are introducing through the Bill is that HMIC should continue to focus on the professional police forces and to report to the public as well as the Secretary of State on that. Police and crime commissioners will be held to account, under scrutiny, on a regular basis by police and crime panels. Police and crime panels are part of the structure of local government and local authorities and, I am sure, will continue to be held to account by their fellow councillors, particularly if they vote through precepts which rise rapidly year by year. On that basis, I hope that I have provided some reassurance to the noble Baroness, Lady Henig, although I am sure that she is completely unpersuaded that any new system can possibly be as good as that which we currently have. Nevertheless, I hope that I have persuaded her to withdraw her amendment.

22:45

[Baroness Henig]

I thank the Minister for that response. However, I do not think that he fully understood what I was arguing. I was not arguing that everything is wonderful in the present system; in fact, until recently, police authorities were not inspected. It is only quite recently that they became inspected, which had a tremendously focusing impact. Police authorities operated much more effectively once they were inspected, which has taken place only in the past two or three years if my memory serves me correctly. If elected councillors sitting on a police authority can be inspected, I do not understand why commissioners who have been directly elected cannot be. I do not understand the difference: they are both elected, albeit perhaps in different ways.

One reason why I have perhaps less confidence in the panels than the Minister is that I have yet to believe—and we are now on Report—that they will have any power. We keep talking about checks and balances. The panels have some rather pathetic veto powers requiring a two-thirds majority vote, but their input is not that great. I do not have much confidence that they will have any great impact on the way in which a commissioner operates.

My standpoint, funnily enough, has nothing to do with police authorities working well or not; my standpoint is the public. The whole point of the system is to serve the public. One of the strengths of policing in this country is local accountability to local people. It is local people that I am thinking of. They should have the reassurance on some sort of regular basis that commissioners are operating effectively—I do not see that there is anything wrong with that. I find it difficult to accept the repeated suggestion that I am asking for all sorts of radical and extreme things, when it seems that very sensible and basic issues are being raised. All I am suggesting is that it would be sensible for commissioners to be inspected, because it would give the public reassurance.

I am sorry that the Minister finds that so difficult to understand, because it seems to me to be very straightforward. However, in view of the lateness of the hour and because I do not want to test the patience of the House any further, I beg leave to withdraw the amendment.

Amendment 236 withdrawn.

Amendments 237 and 238 not moved.

Clause 87 : Inspection programmes and frameworks

Amendment 239 not moved.

Schedule 11 : Crime and disorder strategies

Amendment 239A not moved.

Amendments 240 and 241

Moved by

[Baroness Browning]

240: Schedule 11, page 145, line 42, at end insert—
“( ) In subsection (1), after “section 5” insert “, with subsection (1A),”.
( ) After subsection (1) insert—
“(1A) In exercising functions under subsection (1), apart from devolved Welsh functions (as defined by section 5(8)), each of the responsible authorities for a local government area must have regard to the police and crime objectives set out in the police and crime plan for the police area which comprises or includes that local government area.”.”

241: Schedule 11, page 146, line 22, leave out “5(7)” and insert “5(8)”

Amendments 240 and 241 agreed.

Amendment 242

Moved by

[Lord Ramsbotham]

242: Before Clause 91, insert the following new Clause—
“Status of British Transport Police Force
(1) After section 1(2)(c) of the Police Act 1996 insert—
“(d) the area over which the British Transport Police Force has jurisdiction.” (2) In section 30 of that Act insert—
“(2A) A member of the British Transport Police Force shall have all the powers and privileges of a constable throughout England and Wales and Scotland and the adjacent United Kingdom waters.”
(3) In section 101 of that Act, in the definition of “chief officer of police” insert—
“(d) in relation to the British Transport Police Force, the Chief Constable of that Force;”.(4) In section 1(2) of the Police (Property) Act 1997, in inserted section (2B) insert—
“(d) the British Transport Police Authority.”(5) Omit section 100 of the Anti-terrorism, Crime and Security Act 2001.”

[Lord Ramsbotham]

My Lords, I shall speak also to Amendments 243, 271, 272, 304, 305 and 306. Since all the amendments are to do with the British Transport Police and the British Transport Police Authority, they have been deliberately grouped together rather than with specific clauses. They aim, as I said at Second Reading, to,

“strengthen the Bill by increasing co-operation between the authority and other police forces, particularly in counterterrorism and in the run-up to the Olympics”.—[Official Report, 27/4/11; col. 173.]

I shall first outline the context in which the amendments have been tabled and apologise to the House for being unable to be here when they were debated in Committee. Again, as I said at Second Reading, I am an unashamed proponent of two-tier policing in this country, with a national police service complemented by a number of local and specialist forces. Bearing in mind that the last royal commission on policing was in 1962 and much has happened since then which suggests the need for reform of the policing as extant at that time, I was very disappointed to find that although called the police reform Bill, there is very little in it about reform, except about the governance of policing, which is not the same thing.

However, these amendments are about long-needed reform; they are an attempt to complete business that was begun as long ago as October 2001, when the then Government issued a consultation document entitled Modernising the British Transport Police, which included detailed proposals to bring it in line with Home Office police forces in terms of accountability, status and powers. It proposed, first, placing the jurisdiction of British Transport Police constables over the railways on a statutory basis; that was partly addressed in the Railways and Transport Safety Act 2003, which gave them the powers and privileges of a Home Office constable, not only over all railway property, but throughout Great Britain in relation to railway matters. It secondly proposed giving British Transport Police constables jurisdiction outside the railways in certain circumstances. This, again, was partly addressed in the Anti-terrorism, Crime and Security Act 2001, emergency legislation that followed 9/11 and other terrorist attacks.

However, although welcoming these changes, the Transport Police and its authority regarded them as only partial introduction of what had been proposed. Therefore, they tried to use the opportunity presented by the August 2008 consultation that preceded the Policing and Crime Act 2009 to address the identified anomalies once and for all. They submitted a formal request for a number of legislative changes that addressed the issues of police powers and jurisdiction to which, reprehensibly, they received no formal feedback from the Home Office. Instead, there was no consultation and they were surprised to find that Schedule 7 of the Act stated that:

“Where a member of the British Transport Police Force is for the time being under the direction and control of the chief officer of another police force by virtue of a police force collaboration agreement … the member shall have all the powers and privileges of a member of that other force”.

Furthermore, no attempt was made to address an added complication to co-operation that they had raised, namely that the powers of jurisdiction of police officers from Home Office forces were not extended to match those of a British Transport Police officer, which include the ability to police in England, Wales and across the border in Scotland.

Charitably, the British Transport Police assumed that these continued inequities were not intended, but resulted from a lack of knowledge about the anomalies that resulted from gaps in existing legislation. Therefore, they continued to look for opportunities to obtain parity of police-officer powers regardless of employing force, the next opportunity coming in September 2010 with the coalition Government’s consultation before the Bill, entitled Policing in the 21st Century; Reconnecting Police and the People.

The Bill envisages annual police plans, covering areas of the country yet to be determined, drawn up by elected police and crime commissioners. Assuming that, in logic, this must include all police forces, the Transport Police, in its response to the consultation, pointed out that, as the specialist national force for the railways, cross-border working was part of its day-to-day business. It welcomed the fact that, in drawing up their plans, PCCs would have to look beyond their own force borders,

“under a strong duty to collaborate, in the interests of value for money and to tackle cross border, national and international crimes”.

The British Transport Police also said that it was keen to ensure that the different governance structures between it and its authority and their Home Office colleagues and their authorities did not create difficulties in the excellent communications and partnership working that currently existed between them. There must be, for example, adequate provision for communications between the authorities and committees of the Transport Police, the Civil and Nuclear Constabulary, the MoD Police and police and crime commissioners, if they subsume the role currently filled by the Association of Police Authorities.

I mention this not to criticise the Bill so much as to suggest that these amendments to do with the British Transport Police ought to be government amendments. Identified anomalies that inhibit national and local policing have existed for far too long and have been drawn to the attention of both the Home Office and the Department for Transport over a number of years. Amendments 242, 271 and 272 are designed to rectify the status anomaly; Amendment 243 is designed to provide the opportunity for the Transport Police to protect the travelling public by taking preventive action against possible sex offenders.

The noble Lord, Lord Faulkner, will speak to Amendments 271, 272 and 304 to 306, covering licensing and firearms. All are designed to save money and better protect the public.

I appeal to the Minister to accept the opportunity created by the Police Reform and Social Responsibility Bill to complete this unfinished business. I know that both she and the Transport Police and its authority have been in contact with the Department for Transport and I look forward to hearing what may have been agreed between them. I accept that she will be unable to promise more than that the issues I have raised will now be tackled positively and not allowed to drag on as they have over the past 10 years. In that anticipation, I beg to move.

[Lord Faulkner of Worcester]

My Lords, I speak in favour of the seven amendments. I start by expressing my appreciation to the Minister for the constructive approach she has adopted in conversations with both the noble Lord, Lord Ramsbotham, and me about the role, powers and jurisdictions of the BTP. I know that she has written to the Transport Minister about these amendments and I hope that when she answers the debate she will be able to say that the Government at least accept the spirit of them, if not accept them tonight.

I know from what the Minister said in Committee that she is particularly concerned about licensing issues and the difficulties that the BTP and the travelling public face with anti-social behaviour on the railway fuelled by excessive drinking. I shall come to the amendments which deal with that issue in a moment.

I would like to add a word to what the noble Lord, Lord Ramsbotham, said about jurisdiction. This is covered in Amendment 242. The British Transport Police Authority has sent me a copy of a letter which was sent on 7 July from the chief constable of the force, Andrew Trotter, to the Minister of State for Transport, Theresa Villiers. In a paragraph headed “Jurisdiction”, he says:

“The current legislative anomalies mean that there are a number of caveats applied to the powers of BTP officers, these are provided not through our own Railways and Transport Safety Act 2003, but the Anti-terrorism Crime and Security Act 2001 (section 100(2) and (3)) which pre-dated it. The amendment laid before the House of Lords seeks to remove the ambiguity the current legislation creates through these caveats. If the amendment is approved, in the eyes of the public and the rail industry, it will have no obvious impact on day-to-day policing of the railways and I can assure you it will have no impact on costs or other resource implications. It will however put BTP officers on the same footing as their Home Office colleagues when not physically on rail property or carrying out duties related to the railways, i.e. they will be warranted officers not civilians”.

Amendments 271 and 272 deal with the Firearms Act. I read in the latest issue of Railnews, which is the monthly newspaper for rail industry staff, that the Government have approved the creation of an armed response unit for the BTP. That paper states:

“Transport secretary Philip Hammond said the Home Office go-ahead was not in response to any specific threat but would reduce the burden on other police forces which provide armed support to the BTP”.

That is all well and good and it is what the BTP chief constable asked for, but it appears that BTP officers, once selected and through the selection process, will have to apply individually for firearms certificates. This seems ludicrous and flies in the face of the Home Secretary’s determination to reduce bureaucracy in the police service—a point made by the chief constable in his letter to Theresa Villiers. The cost in direct financial terms and in opportunity costs to the BTP and Home Office forces to process more than 100 applications is completely avoidable simply by giving the BTP the same powers as those expressly quoted in the Act for the Civil Nuclear Constabulary and the Serious Organised Crime Agency. It also creates a delay in trained officers being fully operational. Our amendments avoid that and I hope the Minister will feel able to accept them too.

23:00

I turn finally to Amendments 304, 305 and 306. Amendments 304 and 305 seek to name the BTP as a responsible authority under the Licensing Act so it can object to a licence application, revoke a licence for premises located within the jurisdiction of the railway or object to a temporary licence. Amendment 306 explicitly provides for the BTP to receive the late-night levy from the licensing authority. Bearing in mind that so much BTP officer time is spent policing alcohol-related crime, disorder and anti-social behaviour, it seems most unfair that the BTP is not able to get some payment from the levy.

I have a number of statistics relating to offences on railway stations. The one that apparently has the greatest difficulty is Leeds station which has 18 venues, including a nightclub and a hotel. Alcohol-related offences at Leeds have increased by 122 per cent in the past five years. I will not go into any more detail at this late hour, but I am sure the Minister will agree with me that this is an unacceptable situation. There are few things more unpleasant or potentially terrifying for rail passengers to face, particularly women travelling on their own late at night, than a bunch of drunken yobbos terrorising a train or a station platform. We cannot claim that our amendments will solve this problem but the BTP and we certainly believe it will help them tackle it.

I hope very much that the Minister can accept the spirit of these amendments. The previous Government attempted to do that and were not able to produce exactly the right solution. She has the opportunity to produce a lasting solution for the future of the BTP’s powers and jurisdictions. If she does that, the travelling public, railway staff and the officers of the British Transport Police will be greatly in her debt.

[Lord Berkeley]

I support all these amendments, too. I will not repeat what the noble Lord, Lord Ramsbotham, and my noble friend Lord Faulkner have said because I fully support all their contributions, but it is worth pointing out that the BTP is pretty unique as a very specialist police force. I think the statistics are that half of its officers tend to operate in London, both on the Underground and on the main line, and the rest are split between the main line elsewhere in the country and Network Rail.

When it comes to dealing with incidents—whether it is some of the bad behaviour that my noble friend Lord Faulkner was mentioning or cable theft on the railway, which is a very serious issue and delays many trains—the BTP’s specialist knowledge in working safely on the lines, where there are sometimes high-speed trains and which sometimes can be electrified, is probably unique. When one has been delayed on the railways and has seen the difference in response professionalism between the local force that probably has not had much experience of this and the BTP, it brings into focus how important it is that the BTP’s expertise is maintained and enhanced.

It is absolutely essential that the ideas behind these amendments—that the BTP is put on the same footing as Home Office forces—are accepted. I hope the noble Baroness will accept the principle, but I wonder whether there is a problem because the BTP is the responsibility of the Department for Transport and other forces are the responsibility of the Home Office. I sometimes detect a kind of tension between the two, which the two previous noble Lords have also alluded to. I hope that these amendments will help to improve relationships and—something I see as being thoroughly important—enable BTP officers to move around, not just on the railways but in adjacent areas where they need to do their work without the constraint of having to apply to go into another force’s territory.

I look forward to hearing what the noble Baroness will say in response and I thoroughly support these amendments.

[Lord Stevenson of Balmacara]

My Lords, I shall make only three brief points. Like the others who have spoken, I should like to hear what the Minister will say in response to the case that has been put forward. When I spoke to these amendments in Committee, I am afraid I got into the history of the BTP but I will not repeat that. Noble Lords will know that my concern for and interest in the branch is real.

The noble Lord, Lord Ramsbotham, gave us an interesting history and pointed out some of the difficulties that the BTP has faced in trying to make its case to the Government. Those are very powerful and persuasive points. The additional comments from my noble friends Lord Faulkner and Lord Berkeley have made a pretty irresistible case. It is time to look at how the geographic forces interrelate with the BTP and vice versa. The safety of the travelling public and the interests of all concerned would benefit from that. I am concerned that it is perhaps more complex than has been said in the past few minutes. Therefore, we shall need to look at that sometime. However, I hope the Minister will reassure us that she will not leave it to ordinary processes and that, on this occasion, she will tackle what is required positively to give us some hope that the situation will not be allowed to drag on, and so that we get some resolution to these points.

[Baroness Browning]

My Lords, I am very grateful to all noble Lords who have contributed to the debate. I shall start by speaking to Amendments 242, 243, 271 and 272. In Committee I was grateful for noble Lords’ comments about the importance of integrated policing between the British Transport Police and the geographic police forces. This is why my honourable friend the Minister of State for Transport and I fully agree that these changes merit closer examination. I can assure noble Lords that, in taking this matter forward between us, there is certainly no tension between the two Ministers involved. I hope we shall meet fairly soon to set out and discuss what is behind these amendments and how we might take that forward in a practical way. I pledge to take a personal interest in the progress of this.

The proposed amendments cover a range of detailed and technical changes. These would significantly affect the status, jurisdiction and powers of the British Transport Police. It is therefore essential that the intentions of the amendments proposed are fully understood and that the consequences of the changes, for both the British Transport Police and wider policing, are closely examined. In particular, we need to ensure that the seemingly simple and straightforward legislative changes sought do not bring with them any unintended consequences. For example, Amendment 242 would change Section 1 of the Police Act 1996 to make,

“the area over which the British Transport Police Force has jurisdiction”,

into a police area for the purposes of the Act. The effect of this would be that references to police areas in any other legislation would apply to the police area of the British Transport Police, as defined in the amendment. A quick search has shown that there are 370 occurrences of the phrase “police area” in primary legislation. The impact of extending them all to the British Transport Police would be wide-ranging.

I have some detailed illustrations of what that would mean, including matters to do with the Children Act 2004, local safeguarding children boards and the Police (Property) Act. However, given the lateness of the hour, I hope noble Lords will understand that very careful and detailed consideration is needed before putting this into primary legislation. However, I am in touch with colleagues in the Department for Transport, with a view to exploring solutions to this to provide the necessary powers and jurisdiction that the British Transport Police seeks and which will enable it to deliver policing of the railways as efficiently and effectively as possible and without unintended consequences. I have discussed this with colleagues in the Department for Transport, and this examination and seeking to find the right way in which to put this into primary legislation will be an ongoing exercise for us. I assure noble Lords that, when appropriate changes are identified, my department will be prepared to consider making the necessary changes within suitable primary legislation. Although I cannot commit to putting the provision at this very late stage into the tail-end of this legislation, we will, as these proposals come forward and are validated, look to put them into primary legislation in future Bills. I understand that there is quite a bit of Home Office legislation coming up the track, if noble Lords will forgive the pun, and I would hope that there would be opportunities.

I thank the noble Lords, Lord Ramsbotham and Lord Faulkner of Worcester, for their amendments and I thank noble Lords for the support that has been given to them around the House. However, on the basis of what I have said, I ask them not to press their amendments.

I turn to Amendments 304 to 306, which address licensing. These amendments seek to put the British Transport Police on a par with the 43 territorial police forces in England and Wales for the purposes of alcohol licensing. I can see why that might seem a reasonable proposition at first glance. However, I am not able to accept the amendments, as I explained in some detail in Committee last month. However, I shall briefly reiterate the reasons.

Amendment 304 would make the British Transport Police a responsible authority under the Licensing Act 2003, which requires licensing authorities automatically to notify responsible authorities about licence reviews. Licence applicants, who will be local businesses or individuals, must also send copies to their local responsible authorities. In this Bill, we are increasing the list of responsible authorities to include health bodies and licensing authorities in their own right. We do not think it would be helpful to extend the list further to include the British Transport Police. Licensing is administered by local authorities, which make licensing decisions that reflect the needs of the local area. For this reason, the chief officer of police for the geographic area is a responsible authority under the Act. Likewise, other responsible authorities have as their focus the geographic area in which the premises are situated.

The British Transport Police is a broadly non-geographic force, with a specific, non-regional jurisdiction. It covers the transport network as a whole and so will not be relevant to some licensing authority areas. We do not think it would always be obvious in a given local area to which part of the British Transport Police licensing applicants should send their licensing forms. On top of that, the Government are unwilling to add to the burden on businesses by adding responsible authorities unnecessarily.

Of course, the British Transport Police has expert knowledge on alcohol-related late-night crime and disorder around transport hubs and on the transport network. We expect the British Transport Police to have effective lines of communication with the geographic constabularies and that it will continue to use them in future to raise any issues it has relating to alcohol licensing. In addition, I point out that because under this Bill we are removing the test of vicinity from the Licensing Act 2003, it will in future be open for anyone, including members of the British Transport Police, to make representations to the licensing authority in their own right. Applications for new licences do get advertised, and we are taking steps to require licensing authorities to publicise these online. I hope that would be of help to the British Transport Police. Making the British Transport Police a responsible authority would cause unnecessary bureaucracy for licensing applicants.

Amendment 305 seeks to make the British Transport Police a relevant person for the purposes of allowing it to object to temporary events notices. Residents’ organisations told us that, after crime, noise was their greatest concern in relation to temporary events. We are extending the right to object to the environmental health authority and allowing them and the police to object on the grounds of all four licensing objectives. We think that provides adequate protection for residents while again minimising unnecessary bureaucracy. I am confident that if the British Transport Police has concerns about temporary events, it can raise these in the course of their liaison with their local constabularies.

23:15

Finally, Amendment 306 would make the British Transport Police a recipient of the late-night levy funds alongside the geographic police forces. The levy is a means of raising revenue from licensed premises that sell alcohol late at night so as to ensure that such premises contribute to the costs of policing the late-night economy. I mentioned in Committee that, while I recognised that the British Transport Police must deal with late-night crime and disorder, its role is more limited. Its night-time role is restricted to areas where there is little or no public use of late-night railway transport. This applies to many licensing authority areas.

In any event, the geographic constabularies bear the overwhelming burden of late-night policing costs. The levy clauses will allow licensing authorities to retain up to 30 per cent of the net revenue to fund services in the late night, such as taxi marshals. Licensing authorities could decide, at their discretion, to give some of their retained funds to the British Transport Police in those areas where the BTP may incur specific costs of policing alcohol-related crime and disorder in the night-time economy. In addition, the Government have retained the power to amend the beneficiaries of the levy in regulations, should it transpire that it is desirable specifically to pass some of the levy funds to bodies such as the British Transport Police.

We have the greatest respect for the BTP, which carries out the difficult task of tackling crime on our transport network. However, for the reasons that I have given, I ask your Lordships to withdraw the amendments.

[Lord Ramsbotham]

My Lords, I thank the Minister for that very encouraging and positive response. I also thank her personally for the care that she has taken to meet with us and take on board the points that we have made and transfer them to the Department for Transport as well.

I think we are all encouraged, but I hope that the Minister will forgive me if I sound a note of caution, because promises have been made to the British Transport Police since 2001. I ask the Minister if we could now have from the Department for Transport and indeed the Home Office an action plan showing who is to do what and by when, which will be reported back to this House so that we can keep in touch with what is actually happening. We have been here before over the last 10 years and people have been frightened, I suspect, by the figures that she might have quoted to us and put the matter in the “too difficult” file. It is not a “too difficult” file; it is a file that must be actioned. Therefore, if I say that I am prepared to withdraw the amendments tonight but perhaps return to the subject on Third Reading briefly, I hope that at that stage the Minister might be able to assure this House that the action plan that I am calling for will be implemented so that these things really will happen rather than be allowed to wither on the vine.

[Baroness Browning]

I am very grateful to the noble Lord. I am sure that he is aware that Third Reading is next week—Tuesday or Wednesday, I believe. It was not my intention to have met with the Minister of State in the Department for Transport by then. However, I can assure him that I am planning to meet with her before the House returns in September. I think that she and I need to have an across-the-table discussion about the sort of thing that the noble Lord has mentioned. I am in favour of action plans and timelines. I quite like the concept of project management in this area. However, I do not want to talk it up too much, given that the noble Lord has told us that this has been on the table since 2001.

All I can say is that both my right honourable friend in the Department for Transport and I are minded to move this along as fast as we can. We will of course engage the British Transport Police itself in this negotiation. I am quite sure that it will relay to the noble Lord whether it feels we are making progress or not. However, as we make progress I will endeavour, on a very informal basis, to ensure that noble Lords who have expressed an interest in this are kept informed of the progress being made. I am quite sure that if we do not make that progress, the noble Lord will call me back to this Dispatch Box pretty rapidly.

[Lord Ramsbotham]

My Lords, I am very grateful for that. I do not know whether I have the right to say that but we of course have the opportunity, when the Bill goes back to the other place and comes back here, for progress to be made. It is terribly important, as the Minister has clearly realised, that we maintain the momentum rather than let this matter die. I beg leave to withdraw the amendment.

Amendment 242 withdrawn.

Amendment 243 not moved.

Clause 91 : Collaboration agreements

Amendment 244

Moved by

[Baroness Browning]

244: Clause 91, page 59, line 23, at end insert—
“( ) A statutory instrument containing an order under this section may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.”

Amendment 244 agreed.

Consideration on Report adjourned.

House adjourned at 11.21 pm.