House of Commons
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Hon. Members
Object.
To be considered on Tuesday 26 June.
Canterbury City Council Bill
Motion made,
That so much of the Lords Message [21 May] as relates to the Canterbury City Council Bill be now considered.—(The Chairman of Ways and Means.)
Hon. Members
Object.
To be considered on Tuesday 26 June.
Leeds City Council Bill
Motion made,
That so much of the Lords Message [21 May] as relates to the Leeds City Council Bill be now considered.—(The Chairman of Ways and Means.)
Hon. Members
Object.
To be considered on Tuesday 26 June.
Nottingham City Council Bill
Motion made,
That so much of the Lords Message [21 May] as relates to the Nottingham City Council Bill be now considered.—(The Chairman of Ways and Means.)
Hon. Members
Object.
To be considered on Tuesday 26 June.
Reading Borough Council Bill
Motion made,
That so much of the Lords Message [21 May] as relates to the Reading Borough Council Bill be now considered.—(The Chairman of Ways and Means.)
Hon. Members
Object.
To be considered on Tuesday 26 June.
City of London (Various Powers) Bill [Lords]
Motion made,
That so much of the Lords Message [21 May] as relates to the City of London (Various Powers) Bill [Lords] be now considered.—(The Chairman of Ways and Means.)
Hon. Members
Object.
To be considered on Tuesday 26 June.
Transport for London Bill [Lords]
Motion made,
That so much of the Lords Message [21 May] as relates to the Transport for London Bill [Lords] be now considered.—(The Chairman of Ways and Means.)
Oral Answers to Questions
(12 years ago)
Commons ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Rebecca Harris (Castle Point) (Con)
1. What recent progress has been made in the E3 plus 3 talks with Iran; and if he will make a statement.
The Secretary of State for Foreign and Commonwealth Affairs (Mr William Hague)
The E3 plus 3 held talks with Iran in Istanbul and Baghdad this year, and talks took place in Moscow yesterday and are continuing. I told Foreign Minister Salehi of Iran last week that the E3 plus 3 is sincere and united in its approach to the negotiations. We have made a credible offer to Iran, focused on a halt to 20% enrichment and on confidence building. The onus is now on Iran to respond. If it takes concrete steps, the international community will reciprocate.
Rebecca Harris
I welcome the hard work the Government are doing as part of the E3 plus 3 to bring a peaceful, diplomatic solution to the dispute with Iran. Will my right hon. Friend give more details about the offer that the E3 plus 3 has made to Iran? Does he agree that if Iran fails to accept that offer, the pressure of more sanctions will be necessary?
Mr Hague
Yes, I agree with my hon. Friend. There is a long-standing offer from European Union nations to assist with civil nuclear power in Iran once we are assured that its nuclear programme is purely for peaceful purposes. The offer made at the talks in Baghdad is an attempt to resolve the nuclear issue. It is focused on confidence-building measures and a halt to 20% enrichment. The ongoing talks in Moscow are tough and frank, and both sides have set out clear priorities. It is, of course, our intention that the European Union’s oil sanctions will come into force on 1 July. If no progress is made, we will certainly want to intensify the sanctions.
Sir Malcolm Rifkind (Kensington) (Con)
Does the Foreign Secretary agree that any serious concessions by the Iranians should be welcomed, but that for the discussions and negotiations to succeed the Iranians will have to demonstrate, with full verification and transparency, that they no longer seek either nuclear weapons or a nuclear weapons capability?
Mr Hague
That would be required for the issue to be settled and for the negotiations to succeed. It is important for Iran to announce concrete steps and to put forward concrete proposals. It has put forward some proposals in the talks in Moscow over the past 48 hours. As I have said, the talks remain very tough and frank, and have not met with success so far. In the absence of success, including as my right hon. and learned Friend defines it, the international pressure will only be intensified.
Paul Flynn (Newport West) (Lab)
We lost 179 of our brave soldiers in pursuit of non-existent weapons of mass destruction in Iraq. We have lost 419 soldiers protecting the United Kingdom from a non-existent Taliban terrorist threat. Are we to expose more British lives to defend ourselves from non-existent long-range Iranian missiles carrying non-existent Iranian nuclear weapons?
Mr Hague
The hon. Gentleman must not fall victim to Iranian propaganda about that, and of course we could also differ about some of the premises of his question, including the terrorist threats that have emanated from Afghanistan. I hope he will support the fact that the whole of our effort is going into finding a peaceful diplomatic solution. That is what the twin-track approach of sanctions and negotiations is about. One hundred per cent of our effort is dedicated to a diplomatic solution to the problem.
Martin Horwood (Cheltenham) (LD)
Will the Foreign Secretary acknowledge the important role of Baroness Ashton and the European External Action Service in making the talks happen? Does he agree that that has increased the possibility of finding a peaceful pathway out of the crisis?
Mr Hague
Baroness Ashton is playing a very strong and effective role in leading the negotiations of the E3 plus 3. It is impressive that all six nations involved, including Russia and China, are working very closely together and presenting a united front and a united set of negotiating requirements. That adds greatly to the power of our position in the negotiations.
John Robertson (Glasgow North West) (Lab)
2. What recent discussions he has had with the government of Singapore on human trafficking.
The Minister of State, Foreign and Commonwealth Office (Mr Jeremy Browne)
Our high commission in Singapore has supported local anti-trafficking initiatives. We welcome Singapore’s first national plan of action against trafficking in persons, published in March 2012, and look forward to further measures being implemented to tackle the problem.
John Robertson
We all agree that Singapore’s Government are moving in the right direction, and they have been backed up by EU parliamentarians. Is it not time that we used in the Commonwealth what has happened in Singapore and is happening in the EU? Is anything being done in the Commonwealth in relation to Singapore?
Mr Browne
It is fair to say that Singapore is not one of the nine priority countries on human trafficking that the Home Office identified last year, which are Nigeria, China, Vietnam, Slovakia, the Czech Republic, Uganda, Romania, India and Albania. We nevertheless recognise that there are concerns. Progress has been made, and we are keen to work with others in the Commonwealth and further afield to make further progress.
Mr David Burrowes (Enfield, Southgate) (Con)
Given that human trafficking is a cross-Government issue, what steps is the Minister taking with the Department for International Development to ensure that as we pursue the millennium development goals and sustainable development goals, the goal of tackling human trafficking is not missed?
Chi Onwurah (Newcastle upon Tyne Central) (Lab)
3. What recent discussions he has had with his EU counterparts on the co-ordination of security efforts in (a) Niger, (b) Nigeria and (c) Africa.
The Parliamentary Under-Secretary of State for Foreign and Commonwealth Affairs (Mr Henry Bellingham)
We have regular discussions with EU partners, both in Brussels and across Africa, as part of our co-ordinated strategy on addressing peace and security issues. The discussions cover Niger, Nigeria and wider African issues such as the European Council conclusions on the Sahel.
Chi Onwurah
The extremist Islamic group Boko Haram is responsible for countless atrocities across Nigeria, including attacks on three churches just last weekend. It then disappears into the Nigeria-Niger border area. The British Government provide security assistances to Nigeria, and I understand that the French do the same for Niger. Will the Minister promise to talk to his counterparts in France to ensure that support is properly co-ordinated, so that that terrible organisation finds it less easy to hide?
Mr Bellingham
I certainly share the hon. Lady’s condemnation of those appalling attacks, and of the retaliatory attacks by Christians against Muslim communities. We condemn both communities for what happened and urge the Nigerian Government to do what they can to secure calm. The UK has shared its experience on counter-terrorism policy, doctrine and legal frameworks, and we will of course co-ordinate our actions with the French. The President of Niger, President Issoufou, was in London all last week at the invitation of my right hon. Friend the Secretary of State, and we discussed with him a number of counter-terrorism and security issues.
Ms Margaret Ritchie (South Down) (SDLP)
Given that there is regular and substantive high-level contact between British and Nigerian Ministers, what evaluation have the Government and other EU countries carried out of the Nigerian economy and the impact on it of the security measures that have had to be implemented as a result of terrorism, kidnapping and armed robberies?
Mr Bellingham
The Nigerian economy is growing rapidly, but most of the growth is concentrated in the south, around Lagos, which is expanding to about 15 million people. The tragedy of the communal killings and lack of security in the north is harming growth in a big way, which will lead to a great deal of poverty, youth unemployment and other problems. That is why it is so important that communities are reconciled so that the economy can grow and wealth can be created.
Graeme Morrice (Livingston) (Lab)
4. What recent discussions he has had with his NATO counterparts on the rights of women and minorities in Afghanistan.
Gemma Doyle (West Dunbartonshire) (Lab/Co-op)
10. What recent discussions he has had with his NATO counterparts on the rights of women and minorities in Afghanistan.
The Secretary of State for Foreign and Commonwealth Affairs (Mr William Hague)
At the Chicago NATO summit in May, I discussed with NATO colleagues our continuing support for the fundamental human rights of all Afghan citizens and full implementation of UN Security Council resolution 1325 on women, peace and security. The final summit communiqué reaffirmed our commitments in these areas.
Graeme Morrice
How do the Government plan to ensure that violence against women is addressed at the upcoming Tokyo meeting on Afghanistan?
Mr Hague
We have encouraged the Afghan Government to implement the elimination of violence against women law that has been agreed in principle, and to bring into practice the UN convention on the elimination of all forms of violence against women. We bring these matters up with the Afghan Government regularly and work with many people in the Afghan Parliament to encourage that agenda. I am pleased to say that women now hold 69 of the 249 seats in the lower House of the Afghan Parliament, which bears favourable comparison with some European countries.
Gemma Doyle
What is the Foreign Secretary’s response to President Karzai’s endorsement of the code of conduct published by the ulema council of clerics, which permits men in Afghanistan to beat their wives? Will the Foreign Secretary guarantee that women’s rights will not be sold down the river in negotiations on the future of Afghanistan?
Mr Hague
The hon. Lady can gather from what I have said how strongly the Government are committed to making further progress on those issues, as she obviously is. One reason we want to encourage the implementation of the laws I mentioned in response to the previous question is the statement and the code of conduct to which she refers. We have discussed the code of conduct with representatives of Afghan civil society. Their advice is to concentrate—parallel to whatever the code says—on the good work that they and we are doing to improve women’s rights in Afghanistan in other ways.
Mr James Gray (North Wiltshire) (Con)
Does the Foreign Secretary agree that fighting for women’s rights in Afghanistan has been an incredibly important part of the role so brilliantly carried out by, most recently, 20 Armoured Brigade, 120 of whose soldiers will march through Carriage Gates this afternoon at precisely 3.30 pm, to be met by as many hon. Members as I hope can find time to be there?
Mr David Ward (Bradford East) (LD)
Some continue to say that our troops have lost their lives in Afghanistan in vain, and that they should come home today. What, in the Secretary of State’s view, would be the situation regarding the rights of women and minorities if that were to happen?
Mr Hague
If we were to pull our troops out of combat prematurely and cease many of the other efforts we are making in Afghanistan, the position would be much more difficult, because through this period, when our and other forces are present, and when we are working closely with the Afghan Government, the prospects for women’s rights are improving. I am sure the timetable we have set is right—our troops will cease to be in combat after the end of 2014—but I hope the concepts of women’s rights are becoming more entrenched in Afghan society and politics all the time.
Mr John Spellar (Warley) (Lab)
Does the Secretary of State agree that women’s rights in Afghanistan are a fundamental part of the security agenda, and that they must be protected in any settlement? That will require the involvement of women in peace and transition talks, to protect the gains made over recent years. Does he therefore recognise that time is rapidly moving on in those discussions? What will he do to try to inject some urgency into the process?
Mr Hague
This country makes a constant effort to ensure that urgency is part of the process. I was in both Pakistan and Afghanistan last week, talking to the Governments of both countries about reconciliation and their relations with each other in promoting a political settlement and reconciliation in Afghanistan. Of course, we will continue with all those efforts, bearing it in mind that the process must be Afghan led, and that Afghans must determine their own future. We are trying to support that process rather than dictate to them the future terms of their settlement.
Mrs Helen Grant (Maidstone and The Weald) (Con)
Rape and other forms of sexual violence have frequently been used as weapons of war against women in Afghanistan and the world over. What initiatives is the Foreign Secretary taking to counter this massive issue and to move it up the global agenda?
Mr Hague
We believe that this issue should have massively more attention in the international community, which is why, on 29 May, I launched a new initiative of the British Government. We are assembling a team that will gather evidence of sexual violence being used as a weapon of war and can be deployed in different parts of the world. We encourage other countries to do the same. It will be a major theme of the foreign policy part of our G8 presidency, and I welcome my hon. Friend’s support.
Nic Dakin (Scunthorpe) (Lab)
5. What recent discussions he has had with his European counterparts on the eurozone crisis.
Karl Turner (Kingston upon Hull East) (Lab)
14. What recent discussions he has had with his European counterparts on the eurozone crisis.
The Secretary of State for Foreign and Commonwealth Affairs (Mr William Hague)
My ministerial colleagues and I have regular discussions with our eurozone and European counterparts. It is in the UK’s interests to have a stable eurozone, the countries of which must do all they can to stand behind their currency.
Mr Hague
We might be drifting away from foreign policy, Mr Speaker. The fact that the United Kingdom has its safe haven status, with the lowest interest rates in our history, is an important point that the hon. Gentleman ought to remember. When our Prime Minister put his name to the letter ahead of the March European Council, along with 11 other Heads of European Governments, calling for measures to stimulate growth—improving the single market, free trade agreements with other nations and removing barriers to business—it received a strong endorsement from many European nations. Clearly we influence the debate very strongly.
Karl Turner
I hear the Foreign Secretary’s response to my hon. Friend, but yesterday the Prime Minister gave what is becoming his all-too-familiar speech to eurozone countries. Does the Foreign Secretary agree that reciting the same old platitudes is a poor excuse for leadership? Is it not time for a plan for jobs and growth?
Mr Hague
The Prime Minister is fully entitled to say what he believes should be done, as are many other world leaders at the G20. There is no reason the UK should be unable to give its views about what should happen in the eurozone, given that the United States and many other countries are free to do so. The eurozone economies have an important effect on our economy, and what is happening there is having a chilling effect on our economy, so we are fully entitled to give our views, as well as to show strong leadership in controlling and bringing down the excessive deficits left to us by the Labour party and in having a safe haven status that is the envy of much of the rest of Europe.
Mr William Cash (Stone) (Con)
My right hon. Friend is a great historian as well as Foreign Secretary. Does he accept that the eurozone crisis is not only a eurozone crisis but a European Union crisis, and political, economic and democratic in nature? Given that it affects the daily lives of 450 million people in Europe, has the time not come for a convention, not of the kind held last time, but one based on the principles of democracy and the defence of the British nation?
Mr Hague
I will go so far with my hon. Friend, as usual, but not all the way, as usual. I absolutely agree that the crisis is having a major effect not only on those in the eurozone but more broadly, and that it is having major political as well as economic ramifications. As for drawing together, in whatever form, reflections on the future of Europe arising from the crisis, however, it would be better to do that when one can discern how the crisis will end and progress and develop over the coming months.
Joseph Johnson (Orpington) (Con)
Many residents in Orpington work in financial services and make a big contribution to the success of this country’s biggest export sector. Can the Secretary of State say what safeguards the UK financial services sector might need in the event of steps towards banking union in the eurozone and fiscal compact countries?
Mr Hague
Safeguards will certainly be needed—my hon. Friend is quite right to raise that—but as things stand proposals and ideas about banking union take many different forms. Many people mean many different things by “banking union”. If such proposals are made more tangible and specific, we will set out the specific safeguards that we think we need for the single market. We are already making the case in European capitals that in the event of a banking union in the eurozone, which, by the way, we will certainly not be part of—let me make that absolutely clear—such safeguards will be necessary.
Mr Douglas Alexander (Paisley and Renfrewshire South) (Lab)
I am intrigued by the apparent complacency of the Foreign Secretary’s most recent answer. Given the Chancellor’s advocacy of greater integration in the eurozone, would the Foreign Secretary be willing to set out for the House what legal or political safeguards for British businesses and exporters the Government will be proposing at next week’s European Council?
Mr Hague
The Chancellor has set out exactly what we think should happen. For the eurozone to be successful, it is necessary to have more support from stronger economies, to help weaker economies adjust; more pooling of resources, whether through common eurobonds or some other mechanism; a shared back-stop for the banking system, to strengthen banks and protect deposits; and, as a consequence, much closer oversight of fiscal and financial policy. That is what we believe the eurozone needs to do. However, if it were to adopt measures that affect—or may affect, in any way—the ability of the single market to operate effectively and in the interests of this country, we will need the safeguards for which we are already making the case. Once we have specific proposals, we will set out those specific safeguards.
Mr Alexander
If President Hollande is successful at next week’s European summit in securing agreement for a jobs and growth package, will the Prime Minister support his new-found best friend in this endeavour or will the Government stick to their failing austerity-alone approach, which has delivered a double-dip recession here in Britain?
Mr Hague
The Opposition might need to take a closer look at some of the things that President Hollande is advocating, because he is saying that France must balance its budget by 2017. He is also saying that growth cannot come from state spending and that it must be reined in—to use his words—so perhaps the Opposition might care to decide whether they truly support the words of President Hollande.
Stephen Phillips (Sleaford and North Hykeham) (Con)
6. What steps his Department is taking to encourage inward investment from developing economies through the diplomatic network.
The Parliamentary Under-Secretary of State for Foreign and Commonwealth Affairs (Mr Henry Bellingham)
We are strengthening the UK’s diplomatic network to increase substantially our presence in emerging markets. This will transform relationships in the fastest growing cities and regions, and reinforce work on investment opportunities, which is obviously a key part of repositioning our economy and our drive for export-led growth.
Stephen Phillips
I welcome the Government’s commitment to the expansion of our commercial-diplomatic network, but given the pressure on budgets, including that of the Foreign and Commonwealth Office, how are these measures and the programme of opening new embassies to be funded?
Mr Bellingham
We are already in the business of opening new embassies. We have opened two this year in Africa—I opened one in Abidjan the other day—and we are opening embassies in Mogadishu, Monrovia, Antananarivo, in Madagascar, Bishkek, in Kyrgyzstan, and San Salvador. This will be paid for through a gradual reduction of our footprint in Iraq and Afghanistan and the closure of various subordinate posts in Europe.
Mr Andrew Love (Edmonton) (Lab/Co-op)
The level of trade and investment involving the BRIC countries—Brazil, Russia, India and China—is a source of some disappointment to our British economy. What steps is the Minister taking to strengthen our role in those emerging markets, where there are real opportunities for growth?
Mr Bellingham
I can assure the hon. Gentleman that we are working absolutely furiously to try to increase the amount of trade with those countries. UK Trade and Investment—indeed, the entire network—is working as hard as it can to increase trade. In fact, in all those countries our bilateral trade is on target to double over the comprehensive spending review period. Of course there is more work to do, but I would suggest that, through the efforts of Ministers, UKTI and our missions, we are making good progress.
Tristram Hunt (Stoke-on-Trent Central) (Lab)
7. What recent assessment he has made of his Department’s procurement policies.
The Minister for Europe (Mr David Lidington)
We are always looking for opportunities to improve efficiency and to support cross-Government policies such as open procurement to small and medium-sized enterprises.
Tristram Hunt
I thank the Minister for his answer. Given the Government’s mercantilist foreign policy, should we not be using our embassies to show off the best of British? Ceramics businesses in my constituency complain that our consulates are undermining exports by not using British-made ware. Will the Minister confirm that, in future, when dinner is served and when tea is poured in UK embassies across the world, the words “Made in Stoke-on-Trent” will be in evidence?
Mr Lidington
The hon. Gentleman is a good champion of the interests of his city and his constituents in this regard. The Government are well aware of the fine quality of the porcelain from Stoke-on-Trent and, indeed, from other places in the United Kingdom, but in taking procurement decisions we have to balance the wish to showcase the best of British with the need to provide value for money, so that we can continue to protect front-line services.
Mark Menzies (Fylde) (Con)
8. What recent assessment he has made of the political situation in Syria.
The Secretary of State for Foreign and Commonwealth Affairs (Mr William Hague)
The political situation in Syria is dire. All parties must now implement the Annan plan, and the international community needs to come together to compel the regime to do so. Major General Mood is briefing the United Nations Security Council today, and we stand ready to pursue robust action in the Security Council.
Mark Menzies
Can the Secretary of State assure the House that every peaceful diplomatic effort is being made to prevent the Syrian Government from getting their hands on weapons that they can use against their own people?
Mr Hague
Yes, I can. We have in place a European Union arms embargo for Syria, and we discourage anyone else from supplying it with arms. We have had specific discussions with Russia on that matter, and I am pleased that the ship that was reported to be carrying arms to Syria has now turned back, apparently towards Russia.
Paul Goggins (Wythenshawe and Sale East) (Lab)
As the Foreign Secretary knows, Syria has a large stockpile of chemical weapons. Is he confident that, when the Assad regime falls, the international community will be willing and able to secure those weapons to ensure that they do not fall into the hands of Hezbollah or of affiliates of al-Qaeda?
Mr Hague
The right hon. Gentleman raises an extremely important point. The existence of such weapons has long been one of our concerns about Syria, and it is a concern in this situation. Yes, I am confident that the international community will take any necessary action on that, but I do not want to go into any more detail today.
Sir Peter Tapsell (Louth and Horncastle) (Con)
Does the United Nations understand that the Syrian tragedy is essentially a sectarian civil war, with Saudi Arabia and Iran supplying arms and money to their rival surrogates inside Syria, and that Russia, for well understood reasons, is determined to prevent the Sunni from overthrowing the Alawites?
Mr Hague
My right hon. Friend and I have had this exchange several times, and he is right to point out the importance of the Sunni-Shi’a tensions, and sometimes conflicts, in the region. As I have said before, however, I believe that there is more to it than that. There are also many people in Syria, of different ethnicities, religions and beliefs, who want freedom and democracy in their country, and who want to be rid of their repressive regime. The factors that my right hon. Friend has mentioned are not the only ones at work, but they certainly add to the complexity of the situation. They also add to the importance of opposition forces representing all groups in Syria and preserving their rights in the future, as well as the importance of trying to negotiate a peaceful political transition in Syria, which is what we are attempting to do.
Mr Douglas Alexander (Paisley and Renfrewshire South) (Lab)
In his recent answer, the Foreign Secretary reiterated his support for the Annan plan, but only last week the UN was forced to suspend the observer mission in Syria. In the light of that suspension, does he accept what is already clear to many people on the ground in Syria—namely, that the Annan plan is simply not working? Will he set out today the steps beyond the Annan plan that the UK is now advocating that the international community take to bring about a cessation to the violence in Syria?
Mr Hague
I accepted, some time ago, that the Annan plan was not working. It is not working at all at the moment, but it would be wrong to give up completely on the plan, because the road to any peaceful settlement in Syria will be through either the Annan plan or something very similar to it. It is therefore important to persist with those efforts, and we are doing that particularly in our talks with Russia. I met the Russian Foreign Minister again in Kabul last week, and the Prime Minister has met President Putin in the past 24 hours to pursue this matter further. We are seeking international agreement, including with Russia, on how to ensure the implementation of the Annan plan. We are ready to take that matter forward at the UN Security Council or in a contact group, or in both together. Of course, if all those efforts fail, we will want to return to the UN Security Council, as well as greatly to intensify our support for the opposition and to see more sweeping sanctions from across the world.
Sir Menzies Campbell (North East Fife) (LD)
Is my right hon. Friend aware of reports that this afternoon the United Nations will decide to withdraw completely UN monitors? Were that to happen, a valuable independent source of information about what is taking place in Syria would simply be lost. I do not expect a detailed reply to the question I am about to put to him, but may we take it that the United Kingdom will use all available methods of obtaining information to ensure that we have a clear view of what is happening in Syria?
Mr Hague
Yes, certainly, of course we will do that. We are awaiting at the UN Security Council today the briefing of Major-General Mood, who has been heading the monitoring mission, so no decision about what will happen to the mission has been taken in advance of that. It is very important that information is assembled, particularly about crimes and atrocities that have been committed. Earlier this year, we sent teams to the borders of Syria to assemble such evidence. The Syrian activists who assembled the evidence of the massacre at al-Houla were trained by the United Kingdom. We will continue our efforts to make sure that one day justice can be done.
Dr William McCrea (South Antrim) (DUP)
Can the Foreign Secretary suggest any new initiative that will encourage political development and progress in Syria, and stop the daily slaughter of the innocent?
Mr Hague
The initiatives I have mentioned are all really a continuation or extension of the initiatives that have already been taken. We have not given up the search for an internationally agreed peaceful transition in Syria, but it is vital for such a transition to have the active support of Russia. That is why over recent weeks we have attached such importance to diplomacy with Russia. We will continue with those efforts.
Richard Ottaway (Croydon South) (Con)
The Foreign Secretary will know from conversations with the Russians that they are accusing us of using their veto as a fig leaf for our lack of policy. Will he nail that once and for all by pointing out that a united international community is far more likely to achieve results than a divided one?
Mr Hague
Yes. I think it would be wrong to characterise the Russian veto in that way. The veto exercised by Russia and China in February was against all the other 13 members of the United Nations Security Council, which very much favoured a united international stand on this issue. Nevertheless, Russia has supported the Annan plan and has agreed with the two most recent UN resolutions. That is why we continue to discuss the issues with them and to work with them. I hope we can reach a common position with them on the implementation of the Annan plan or something very close to it.
Ian Murray (Edinburgh South) (Lab)
I recently met a large group of Syrian students. Will the Foreign Secretary update us on any information he has or any discussions he is having with the Home Office about Syrian student visas? Some are being forced to return home where their lives are at risk. Will the right hon. Gentleman update us on what progress is being made to make sure that the German and US model is followed, allowing them to stay?
Mr Hague
That is more of a question for my right hon. Friend the Home Secretary, but as the hon. Gentleman asks, I will discuss the issue with the Home Office. We have very clear rules in this country: we do not return people to a situation in which they are likely to be tortured, killed or abused. If we thought that that was going to happen to these people, we would not do that, but I will take up the hon. Gentleman’s point further.
Eric Ollerenshaw (Lancaster and Fleetwood) (Con)
9. What steps his Department is taking to encourage political stability in Bangladesh.
The Parliamentary Under-Secretary of State for Foreign and Commonwealth Affairs (Alistair Burt)
I visited Bangladesh at the end of May. In conversations with the Prime Minister, the Foreign Minister and the leader of the opposition, I was able to stress how important it is to have free and fair elections with full political party participation by early 2014. Improving human rights, democracy and the rule of law—all foundations of political stability—are key parts of the UK’s development assistance programme there.
Eric Ollerenshaw
I thank the Minister for his reply, but does he agree with me that the British Bangladeshi community could do a great deal more to help with this process, rather than adding fuel to the divisions, as is sometimes the case?
Alistair Burt
My hon. Friend has made an important point. It is true that Bangladeshi political culture is very confrontational. The stand-off between the leaders of the major parties is very deep and very bitter, and in my time in Bangladesh I encountered many people who believed that the country—which is doing very well in many respects—would do better if there were a more co-operative political process. I think that the diaspora in the United Kingdom could indeed play a part in that.
Mr Frank Roy (Motherwell and Wishaw) (Lab)
11. What recent steps he has taken to raise the issue of human rights abuses with the Government of Bahrain.
Ann Clwyd (Cynon Valley) (Lab)
12. What recent discussions he has had with his Bahraini counterpart on the implementation of the recommendations of the Bahrain Independent Commission of Inquiry report.
The Parliamentary Under-Secretary of State for Foreign and Commonwealth Affairs (Alistair Burt)
The United Kingdom Government take many opportunities to raise concerns about human rights and the importance of implementing the independent commission's recommendations with the Bahraini Government. I visited Bahrain on 11 June, and had an opportunity to discuss the issues directly with Bahraini Government representatives, members of Opposition parties and representatives of civil society.
Alistair Burt
The Human Rights and Democracy report contains a case study examining circumstances in Bahrain. It is true that our process of reporting has tended to mean that that if difficulties arise during the year, they are not always included. Compiling the reports on a quarterly basis will give us more opportunity to include more information. Bahrain is included as a cause for concern, and we have regular conversations with members of all sides there. The picture is very complex.
Alistair Burt
The truth is that there are elements on both sides of the divide in Bahrain who want to talk to each other, and elements on both sides of the divide who do not. I spoke to representatives of the major Opposition party. It is difficult to engage members of the Opposition in negotiations because they have preconditions which they claim not to have, and the same can be said about some members of the Sunni support side. It is a complex picture, but what the United Kingdom does is encourage both sides to engage. We are using, for example, our experience in Northern Ireland, where good political leadership and a great deal of dialogue led to reconciliation and the bringing together of two elements of society that had been bitterly divided. There is much that we are delivering, and much that we can do.
Conor Burns (Bournemouth West) (Con)
May I follow up the point raised by the right hon. Member for Cynon Valley (Ann Clwyd)? The Government of Bahrain have consistently held the view that the door is open for a meaningful dialogue with members of Opposition parties, which are, of course, recognised in Bahrain. The Government cannot have that dialogue on their own. The Opposition have a moral responsibility to come to the table and engage in meaningful dialogue with the Government in order to make progress.
Alistair Burt
My hon. Friend is right. Bahrain is sometimes portrayed as having no Opposition activity, with marches postponed or cancelled, but in the run-up to the grand prix recently Al-Wefaq, the main Opposition party, held authorised demonstrations. However, as my hon. Friend says, if a meaningful dialogue is to take place, there must be two sides to it. We will continue to urge both Opposition and Government to engage in such a dialogue, because the implementation of the commission’s recommendations is just as important as the recommendations themselves.
Mr Robert Buckland (South Swindon) (Con)
I welcome the setting up by the Bahraini Government of a Ministry of Human Rights and Social Development, but what is my hon. Friend’s assessment of the progress that is being made? Are the reforms having a real effect on the quality of human rights in Bahrain?
Alistair Burt
There are developments that make a difference, such as human rights training in the security forces and a code of conduct for the police, efforts to prosecute members of the security forces who may have been involved in offences last year, and a general recognition that the recommendations in the independent commission’s report need to be implemented. A series of reforms are taking place, but, as my hon. Friend suggests, more needs to be done.
Rosie Cooper (West Lancashire) (Lab)
13. What recent assessment he has made of efforts to encourage the Israeli and Palestinian leaderships to return to negotiations.
The Secretary of State for Foreign and Commonwealth Affairs (Mr William Hague)
I welcome the recent efforts by the Palestinian and Israeli leaderships to renew direct contacts. We have urged both sides to focus on dialogue, to avoid any steps that could undermine the prospects for peace and to work towards the resumption of direct negotiations.
Rosie Cooper
Following the Israeli Deputy Prime Minister’s reported request to meet the Palestinian President, what steps is the Secretary of State taking to help both parties to overcome the current impasse and resume negotiations?
Mr Hague
We are strongly urging both sides to build on the current contacts, and we have discussed that with, among others, the new Israeli Deputy Prime Minister. Those contacts include the joint statement of 12 May following the exchange of letters between Prime Minister Netanyahu and President Abbas. We are encouraging them to resume direct negotiations. We welcome the statement by Prime Minister Netanyahu that the new coalition in Israel presents an opportunity to advance the peace process, and we urge them to take that opportunity.
Simon Hughes (Bermondsey and Old Southwark) (LD)
19. Much of the watching world is troubled by the thought that if there is continuing delay, there will be continuing illegal building of habitations by Israel in Palestine. Can the Foreign Secretary assure me that this issue will be a high priority for the Government, because with every year that passes the chance of peace and justice in those two countries recedes?
Mr Hague
I agree with my right hon. Friend, and he knows how regularly and vigorously we raise this issue. I have straightforwardly condemned recent announcements of settlement activity on occupied land. It is because of that activity that the opportunity for a two-state solution will slip away unless it is agreed in the not-too-distant future, so this remains one of the world’s most urgent and pressing issues.
Teresa Pearce (Erith and Thamesmead) (Lab)
15. Whether his Department has issued guidance to Ministers on attending the European football championships in Ukraine.
The Minister for Europe (Mr David Lidington)
I am sure the entire House will wish the England players every success in their match later today. On the question of attendance by Ministers, however, we took the decision that no Ministers should attend group games at Euro 2012. We are keeping the question of attendance at later stages under review.
Teresa Pearce
I am pleased to hear that Ministers have been asked not to attend group games, but why are the Government not also making it clear now that they rule out any official ministerial attendance at England matches at all stages, even the final?
Mr Lidington
We have consistently said to the Ukrainian Government that the selective use of justice in Ukraine is unacceptable and we want their policy to change. There is still time for improvement, but unless that happens I do not want to hold out much hope that our policy will shift.
Bob Blackman (Harrow East) (Con)
Does my right hon. Friend welcome the fact that the England team went to Auschwitz-Birkenau ahead of the tournament to bring home to people, in eastern Europe in particular, the horrors of the Nazi atrocities? What a welcome respite that is from some of the terrible things we have heard about in Ukraine.
Mr Lidington
I entirely endorse what my hon. Friend says. It is particularly important that sporting champions—who can, perhaps, cut through to parts of society that will not listen to speeches by politicians—set an example in the way the England players did.
Emma Reynolds (Wolverhampton North East) (Lab)
The trial and ongoing detention of Yulia Tymoshenko has widely been denounced as politically motivated. Further to the question asked by my hon. Friend the Member for Erith and Thamesmead (Teresa Pearce), why do the Government appear still to take the position that human rights do not matter at the knockout stages of the European championships? Is it because they do not have confidence in their own policy, or because they do not have confidence in our team?
Mr Lidington
I am afraid the hon. Lady must have written her question before she listened to my answer to her hon. Friend the Member for Erith and Thamesmead (Teresa Pearce). We have made it clear in every conversation at official and ministerial level with our Ukrainian counterparts that if they want to have the democratic future and the closer links with Europe that the Ukrainian Government say they want—and that we believe need to happen—they have to show they are serious about democratic, as well as economic, reform.
Valerie Vaz (Walsall South) (Lab)
T1. If he will make a statement on his departmental responsibilities.
The Secretary of State for Foreign and Commonwealth Affairs (Mr William Hague)
Last week I travelled to Pakistan and Afghanistan where I visited our troops in Helmand and participated in the Heart of Asia conference, where I discussed the situation in Syria with Ministers from Russia, China and Turkey. This week I will meet the Foreign Ministers of the Gulf Co-operation Council, and the Government will host the visit of Daw Aung San Suu Kyi.
Valerie Vaz
I thank the Foreign Secretary for his answer. Will he join me in wishing Aung San Suu Kyi a happy birthday? She is the embodiment of peace and reconciliation. Does he agree with me that the controversial constitution of 2008 still puts the defence services at the heart of the Burmese Government? Will he assure Daw Aung San Suu Kyi and the people of Burma that we will walk alongside them in their long walk to peace and reconciliation?
Mr Hague
Absolutely, and I am grateful to the hon. Lady for her question. I think that the whole country will wish Aung San Suu Kyi well and will be delighted to see her this week. I am delighted that at your invitation, Mr Speaker, and that of the other place she will be coming to address us here in Parliament. It is important to recognise that there is still a long way to go in Burma. Although her party has won the 40 recent by-elections, that represents only a small part of the Parliament. I do believe that the President of Burma is sincere in his intentions, but there will be a variety of views about the democratic progress of Burma within the regime, so it is vital for all of us who believe in freedom and democracy across the world to work with Daw Aung San Suu Kyi over the coming months and years.
Charlotte Leslie (Bristol North West) (Con)
I think I actually had Question 9, so my apologies for standing up inadvertently.
Mr Speaker
No, it was not that the hon. Lady was standing up inadvertently. It is that I am calling her to stand up advertently, on the basis that I alternate between the two sides of the House. Her opportunity is now and the nation wishes to hear her.
Charlotte Leslie
T9. Thank you very much, Mr Speaker. In the midst of difficult, apprehensive and gloomy times in the eurozone, what measures are the Government taking to ensure that we are engaging as proactively as possible with exciting emerging markets in sub-Saharan Africa, particularly Mozambique?
The Parliamentary Under-Secretary of State for Foreign and Commonwealth Affairs (Mr Henry Bellingham)
It was well worth waiting for that question, Mr Speaker. I can tell my hon. Friend that the FCO and UK Trade and Investment are actively supporting UK businesses throughout southern Africa, including in South Africa and Mozambique. Indeed, recent successes have included assisting Aggreko to secure a $255 million deal to construct a power plant that will supply electricity to both South Africa and Mozambique. That is a big success story.
Jeremy Corbyn (Islington North) (Lab)
T2. Will the Foreign Secretary explain exactly what the Government’s policy is towards the Democratic Republic of the Congo? Very controversial elections were held there last year, which were heavily criticised by the Carter Centre, the European Union and the Churches in the Congo. A great deal of military incursion is occurring, particularly in the east; the treatment of women there is appalling; and huge profits are being made by mining companies. We would be grateful if the House could be told exactly what the British Government’s strategy is in that situation.
Mr Bellingham
The EU observers’ report found that the vast majority of people in the DRC were able to vote in relative peace and security, although I entirely accept that there were irregularities in that election. Looking forward, we are very concerned about what is happening in the Kivus, in the eastern DRC. It is essential that the situation there does not deteriorate further, and we urge all parties, including surrounding states, not to use proxies and to stay out of the situation. We urge all sides to work for peace in that troubled region.
Jo Swinson (East Dunbartonshire) (LD)
T10. Credit is due to both the previous Labour Government and this coalition Government for the UK’s global leadership on the arms trade treaty. Vital economic issues are being discussed at the G20 meeting this week, but will the Foreign Secretary tell the House whether the Prime Minister will also use the opportunity to lobby other world leaders in advance of next month’s arms trade conference, so that we can get a robust, comprehensive and effective arms trade treaty to save millions of lives?
The Parliamentary Under-Secretary of State for Foreign and Commonwealth Affairs (Alistair Burt)
Yes. We do indeed regard a robust and effective arms trade treaty as absolutely vital. We have continued the work done by the previous Government. There is a strong degree of consensus on this, but it is important that the treaty is both robust and effective. Negotiations are due to start on the final leg of this in July, in New York, and Ministers will be keeping a close eye on it.
Ian Lucas (Wrexham) (Lab)
In Egypt, as we speak, the army appears to be working to frustrate the outcome of the democratic election that took place at the weekend. What action are the UK Government taking to support the people of Egypt who voted in that election?
Mr Hague
We welcome the peaceful conduct of the second and final round of Egypt’s presidential elections, but this is a critical moment in the move towards democratic, civilian-led government in Egypt. We are concerned by recent announcements of the dissolution of Parliament and the reintroduction of powers of arrest and detention for the military. We want the process of drafting a new, inclusive constitution and the holding of new parliamentary elections to be taken forward as soon as possible and the Under-Secretary of State for Foreign and Commonwealth Affairs, my hon. Friend the Member for North East Bedfordshire (Alistair Burt), has today been making those representations to Egyptian Ministers.
Bob Stewart (Beckenham) (Con)
I absolutely agree with the Foreign Secretary when he says that there are similarities between what is happening in Syria now and what happened in Bosnia in the 1990s. I also note that he mentioned “robust action”. If we take any robust action that involves our servicemen, may I ask the Foreign Secretary to ensure that it includes robust rules of engagement so that our servicemen, if by chance they were ever deployed in that dreadful country, would have sufficient means to defend themselves properly?
Mr Hague
My hon. Friend speaks with a great deal of experience and I certainly take that point and agree with it. Should we come to that eventuality, we will try to do that. Having heard our earlier exchanges, he will be conscious that our efforts are devoted to a peaceful political transition in Syria and to a cessation of violence. At no stage have we advocated a military intervention, but we recognise that the situation is so grave and deteriorating so quickly, and that such crimes are being committed, that we cannot take any options off the table at the moment.
Nic Dakin (Scunthorpe) (Lab)
T3. I draw attention to my entry in the Register of Members’ Financial Interests. Two Nobel peace laureates are in the United Kingdom today: Aung San Suu Kyi and His Holiness the Dalai Lama. Will the Secretary of State take this opportunity to update the House and the country on what steps the Government are taking to work with those Nobel laureates and the authorities in Burma and Tibet to address ongoing human rights issues?
Mr Hague
I mentioned a few moments ago our support for democratic change and human rights in Burma, including the resolving of the conflicts that continue, such as that in Kachin state. Ethnic conflicts have continued although there is a ceasefire in place in many of them. All that work will continue. We have a regular and formal human rights dialogue with China. As the hon. Gentleman knows, we, like the previous Government, recognise Tibet as part of the People’s Republic of China—let there be no mistake about that—but we certainly speak up for human rights in China, as we have done regularly and will continue to do.
Anna Soubry (Broxtowe) (Con)
Gambian national General Omar Mbye is married to my constituent Deborah Burns and today appears in the Gambian Supreme Court to appeal a conviction for treason and a sentence of death. Will the Minister assure me that the Foreign Office is doing all it can to ensure that justice prevails in the Gambia, particularly in this case, and to ensure that this man is not executed?
Mr Bellingham
General O. B. Mbye and seven other defendants were charged with and convicted of treason and sentenced to death. Their case comes up in the Supreme Court in Gambia today and I understand the general is married to a British citizen who is a constituent of my hon. Friend’s, so obviously we are following the case closely and will provide her constituent with all possible consular and other assistance. On a wider note, we have growing concerns about President Jammeh’s Government and his attitude to the Opposition and to human rights, as well as the way he is discriminating against minorities.
Teresa Pearce (Erith and Thamesmead) (Lab)
T4. One of my constituents, a UK resident for 40 years, and 16 members of her family have inherited land in southern Cyprus. In order to dispose of the land, the Greek high commission has insisted that she prove UK residence for the past 38 years. She has provided passports and medical records and has now been asked to produce utility bills from 1974, a nigh on impossible task. Will the Minister or his officials communicate with the Greek high commission to find a way forward for that family?
The Minister for Europe (Mr David Lidington)
If the hon. Lady speaks to me later, I will see whether there is anything further we can do to assist.
Duncan Hames (Chippenham) (LD)
As Daw Aung San Suu Kyi reminded us in her speech from Oslo last week, while we celebrate her freedom there remain many prisoners of conscience in Burma. Will the Foreign Secretary urge the Government there to establish a review of the cases of all prisoners so that it is possible to determine the actual reason for their arrest?
Mr Hague
Absolutely. I have discussed this issue regularly with the Burmese authorities including with the President of Burma directly. I was pleased that in January there was such a large-scale further release of political prisoners in Burma, but the hon. Gentleman is quite right to say that some remain. In many cases, the Government of Burma allege that there is a responsibility for a violent crime or particular crime—not just the holding of a political opinion. That means that these cases have to be gone through and resolved individually. We will certainly encourage the Government of Burma to do that.
Mr Speaker
Order. I am keen to accommodate colleagues. The evidence so far is that we have time for the questions but not always for the answers. We need short questions and short answers.
Mrs Linda Riordan (Halifax) (Lab/Co-op)
T5. Is the Minister aware that following the blockade of Gaza, the Gazans suffer an acute shortage of drinking water, with 90% of the water being contaminated and 90 million litres of untreated or partially treated sewage being dumped in the sea every day? Will he now tell the Israelis that this is a cruel and illegal way to treat Gazans?
Alistair Burt
The situation in Gaza has long been of concern to the UK Government, and representations are made to the Israeli authorities regarding their responsibilities there. Things have gradually been improving in respect of trade in Gaza. but this issue is bound up in the longer-running and larger dispute between Israel and the Palestinians regarding the middle east peace process. The concerns that the hon. Lady raises have been raised by the UK Government and we will continue to raise them.
Caroline Dinenage (Gosport) (Con)
Gosport-based Royal Navy sailor Timmy MacColl went missing in Dubai on 27 May. His pregnant wife and the rest of his family and friends are clearly very worried about his whereabouts. Will the Minister please reassure me that the Foreign and Commonwealth Office is doing all it can to bring him home safely?
Alistair Burt
Yes. I thank my hon. Friend for raising this case. Our consular teams in the Foreign and Commonwealth Office and in Dubai are aware of this case and we have met representatives of the family. It is a distressing and puzzling case and we are giving as much assistance as we can, along with other agencies, to the investigation.
Karl Turner (Kingston upon Hull East) (Lab)
T6. Last week, a Conservative Member of this House expressed huge admiration for General Pinochet. Given that General Pinochet sanctioned sadistic torture against innocent men, women and children, will the Foreign Secretary condemn his colleague’s comments?
Mr Hague
I am not aware of the particular comments, but the hon. Gentleman can rest assured that the Government support a strong, democratic, free and open future for Chile, and our relations with the Government of Chile are excellent on that basis. Looking to the future, there is no doubt about where we stand.
Mr John Redwood (Wokingham) (Con)
Will the Government seek a new and less intrusive arrangement with the European Union as many member states press on to a political union and centralised government that we could not conceivably join?
Mr Lidington
We want to see the eurozone restore economic stability. That is in the interests of the United Kingdom as much as any other European country. The Prime Minister is demonstrating, through his leadership on the agenda to do with growth, deregulation and trade, that the UK continues to shape the direction of the European Union in a way that serves the prosperity and security of the people of this nation.
Julie Hilling (Bolton West) (Lab)
T7. Further to the Minister’s answer to my hon. Friend the Member for Halifax (Mrs Riordan), is he aware that the Israelis allowed only three lorry loads of exports through the Kerem Shalom crossing in the weekend of 5 June, compared with an average of 240 truck loads a week before the blockade? That is why factories are standing idle and why a third of the population is unemployed. Will the Minister tell the Israeli Government that the blockade is not only inhumane but totally counter-productive?
Alistair Burt
Briefly, yes. The hon. Lady’s makes a comparison between what goes through now and what went through before the blockade, and we make exactly the same point. It is more than went through last year, but that is not good enough. It is in the interests of Israel and the people of Gaza and beyond that the economic prospects of the people of Gaza improve. Israel can play its part in that and we urge it to continue to do so, just as we encourage those in Gaza not to launch attacks on Israel.
Mr James Clappison (Hertsmere) (Con)
The Prime Minister has rightly set his face against the EU’s proposal for an unjustified 6% increase in its budget. Will the Minister take this opportunity to express his opposition to the External Action Service’s claim for a 5.7% increase in its budget and qualify the motion that appears on the Order Paper today?
Mr Lidington
When that motion was debated and agreed without a Division at yesterday’s European Committee, I made it very clear that we were opposed to an increase in the External Action Service’s budget, and that we expected the EAS to live up to the terms of the decision establishing it, which said that it had a responsibility to secure value for money and to return to budget neutrality.
Paul Flynn (Newport West) (Lab)
T8. As a greater number of American veterans of the Afghan war commit suicide than die in combat, and as uncounted thousands of our own troops return, broken in body and mind, should we not follow the example of Canada, Holland, France and Australia and bring our troops home at an earlier date than planned?
Mr Hague
It is also important to remember the immense achievements of our troops in Afghanistan, who have helped to bring stability to areas of Afghanistan that would not otherwise have known it, and who have done so much to reduce the terrorism threat to this country and many others, and it is very important for that job to be completed, as we intend it to be, by the end of 2014. It is important to remember the achievements of our troops, and not just the problems that they encounter.
Mr Speaker
Order. The hon. Gentleman is a very experienced denizen of the House. He will know that points of order follow statements, and the hon. Gentleman’s point of order is one that we await with eager anticipation.
Development of Greenfield Land (Irchester, Northamptonshire)
Mr Peter Bone (Wellingborough) (Con)
I rise to present a petition signed by 2,012 people from the village of Irchester—half its male population. It concerns development outside the village boundary to which all three political parties were opposed before the last local elections. The leading signatories are Mr Chris Stening, Mr Tony Skipper and Mr Richard Webb.
The petition states:
The Humble Petition of residents of Irchester, Wellingborough, Northamptonshire and the surrounding areas,
Sheweth, that any proposed residential development on Green Field sites, outside the village boundary policy line, would put a great strain on Irchester’s infrastructure and have a huge damaging impact on the local environment.
Wherefore your Petitioners pray that your Honourable House requests the Secretary of State for Communities and Local Government to urge the Northamptonshire County Council, the Borough Council of Wellingborough and the Parish Council of Irchester to ensure that no such development takes place.
And your Petitioners, as in duty bound, will ever pray, etc.
[P001098]
Change of School Name (Hemmingwell, Northamptonshire)
Mr Peter Bone (Wellingborough) (Con)
I have a petition from a grass-roots organisation that has grown up, concerning the change of name of an important school in my area. Its leading signatories are Emma Davies, Serena James and Julie Burgess.
The petition states:
The Humble Petition of residents of Hemmingwell, Wellingborough, Northamptonshire and the surrounding areas,
Sheweth, that the proposed change of name of the Oakway schools in Hemmingwell and the additional cost in changing the school uniform are both unnecessary and costly and that the schools in Oakway are well established and the name is well known.
Wherefore your Petitioners pray that your Honourable House urges the Secretary of State for Education to urge the Northamptonshire County Council and the Board of Governors at the Oakway schools to work together to ensure that any merged school will be named Oakway Primary School
And your Petitioners, as in duty bound, will ever pray, etc.
[P001099]
Civil Service Reform
(12 years ago)
Commons ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Minister for the Cabinet Office and Paymaster General (Mr Francis Maude)
With permission, Mr Speaker, I would like to make a statement about the civil service.
The British civil service plays a crucial role in modern British life. It is there to implement the policies of the Government of the day, whatever their political complexion. Its permanence and political impartiality enable exceptionally rapid transitions between Governments. Most civil servants are dedicated and hard-working, with a deep-seated public service ethos. Like all organisations, the civil service needs continuous improvement, and I want today to set out the first stage in a programme of practical actions for reform.
In 2010 we inherited one of the largest budget deficits in the developed world, and despite success in improving Britain’s financial standing, we still face significant financial and economic challenges, as well as rapid social, technological and demographic changes. The Government have embarked upon a programme of radical reform of public services to improve quality and responsiveness for users and value for the taxpayer. We need a civil service that is faster, more flexible, more innovative and more accountable in order to succeed. Our civil service is smaller today than at any time since the second world war, and this has highlighted where there are weaknesses and strengthened the need to tackle the weaknesses.
We need to build capabilities and skills where they are missing. We need to embrace new ways of delivering services. We need to be digital by default. We need to tie policy and implementation seamlessly together. We need greater accountability, and to require much better data and management information to drive decisions more closely. We need to transform performance management and career development.
Today, Sir Bob Kerslake, the head of the civil service, and I are publishing a civil service reform plan that clearly sets out a series of specific, practical actions to address long-standing weaknesses and build on existing strengths. Taken together, and properly implemented, those actions will deliver real change. They should be seen as a first step in a programme of continuing reform for the civil service. This is not an attack on the civil service, and civil servants have not been rigidly resistant to change, but the demand for change does not come just from the public and from Ministers—it comes from civil servants themselves, many of whom are deeply frustrated by a culture that is overly bureaucratic, hierarchical and focused on process, rather than outcomes.
That was revealed in the responses to our “Tell Us How” website, aimed at getting fresh ideas from staff about how they could do their jobs better. Civil servants themselves bemoaned a risk-averse culture, rampant grade-ism, and poor performance management. The action plan is based heavily on feedback from civil servants themselves, drawing on what frustrates and motivates them, while many of the most substantive ideas in the paper have come out of work led by permanent secretaries. Reform of the civil service never works if it feels like it is being imposed on civil servants by Ministers, but neither would it succeed if the civil service were simply left to reform itself. Because we want this to be change that lasts, we have discussed the proposals widely, including with Ministers of the previous Government, to draw on their experiences and ideas.
The civil service of the future will be smaller, pacier, flatter, more digital, more accountable for effective implementation, more capable, with better data and management information, and more unified, consistent and corporate. It must also be more satisfying to work for. These actions must help to achieve that. Under published plans, the civil service will shrink from around 500,000 in 2010 to around 380,000 by 2015—it is already the smallest it has been since the second world war. Sharing services between Departments will become the norm. That has been discussed for years; it is now time to make it happen.
Productivity also needs to improve. For too long, public sector productivity was at best static, while in the private services sector it improved over the same period by nearly 30%. Consumer expectations are rising and, as we have been told, there is no money. The public increasingly expect to be able to access services quickly, conveniently and in ways that suit them. We are conducting a review with Departments to decide which transactional and operational services can be delivered through alternative models. Services that can be delivered online should be delivered only online. Digital by default will become a reality, not just a buzz phrase.
We should no longer be the prisoner of the old binary choice between monolithic in-house provision and full-scale privatisation. We are now pursuing new models: joint ventures, employee-owned mutuals and new partnerships with the private sector. MyCSP, which manages the civil service pension scheme, became the first joint-venture mutual to spin out of Government recently, and it provides a model for future reforms.
The civil service culture can be slow moving, hierarchical and focused on process rather than outcomes. Changing that would be really hard in any organisation. We can make a start by cutting the number of management layers. There should only exceptionally be more than eight layers between the top and the front line, and frequently many fewer. That will help to speed up decisions and empower those at more junior levels. Better performance management needs to change the emphasis in appraisals emphatically towards delivery outcomes and reward sensible initiative and innovation.
We also need to sharpen accountability, which is closely linked to more effective delivery. Management information in Government is poor, as the National Audit Office, the Public Accounts Committee, the Institute for Government and departmental non-executive board members have vigorously and repeatedly pointed out. Therefore, by October this year we will put in place a robust and consistent cross-Government management information system that will enable Departments to be held to account by their boards, Parliament, the public and the centre of Government.
We will also make clearer the responsibilities of accounting officers for delivering major projects and programmes, including the expectation that former accounting officers can be called back to give evidence to the PAC. The current arrangements whereby Ministers answer to Parliament for the performance of their Departments and the implementation of their policy priorities will not change but, given their direct accountability to Parliament, we believe that they should have a stronger role in the recruitment of permanent secretaries.
We will therefore consult the Civil Service Commission on how to strengthen the role of the Secretary of State in the recruitment process for permanent secretaries. The current system allows the selection panel to submit only a single name to the Secretary of State. At other levels, appointments will normally be made from within the permanent civil service or by open recruitment but, where the expertise does not exist in the Department and it is not practicable to run a full open competition, we are making it clear that, as now, Ministers can ask their permanent secretaries to appoint a limited number of senior officials for specified and time-limited executive/management roles.
By common agreement, both inside and outside the civil service, there are some serious deficiencies in capability. Staff consistently say in surveys that their managers are not strong enough in leading and managing change. In future, many more civil servants will need commercial and contracting skills as services move further towards the commissioning model. While finance departments have significantly improved their capabilities, many more civil servants need a higher level of financial knowledge. As set out elsewhere in the plan, the civil service needs to improve its policy skills and fill the serious gaps in digital and project management capability.
By autumn we will have for the first time ever a cross-civil service capabilities plan that identifies which skills are missing and sets out how those gaps will be filled. Staff consistently say in surveys that their managers are not strong enough in leading and managing change, so, for the first time, leadership and potential leadership talent will be developed and deployed corporately.
As long ago as 1968, the Fulton commission identified that policy skills in the civil service were consistently rated more highly than operational delivery. That is still the case today. We will establish, therefore, the expectation that permanent secretaries appointed to the main delivery Departments will have had at least two years’ experience in a commercial or operational role, and we will move over time towards a position in which there is a more equal balance between those departmental permanent secretaries who have had a career primarily in operational management and those whose career has primarily been in policy advice and development.
A frequent complaint of civil servants themselves concerns performance management. They feel that exceptional performance is too often ignored and poor performance is not rigorously addressed. In future, performance management will be strengthened by a senior civil service appraisal system that identifies the top 25%, and the bottom 10%, who will need to show real improvement if they are to remain in the service. Departments are already introducing similar appraisal systems for grades below the senior civil service.
The Government are committed to ensuring that the civil service will be a good, modern employer and continue to be among the best employers in the country. Departments will undertake a review of terms and conditions to identify those that go beyond what a good, modern employer would provide. We will also ensure—again, meeting a consistent concern of civil servants—that staff get the IT and security arrangements that they have been asking for, so that they can do their jobs properly. That is a part of doing what is necessary to make civil service jobs more satisfying.
Another key goal is to improve and open up policy making so that there is a clear focus on designing policies that can be implemented in practice. Too often in the past policy has come from a narrow range of views, but Whitehall does not have a monopoly on policy-making expertise, and in future open policy making will become the default and we will create a small central fund to pilot policy development commissioned from outside Whitehall.
I repeat that this plan is just the first stage in a programme of reform and continuous improvement. It responds to concerns expressed by Parliament, by Ministers and former Ministers and, most importantly, by civil servants themselves. None of the actions in the plan is in itself dramatic, and none will matter unless it is properly implemented, but together, when implemented, they will represent real change.
I will oversee the implementation of the plan, and, as the paper sets out, Sir Bob Kerslake, as head of the civil service, and Sir Jeremy Heywood, the Cabinet Secretary, will be accountable for its delivery through the cadre of permanent secretaries.
Change is essential if the civil service is to meet the challenges of a fast-changing world. I commend the plan to the House.
Jon Trickett (Hemsworth) (Lab)
I thank the Minister for his courtesy in providing me with an advance copy of the plan, and for taking some time to explain his thinking.
The British civil service is widely admired, and rightly so, for its core values of honesty, impartiality and professionalism, and that is why it is so worrying that in the past two years the Minister has presided over chaotic change, which has seen a collapse in morale and more than one in three of the most senior civil servants leaving voluntarily. We, in contrast, sought radical but incremental change in the service.
On accountability, management culture and increased flexibility, there is always more to do, and we will support and, indeed, welcome sensible reforms such as improving management culture, information systems and skills development. We especially welcome the drive to digitise. It is essential to promote this process so that we obtain the highest possible levels of productivity from all staff. How does the Minister see digitisation proceeding?
In an era of flexible networks, the civil service can be seen as over-hierarchical and bureaucratic, as well as operating within self-contained departmental silos. Will the Minister indicate his intentions in reducing hierarchy and bureaucracy? The civil service has often been criticised in relation to procurement, IT, the management of change, and project management. What plans does he have to improve performance in all those areas?
I note the Minister’s suggestion that there should be interaction between the civil service and the private sector, but will he confirm that he is not making a presumption that private sector experience is somehow superior to the service of the public within the public sector ethos? We welcome the increased accountability of the civil service to Parliament and his comments on the Public Accounts Committee. On public sector mutuals, will he ensure that more information is placed before the House on this matter in due course?
The Minister has proposed that the performance of the worst 10% of civil servants be addressed. What consultation has he had on that proposal, and when does he intend it to be introduced? Of course, we welcome the drive to improve the standards of management in the public service, but is there not a danger that he and his colleagues may indulge in a blame game? After all, the problems that his Government face result from the failure of Ministers, not of the civil service. In identifying the worst-performing public servants, perhaps he might consider the proposal that he name and shame the poorest Ministers; I can see one of them talking to him on the Front Bench now. Perhaps he does not need to, though, because the court of public opinion has already rendered its verdict, at least in relation to the Secretary of State for Health. Given the double-dip recession, does he agree that at least the Chancellor of the Exchequer should now be placed in special measures?
Has the Minister done any U-turn on regional pay? Will he confirm that while there is nothing wrong with sensible local bargaining of the kind that we did when we were in office, we live in a single United Kingdom and the suggestion of large-scale regionalising of pay is divisive and should now be dropped?
The Minister has said that he intends further to reduce the size of the civil service and that the Government would cut back-office staff and not front-line services. Staff reductions on the scale that he has announced cannot possibly be easily developed. We are not talking about simple numbers on a page but real human beings facing redundancy at a time of high unemployment. These people have chosen to serve the public. How does he intend to deal with the human consequences of his decisions, and will he be engaging with the trade unions and other staff representatives in this process? His staffing estimates must be based on detailed risk impact assessments. For example, will the country be left vulnerable as a result of further cuts at the UK Border Agency, in the police service, or elsewhere? Will he agree to place in the Library copies of all departmental risk impact assessments of staff reductions?
On the sensitive area of the relationship between Ministers and civil servants, I have two concerns. The Minister proposes to formalise the process of seeking policy advice from outside agencies, and he intends that Ministers play a larger role in appointing permanent secretaries. We welcome careful progress on both those suggestions, but equally, is there not a danger that they might lead to cronyism and a dangerous politicisation of the civil service? What assurances will he give to the House that in engaging in the appointment of civil servants and in selecting external agencies providing policy advice, neither of those matters will fall into disrepute because of ideological, or even personal, favouritism by particular Ministers?
We welcome the positive proposals in the plan, but it will do little to correct the chaos that now exists in many Departments. After all, the point of reform is to make things better than they were before.
Mr Maude
I am grateful for the shadow Minister’s welcome for much of what we have said, although I regret the tone of some of his contribution.
On the hon. Gentleman’s last point about potential politicisation, we are very concerned that that should not happen. Any proposals about the involvement of Ministers in appointments, which has operated in various ways for a long time, must be regulated properly by the Civil Service Commission, whose task it is to ensure that there is no taint of cronyism or favouritism. There have been many suggestions, particularly in the time of the previous Government, that cronyism has been a feature of the way in which Governments operate. Because of that, the Civil Service Commission is particularly concerned to ensure that any changes are made extremely carefully. I and my colleagues strongly support that.
I have not announced any further reductions in the size of the civil service. The figure of 380,000, which is the consequence of the plans that Departments already have, is already out there. The reductions are obviously taking place in a planned and considered way by Departments, and they are alert to the need for front-line services to be protected wherever possible.
The hon. Gentleman mentioned issues of morale in the civil service. However, the people survey, which is a consistent survey across the whole civil service that is done every year—a welcome innovation by Lord O’Donnell under the previous Government—suggests that morale has remained remarkably stable at a time of uncertainty, a pay freeze, the reform of pension schemes and significant downsizing. Turnover, as measured by resignations from the civil service, has also remained stable. There is obviously a reduction in the size of the senior civil service, but that is simply a consequence of the overall reductions in size across the civil service.
I am grateful for the hon. Gentleman’s support for our plans for digitisation. That will not always be without controversy, but it is important. The Government lag behind most providers in making services available to consumers online. Too many online Government services fail, meaning that the non-digital delivery of transactions by post, phone or physical contact has to be retained. That is much more expensive and a lot less convenient for the user. It is important to tackle that problem. He will be aware of the invaluable review that was done by Martha Lane Fox 18 months ago, on which we are drawing heavily to drive our plans forward with urgency.
I accept the hon. Gentleman’s point about interaction with the private sector. I do not make the assumption that the answer to every problem in the civil service is to bring in people from the private sector. In fact, much more needs to be done to equip existing civil servants with skills. That is where interaction is so important. The culture in the civil service needs to feel much more recognisable to people from the private sector, so that when there is interaction, they do not feel like they have stepped on to a different planet. We believe that enhanced interaction will contribute to that.
The only moves that there have been towards regional pay were made under the previous Government, when the Ministry of Justice introduced a degree of regional pay. No final decisions have been made on the matter and we will not proceed without good evidence and a strong rationale for doing so.
Finally, the hon. Gentleman’s response reflected the widespread consensus that there is a need for change. Our proposing change which responds very much to concerns within the civil service does not mean that we think that the fundamental model is wrong. Arguments are made for a more American approach, but one would lose many important benefits such as the institutional knowledge, continuity and ease of transition through that approach. We have therefore worked within the constraints of the model as it is, but much can be done within those constraints. None of the changes need be massively controversial or dramatic, but together they will make a real difference to the way in which the country is governed.
Mr Bernard Jenkin (Harwich and North Essex) (Con)
I thank my right hon. Friend for publishing a civil service reform plan, which will prove to be the comprehensive cross-departmental change programme that the Public Administration Committee has long been calling for. Will he engage all his fellow Ministers to ensure that they lead the programme alongside permanent secretaries? Without effective leadership, no change programme will succeed. Finally, will he reaffirm that the civil service must remain one of our great institutions and a force for the stability of government, our constitution and our nation?
Mr Maude
I am grateful to my hon. Friend, who has been urging me to publish a civil service reform plan for some time. I have said many times that I am keener on civil service reform than I am on civil service reform plans, but we have set out the plan and what we aim to achieve. It will require concerted political leadership, and there must be no hiding place. The political leadership of the Government and wide consensus across the party divide, which I think there is, together with the leadership of the civil service, will provide the best chance of implementing the plan successfully. I completely accept his point that the civil service is an important component of our stability, but we need to ensure that stability does not equate to a lack of any movement.
Mr Jack Straw (Blackburn) (Lab)
I welcome the substance of what the Minister said and the bipartisan tone in which he put it. In particular, may I welcome his proposals for greater involvement by Secretaries of State in the appointment of their permanent secretaries? I say by way of confession that, although I am not sure what the rules were at the time, in each of the three permanent secretary appointments that I made—in the Home Office, the Foreign Office and the Ministry of Justice—I insisted that there was a shortlist of at least three candidates from which I should choose. There was not the least allegation that I had acted in a partisan or cronyist way. The point that I made to those Departments was that if I was to take responsibility for the whole Department and for the work of that permanent secretary, I needed to have some confidence in the individual at the official top of the organisation.
Mr Maude
I am extremely grateful to the right hon. Gentleman for his point of view, which I think most people who have been Ministers would recognise and respect. As Ministers we come to the House of Commons and, more or less cheerfully, take responsibility and are held accountable, sometimes in very robust terms, for what our Departments deliver and how they perform. The relationship between a permanent secretary and a Secretary of State is the most important one in a Department, and it is not reasonable for a Secretary of State to feel that he or she has no real choice in the appointment of that permanent secretary.
Mr Mark Williams (Ceredigion) (LD)
Will the Minister reiterate that one of the great strengths of the reform agenda that he has put forward today is that it responds to the demands of ordinary civil servants themselves? History shows that if the Cabinet Office acts in isolation, the project is doomed to failure. We require much wider leadership of the reform agenda, right across the civil service.
Mr Maude
My hon. Friend makes the point very well that it would not work if we tried to impose reform that went against the grain of the hard-working majority of civil servants, who come to work to do a good job and serve their fellow citizens, and who want to go home at the end of the day feeling that they have been able to make a difference. The plan would not have a chance of being successfully implemented. We need to call on the leadership of the civil service, but also on those throughout the civil service who see a need for change and want to be part of it.
John McDonnell (Hayes and Harlington) (Lab)
It is opportune that the Public and Commercial Services Union parliamentary reception is taking place at the moment, to which all Members, including the Minister, are invited. That union represents staff who have had job cuts, privatisation, pay cuts and pay freezes and who have had their pensions undermined. They have even had their redundancy payments cut. Will he call in and explain to those staff what is meant by “Departments will undertake a review of terms and conditions to identify those that go beyond what a good…employer would provide”? Does that mean that there will be more cuts to job security, maternity cover, paternity leave or sick pay? Will he explain precisely what it means?
Mr Maude
Depending on how long this statement goes on, I would be delighted to call in to the PCS reception and renew old acquaintances and friendships.
To which terms and conditions does the statement refer? Civil servants hate it when outlandish and archaic terms and conditions, many of which they will not have known exist, get picked up by the media and lampooned. Such terms and conditions enable the media to project civil servants—quite unfairly—as feather-bedded and pampered, which is demoralising for them. We want the civil service to be a good, modern employer, and among the best employers, but that means that such outlying terms and conditions, which are hard to defend in the modern world, must be addressed. They include, for example, the fact that as soon as people become civil servants, they are entitled to six months’ full sick pay. That is out of kilter with anything that exists in the wider public sector or the private sector. That sort of thing will need, over time, to be addressed.
Mr Speaker
Order. I cannot at this point say how long the statement and exchanges will last, but the reception might conceivably—I know not—even be extended if its organisers anticipate that they are to be blessed with a visit from a ministerial celebrity.
Mr Douglas Carswell (Clacton) (Con)
I welcome the Minister’s talk of sharpening accountability and of better accountability upwards to departmental boards. He even talks of giving Secretaries of State more of a say on appointments. Why has he not considered enhancing accountability to the Select Committees of the House? Surely without that change, the mandarin is not truly outwardly accountable to the public.
Mr Maude
I completely understand my hon. Friend’s point. He will know that the right hon. Member for Barking (Margaret Hodge), the Chair of the Public Accounts Committee, who is away on Committee business at the moment, strongly takes that view. The Government have not opined on that suggestion at this stage, because the House of Lords Constitution Committee is conducting an inquiry into exactly that issue and we do not want to pre-empt its deliberations. My hon. Friend’s point, however, is a powerful one.
Dr William McCrea (South Antrim) (DUP)
In his statement, the Minister said that the “demand for change…comes from civil servants themselves”, and yet went on to say that changing the civil service culture would be “really hard”. There seems to be a contradiction in that. Can we be sure that the reorganisation of the civil service is in the interests of service to the community, and not simply a cost-saving exercise?
Mr Maude
We need to save costs—that almost goes without saying—and every Department is working under a severe financial constraint, one consequence of which is the significant reduction in the size of the civil service, to which I have referred. The proposals are about ensuring that, in such circumstances, when there is a smaller civil service and less money around, citizens can be served and receive public services of a good standard, and in many cases we hope a better standard than they currently receive.
Mr Speaker
Order. The hon. Member for Sevenoaks (Michael Fallon) has an intriguing approach to indicating his desire to be called—he raises his eyebrows in a very pointed fashion—but I can assure him that I was going to call him anyway.
Michael Fallon (Sevenoaks) (Con)
Is it fair that businesses outside London and the south-east must compete for staff against public offices whose pay and conditions are set nationally? If local pay works so well and flexibly for the Courts Service, why would we be squeamish about extending it?
Mr Maude
At the risk of my hon. Friend’s eyebrows going into overdrive, may I say that no final decisions have been made? He makes the argument. We have invited the pay review bodies to look at that proposal but no decision will be made until the evidence has been properly examined and the existence or otherwise of a strong rationale has been established.
Ms Gisela Stuart (Birmingham, Edgbaston) (Lab)
I would like to return to the issue of accounting officers being recalled to Select Committees. In his statement, the Minister referred only to the Public Accounts Committee. May I urge him to consider other Committees, such as the Defence Committee, given that procurement decisions can cover 10, 15 or 20 years? Will he consider not only making that clearer, as he said in his statement, but making it a duty?
Mr Maude
For the PAC, it is becoming the practice that, in the right circumstances, former accounting officers can be called back. I hear what the hon. Lady says; it is a powerful case. Actually, I would not find it objectionable if former Ministers were called back to Select Committees to talk about decisions they were involved with in a previous life. I see the right hon. Member for Blackburn (Mr Straw), the former Lord Chancellor, nodding assent, which is courageous of him.
Mr Edward Leigh (Gainsborough) (Con)
As my right hon. Friend said, as long ago as 1968 the Fulton commission identified that policy skills were consistently rated more highly than operational delivery. Forty years later, during my time on the PAC, we found out that not a single permanent secretary had ever run a project. After all these reviews, will he really achieve where everybody else has failed, and get fewer permanent secretaries who have an Oxbridge degree in Latin, can write a beautiful minute and are charming, and actually get people who can run a project and be on the right pay scale for it?
Mr Maude
I hope that my hon. Friend, who stewarded the PAC with such distinction and speaks with great authority on this subject, would recognise that the appointment as head of the civil service of Sir Bob Kerslake, who has a formidable history of operational delivery in local government and running big local authorities, is a step in the right direction. If my hon. Friend looks across the piece, he will see that there are more, but not yet nearly enough, permanent secretaries with a background in operational delivery. We need to go further, however.
Keith Vaz (Leicester East) (Lab)
On 23 May, in answer to my question about bonuses, the Prime Minister told the House that there was
“no place in the modern civil service for a presumption of good performance.”—[Official Report, 23 May 2012; Vol. 545, c. 1130.]
Why has the Minister not taken the opportunity, in his excellent paper, to outlaw the culture of bonuses for senior civil servants, especially in failing organisations, such as the UK Border Agency? Giving senior civil servants bonuses of £3.5 million cannot be right.
Mr Maude
Performance pay is always controversial, whether in the public or private sector. The paper suggests that a voluntary earn-back scheme, such as that suggested by Will Hutton in his report on fair pay, might be worth considering. We will invite the Senior Salaries Review Body to consider such a scheme for the senior civil service. Civil servants would be invited to put, say, 5% of their basic pay at risk, so that they have to earn it back, with the possibility of exceeding it with exceptional performance. That would not feel like a one-way bet.
Mr John Redwood (Wokingham) (Con)
How will these reforms enable the civil service to deliver much higher quality and with greater accuracy, given the high error rates typical in areas such as benefit distribution?
Mr Maude
For a start, there needs to be better performance management and much better management information. It is a constant complaint that the quality of data is poor and inconsistent. It is hard to hold Departments and parts of Departments to account when we do not know how well they are performing. I point out to my right hon. Friend that when we turned MyCSP, the organisation that delivers the civil service pension scheme, into a joint venture mutual, its levels of productivity and accuracy, doing difficult processing work, improved markedly as it moved towards the vesting date.
Kelvin Hopkins (Luton North) (Lab)
I hope I am not alone in having a great sense of unease about the greater involvement of Ministers in selecting permanent secretaries. When permanent secretaries have to succumb to ministerial favour, is there not a danger of moving towards a presidential system, with more politicisation, less impartiality and civil servants fearing to speak truth unto power lest their careers not advance? I hope that I am not alone in saying that, and I hope that the Minister has a good answer.
Mr Maude
The answer is that we are absolutely not moving to the presidential-type system. I recommend that the hon. Gentleman talk to his right hon. Friend the Member for Blackburn, who has experience of this. The simple truth is that if a Minister is to be accountable for what their Department does, it is not that unreasonable to suppose that they should have a better degree of choice in selecting the principal instrument for the performance of their Department.
Mr Philip Hollobone (Kettering) (Con)
If local residents in the borough of Kettering phone Kettering borough council, of which I have the honour and privilege of being a member, they speak to a human being who answers the phone within 10 seconds. We ran the British empire with fewer civil servants than we have now, and if Kettering borough council can do that, should not organisations such as the Inland Revenue helpline be told that they have to do the same?
Mr Maude
My hon. Friend makes a powerful case, not just for the merits of Kettering borough council, but for what central Government and the civil service can learn from the best in local government. We make that point in the plan. There is, for example, good experience in local government of local authorities sharing services to a much greater degree than in the past—including, in many cases, sharing chief executives. We have suggested that this is also something that central Government could learn from.
Jonathan Ashworth (Leicester South) (Lab)
I listened with great interest to what the Minister said about opening up policy development work. I note what he said about the Civil Service Commission, but I wonder whether he will expand on it. I am not making a partisan point, but he will recall answering questions recently about suggestions—allegations and so on—that, for example, Mr Peter Cruddas had influence over the No. 10 policy making machinery. If policy making is outsourced to think-tanks, there are bound to be occasions when suggestions are made that outside bodies—donors and so on—have undue influence over those think-tanks, so is the Minister anticipating some sort of regulatory framework? Will he expand a little further on that for us?
Mr Maude
The first thing to say is that this proposal is only a modest move. It will be piloted and reviewed to see what works and what does not. I completely concede the hon. Gentleman’s point that the work needs to be done carefully. It is not, I hasten to add, a recipe for giving more business to consultants—we have massively cut the business that central Government give to consultants—but we think there is scope for commissioning policy development work from academics, for example, which seems to be a fruitful idea that is worth pursuing to see what the benefits are.
Tessa Munt (Wells) (LD)
It is important that those who choose the civil service as a career path should still have a wide experience and keep up to date with the knowledge, skills and experience that will be useful. Has the Minister considered whether the parliamentary term and timetable—our cycle—might offer time for development and training opportunities for those staff, or time for fast-track staff in particular to take paid sabbaticals in industry, commerce and the voluntary and philanthropic sectors, which are at the cutting edge of personnel development?
Mr Maude
That is a valuable point, which we address. Such development is available and possible, but it happens to a much lesser extent than is desirable. Exposure to different worlds and different experiences can enrich the ability of senior civil servants to deliver effectively for citizens.
Valerie Vaz (Walsall South) (Lab)
The Minister referred to a central fund. How much will be in it, and will it come from separate Departments? Will he be using a tendering process, or will he just be appointing one particular person?
Mr Maude
It is a modest fund of £500,000 from the Cabinet Office, to be matched by Departments, if they want to bid to use it. I would not generally expect there to be a single appointment. Under the circumstances, we would want to get different groups in to pitch their ideas for how they would develop the work and so on. However, these are early stages. We want to explore how to do the work effectively, but we think it is worth pursuing.
Stephen Barclay (North East Cambridgeshire) (Con)
Will my right hon. Friend clarify whether he will be publishing the personal objectives of permanent secretaries and the interim project milestones of senior responsible owners? Further to the question that my hon. Friend the Member for Gainsborough (Mr Leigh) asked, given that 70% of civil servants work in operational roles, will he clarify how many permanent secretaries do not have two years’ experience in such roles?
Mr Maude
I do not have the last fact immediately at my fingertips, although it could no doubt be there soon. On my hon. Friend’s first point, yes, we do plan to publish permanent secretary objectives. They ought to be set in a rigorous way through agreement with the Secretary of State, with the lead non-executive on the Department’s board, with the Prime Minister and with the head of the civil service. That needs to be done. We will then publish those objectives, because the public need to be able to see the extent to which they are being met. My hon. Friend also asked about milestones. We are becoming much more open and saying much more about the way in which the major projects are governed, and about their performance, than has ever been the case.
Mark Durkan (Foyle) (SDLP)
As well as suggesting a greater role for Secretaries of State in the recruitment process for permanent secretaries, the right hon. Gentleman referred to Ministers being able to ask permanent secretaries to appoint a limited number of senior officials to time-limited executive or management roles. Has he any plans to circumscribe or, better still, proscribe any involvement, interference, intervention or influence by special advisers in relation to such matters? Does experience not teach us that special advisers should not taste, touch or handle any aspect of such a process?
Mr David Ruffley (Bury St Edmunds) (Con)
I welcome the thrust of the reform, but will the Minister clarify one point? Does he support the idea that a Secretary of State should have the final say in the recruitment of a private sector individual to the post of permanent secretary, provided it is done on a fixed-term, performance-related basis?
Mr Maude
Yes, I do believe that. Obviously, that would need to follow a selection and recruitment process that had been regulated by the Civil Service Commission to ensure that the appointment had been made on merit following fair and open competition, as the law requires. Given that degree of regulation, however, and the assurance that that should give that the individual was an appointable candidate for not only the current Secretary of State but any future ones, there is no obvious reason why that should not happen.
John Healey (Wentworth and Dearne) (Lab)
The Minister said that there was nothing dramatic in his plans. Is it not time for a bigger reform than one that simply involves the appointment of permanent secretaries? Should not a change of Government mean a change at the top of those agencies delivering the most important parts of the new Government’s programme? Perhaps we should consider a system closer to that of the United States, in which Ministers would propose appointments which would then be confirmed or rejected at hearings in this House. Those who were appointed would then, like Ministers, be publicly accountable as well as directly accountable to Parliament.
Mr Maude
I hear what the right hon. Gentleman says. As an experienced former Minister, his views attract respect and deserve careful consideration, but his suggestion would involve a fundamental change to the model that we have in this country. That is not unthinkable, but a deep change would be involved. We believe that our system works really well—or is capable of doing so—and that we can make these changes within the current model to deliver real change. We can also get on with that quite quickly.
Conor Burns (Bournemouth West) (Con)
My right hon. Friend rightly began his statement by saying of the civil service: “It is there to implement the policies of the Government of the day, whatever its political complexion.” He will be aware, through his role as a constituency Member of Parliament and as a Minister, of the frustrations expressed by many Ministers at the lack of determination of some in their Departments to implement the programme on which the Government of the day were elected. What assurances can he give us that this programme of reform will keep its central facet—namely, that the civil service is there to implement the will of the people as expressed by those elected to the House of Commons?
Mr Maude
That is a fundamental tenet of our system, and if there were widespread concern that that was not happening, pressure to change the system along the lines that the right hon. Member for Wentworth and Dearne (John Healey) has outlined would become hard to resist. The key point, however, is that the permanent secretary of a Department is under an obligation to provide Ministers with officials who are capable of delivering the Minister’s priorities. If that is not happening, Ministers are entitled to—and should—make quite a fuss.
Nia Griffith (Llanelli) (Lab)
While I fully agree that we need to deal with poor performance effectively, and I look forward to seeing the Minister’s capabilities plan, will he tell me why he has chosen to use norm-referencing at an arbitrary 10%, which is going to encourage colleagues to have a dog-eat-dog approach and to vie with each other to get out of the bottom 10%, like in some ghastly TV game show, rather than to deal with poor performance where and whenever it occurs?
Mr Maude
All the evidence suggests that without some, by its very nature, relatively arbitrary way of ranking performance, we will not get the focus on dealing with poor performance. I do not take a simplistic view of poor performance that suggests that anyone who is underperforming should immediately exit the civil service because the first thing that should be done is to provide proactive support and development of the individual to get them to improve. If that does not prove possible, then it is not right and it is not fair to the rest of the civil service, who work hard and are dedicated, to see the civil service’s reputation pulled down by those who are consistently underperforming.
Robert Halfon (Harlow) (Con)
When looking at civil service reform, will my right hon. Friend continue to ensure the curtailing of millions of pounds of taxpayers’ money spent on civil service management conferences? Will he also curtail the huge spending on expensive head-hunters by civil service departments, often staffed by former senior civil servants themselves?
Mr Maude
Spending on all those things has massively reduced since the coalition Government were formed. We can often do these things much more effectively. Management-type conferences, away-days and all that sort of thing now take place largely in the Government’s own property at much lower cost. It is sometimes necessary to use head-hunters to do particular recruitments, but this should be the exception rather than the rule.
Ms Margaret Ritchie (South Down) (SDLP)
I thank the Minister for his statement, in which he said that the civil service of the future would be smaller. In light of that, what will be the staffing head count implications for those parts of the civil service that reside within the devolved regions, such as the Northern Ireland Office and Her Majesty’s Revenue and Customs?
Mr Maude
Those decisions will be taken by those Departments themselves. We do not expect to do that by central diktat. So far as civil servants in the devolved Administrations are concerned, that is of course the responsibility of those Administrations. The Northern Ireland civil service is slightly different as it is separate, but in Scotland and Wales, the permanent secretaries of both those Administrations have been involved in the development of these plans.
Martin Horwood (Cheltenham) (LD)
Civil servants at GCHQ and elsewhere in my constituency already deliver what I call a gold-plated service to government, despite serious challenges to recruitment and retention. Will these reforms strengthen the hand of unique institutions such as GCHQ in the face of serious private sector competition for highly expert staff?
Mr Maude
I am very aware of the amazing work done by GCHQ and of the extraordinary talents that get attracted to Cheltenham, and by and large retained there, in support of work of the highest importance for the safety of the nation. There is certainly nothing that we are doing that will inhibit the ability of organisations such as GCHQ to do what is necessary to recruit and retain the very best.
Nick de Bois (Enfield North) (Con)
There are many talented public servants at all levels of the civil service, but will my right hon. Friend assure me that these plans will allow that talent to be recognised and advanced by rewarding innovation and successful outcomes?
Mr Maude
My hon. Friend makes a very good point—that the system does not always reward those who innovate. We make the point in the paper that no one’s career ever seems to suffer if they continue to preside over an inefficient status quo, but if people try something new that does not work, they can feel very exposed. We need to be as rigorous in examining, testing and challenging the status quo as we are with innovation and change. We need to be supportive of those who try new things. Not everything new that gets tried will work, but the best organisations learn at least as much from things that are tried and do not work as they do from things that are tried and do.
Mark Reckless (Rochester and Strood) (Con)
The Prime Minister recently stated in Malaysia that “Yes Minister” remains true to life. The Minister has said today: “There should only exceptionally be more than eight layers between the top and the front line…That will help to speed up decisions and empower those at more junior levels.” Could we not be a little more ambitious?
Mr Maude
I am always open to encouragement of that nature. In a really big organisation—and some parts of central Government are very big organisations—eight is not an inordinate number of layers. Those are still quite big spans of authority. In most cases, however, the number should be significantly lower. We particularly want the changes to empower people at the front line to make decisions and judgments without constantly having to refer them up the hierarchy, because that will make their jobs more rewarding and satisfying.
Mr David Nuttall (Bury North) (Con)
Can my right hon. Friend confirm that a reduction in the size of the civil service will not be offset by an increase in the number of former civil servants who are subsequently re-employed as consultants?
Mr Maude
I have no control over whether former civil servants obtain employment as consultants. I can say, however, that the amount of money that the Government spend on consultants has fallen by some 60% since the election, that it remains at a much lower level, and that it will continue to do so.
Bob Blackman (Harrow East) (Con)
I am delighted that my right hon. Friend is prepared to learn from local government. The Communities and Local Government Committee is conducting an inquiry into the operation of mutuals and co-operatives, and other forms of working. The evidence is still coming in, but it is clear that such arrangements lead to better services, more job satisfaction, and innovation. However, in order to go forward, people need support: they need financial backing, and they need to be encouraged to take the work on. What measures will my right hon. Friend take to provide them with that opportunity?
Mr Maude
We have set up a mutuals information service so that we can provide ready access to information. We have also set up a small fund that can buy legal and commercial advice for groups of public sector workers who want to establish themselves as mutuals. That is beginning to succeed, but what is needed above all is for the managers in such public sector organisations to support those who want to spin themselves out as public service mutuals. There is a tendency for managers to feel that that is somehow a threat and to resist it, but they should see it as a big opportunity, for all the reasons that my hon. Friend has so eloquently cited.
Rory Stewart (Penrith and The Border) (Con)
The 2001 reforms of the Foreign Office led to a torrent of management jargon, and to officials managing themselves instead of getting to grips with foreign countries. Will the Minister reassure us that this round of reforms will not promote people on the basis of abstract management skills at the expense of the energy, imagination, practical wisdom and courage which are at the heart of good administration?
Charlotte Leslie (Bristol North West) (Con)
Bristol is currently negotiating its exciting city deal, which will create a revolution in regional growth. Can my right hon. Friend confirm that the reforms will enable the civil service—particularly in the vital Department for Transport, which oversees the infrastructure for growth—to be as dynamic, growth-focused and, indeed, business-minded as Bristol, our regions and the nation need it to be?
James Morris (Halesowen and Rowley Regis) (Con)
I welcome the statement. Does the Minister agree that one of the most important things the modern civil service needs to do is look at new ways of delivering public services, particularly given the challenges of the digital era?
Henry Smith (Crawley) (Con)
My right hon. Friend touched on the importance of importing the very best of transformational change from the enterprise sector. Will he say a little more about that?
Mr Maude
We want a civil service culture that is much more recognisable to those who come from the private sector so that there can be greater interaction. Where people do move from one sector to another, frequently it does not work because they feel like they have landed on a different planet. It is particularly valuable for civil servants to spend some time in the private sector as they will pick up additional skills, as well as vice versa. There can be very valuable cross-fertilisation. This has often been tried, but it has worked far too rarely. We are going to have another go.
European Convention on Human Rights
(12 years ago)
Commons ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Secretary of State for the Home Department (Mrs Theresa May)
The Government are committed to reviewing and reforming—I must interrupt myself to apologise, Mr Speaker, as I should first move the motion.
I beg to move,
That this House supports the Government in recognising that the right to respect for family or private life in Article 8 of the European Convention on Human Rights is a qualified right and agrees that the conditions for migrants to enter or remain in the UK on the basis of their family or private life should be those contained in the Immigration Rules.
It might have been unfortunate if I had forgotten to do that formal bit, Mr Speaker.
Mr Speaker
The Home Secretary can rest assured that I would have reminded her.
Mrs May
I know you are assiduous in your duties, Mr Speaker, and I recognise that you would, indeed, have reminded me—and with courtesy, I am sure.
The Government are committed to reviewing and reforming all the main routes of immigration to the UK. As a result, we anticipate net migration will fall from the hundreds of thousands to the tens of thousands. Last week I laid new immigration rules for family immigration. These new rules will ensure that those who come here can do so only on the basis of a genuine relationship, that once here they can pay their way, and that they can integrate properly into British society. So we will increase the minimum probationary period for new spouses and partners to five years; we will stop dependent relatives becoming an unnecessary burden on the national health service; and we will introduce new tests to ensure family migrants can speak English, understand our history and respect our values.
But central to making those new rules work effectively is for this House to set out its view on how the right to family and private life in article 8 of the European convention on human rights should interact with our immigration policy. The ECHR makes it absolutely clear that article 8 is not an absolute right. Article 8(1) of the convention provides for the right to respect for private and family life, but that is qualified by article 8(2), which allows the state to interfere in the exercise of that right.
In an immigration context, the convention allows interference in the right to respect for family or private life on grounds of public safety, such as the prevention of crime, or to protect the UK’s economic well-being, including by controlling the numbers of immigrants allowed to enter or remain in the country. That means the Government can interfere with the exercise of article 8 rights, in full compliance with the ECHR, and in full compliance with the law, where it is necessary and proportionate to protect the public from foreign criminals or to safeguard our economic well-being.
The problem is that Parliament has never before been given the opportunity to set out how it believes it should be possible to interfere with article 8 rights in practice. That meant the courts were left to decide the proportionality of interference with article 8 rights themselves, in each and every individual case, and without the benefit of the views of Parliament.
We are putting that situation right. We are letting Parliament do its job by making public policy, and we are letting the courts do their job by interpreting the law, with regard to the clear view of Parliament of where the public interest lies.
Robert Halfon (Harlow) (Con)
Does my right hon. Friend agree that the original ECHR is a very noble document, but that the problem is the misinterpretation of it by modern judges? Does she also agree that the actions the Government are taking will give these judges the clear message that they should go back to the original principles of the convention rather than adhere to political correctness?
Mrs May
I believe that what we are doing today and the motion we are asking this House to pass—I hope it will pass with support from all parts of the House—will send a clear message about what we believe the article 8 rights mean in terms of where the public interest lies. That is important because, as I say, Parliament has not been able to do that so far. But of course we uphold the principles of human rights, and this is in no way contrary to those principles or to the convention because, as I have said, the convention itself qualifies this particular right.
Jeremy Corbyn (Islington North) (Lab)
As nobody has a dispute about whether article 8 is an absolute—it has always been subject to definition by national courts—why on earth are we debating this today? Is this not just part of the Home Secretary’s general attack on the whole principle of the European Court of Human Rights and the European convention on human rights, which her Back Benchers frequently raise at every possible opportunity?
Mrs May
I am a little surprised that the hon. Gentleman stands up to question why Parliament is debating something, as he has usually been keen for Parliament to debate more than it does. The point of this is that clearly—I shall deal with this later—there has been a request from the judiciary that Parliament should make its views clear on this issue, so that they can take that into account when examining cases. It is entirely reasonable that Parliament should give its voice on this matter.
Mr James Clappison (Hertsmere) (Con)
I warmly welcome the Home Secretary’s approach. On this question of Parliament’s view, is it not important that when the courts are striking a balance between family rights and the article concerned, and “serious offences” by foreign offenders, it is right that they should know what Parliament regards as “serious offences” for these purposes?
Mr David Ruffley (Bury St Edmunds) (Con)
Will my right hon. Friend deal with something that is in the minds of all Government Members? A robust measure such as this, put in front of the House, could have been debated at any time in the 13 years before the 2010 election.
Pete Wishart (Perth and North Perthshire) (SNP)
I am looking at a motion that says nothing about Parliament’s view on article 8; all it seems to be is a restatement of the bleeding obvious. We all know that article 8 is a qualified right, so why are we here debating a nothing motion?
Mrs May
I suggest that the hon. Gentleman read right to the end of the motion, as he will then see that we do indeed record that we support the
“right to respect for family…life in Article 8”.
We say that it is “a qualified right” and we agree that
“the conditions for migrants to enter or remain in the UK on the basis of their family or private life should be those contained in the Immigration Rules.”
That is the second crucial part of the motion. Opposition Members are arguing that somehow Parliament should not debate an issue that is of considerable concern to members of the public. The public do not want to see foreign criminals whom they think should be deported, and whom the Government think should be deported, being able to stay in the UK because they are able to claim a right under article 8. Parliament has the opportunity today to set out its view on this clearly.
Mr Jack Straw (Blackburn) (Lab)
May I, in fully endorsing the Home Secretary’s approach and this motion, ask her to comment on the following? The previous Government, including through my right hon. Friend the Member for Kingston upon Hull West and Hessle (Alan Johnson), did make great efforts to get the courts to change their approach, as they did in the Amy Houston appeal—I have details of the grounds of appeal here with me—but it was only when the courts found themselves trapped by their own precedent that this became necessary. I therefore endorse this approach, but it is not for the want of trying an alternative route pursued by the previous Government.
Mrs May
The right hon. Gentleman makes the valid point that this has been an issue for some time. I think it would have been possible for the previous Government to have done what we are doing today and bring a motion before Parliament, but we have done it and we are giving people that opportunity.
Mrs May
I shall make a little progress, if I may, because I have taken a number of interventions.
With the changes that I am making, there will generally be no need for a separate assessment of article 8 beyond the requirements set out in the immigration rules. Compliance with the immigration rules will mean compliance with article 8, other than in truly exceptional circumstances. So, a foreign criminal who does not meet the criteria set out in the rules will be deported and they will not have a second bite at the cherry via article 8. Similarly, a migrant seeking to come to the UK to join a partner must meet the criteria set out in the rules or a visa will be refused and there will be no separate article 8 claim. The immigration rules will no longer be a mere starting point, with leave granted outside the rules or appeals allowed under article 8 for those who do not meet them. The rules will instead take into account article 8, relevant case law and appropriate evidence and they will be proposed by the Executive and approved by the legislature.
Of course, the courts have a clear constitutional role in reviewing the proportionality of measures passed by Parliament, but now the focus of the courts should be on considering the proportionality of the rules rather than the proportionality of every individual application determined in accordance with the rules. Where the courts consider individual deportation decisions, it should now be with consideration of Parliament’s public policy intent firmly in mind.
Some have suggested that Parliament cannot set out how article 8 should be qualified because we are bound by the European convention on human rights. They evidently do not understand that article 8 is a right that is qualified by the convention itself. Of course, judges will continue to consider each case on its individual merits, but it is the courts themselves that have said that Parliament needs to make its views clear. In a case in 2007, the House of Lords said that a statement from Parliament was needed on where the public interest lies in the operation of article 8 in immigration cases. The Court of Appeal, last year and this year, has indicated that greater weight is to be given to the public interest when that has been endorsed by Parliament. Today’s motion provides the courts with the statement and the endorsement from Parliament that they have said is needed. The courts should then give that statement from the elected legislature the weight that it deserves.
John McDonnell
Will the right hon. Lady clarify whether we are legislating today? Are we passing into law the rules that she published less than a week ago?
Mrs May
The motion recognises the qualification of article 8 and invites the House to agree that it is set out in the immigration rules. The immigration rules themselves have been laid before Parliament—[Interruption.] I am very happy to read the motion again. It states that the House
“agrees that the conditions for migrants to enter or remain in the UK on the basis of their family or private life should be those contained in the Immigration Rules.”
Mr Cash
I am much encouraged by the line the Home Secretary is taking on all this. Over and over again, as she knows, I have raised the question of the interpretation by the courts of matters relating not only to the European convention but to European Union law. Is she taking the opportunity, by one means or another, to have discussions with those in the superior hierarchy of the judiciary? To bolster the assumptions that lie behind what she is saying in defence of the sovereignty of this Parliament, does she want to put the words “notwithstanding the Human Rights Act 1998” in front of the legislation so that the courts are under no misapprehension about what they are to do?
Mrs May
I think my answer to my hon. Friend will be shorter than his question. The motion makes it absolutely clear what we are asking people to do today and I am certain that the judiciary will take into account the view of Parliament. Indeed, as I have said, members of the judiciary have suggested that it would be helpful to have the view of Parliament.
Since the Human Rights Act was implemented in 2000, it has become clear that the existing immigration rules do not properly set out how article 8 should be qualified in real cases. As a result, foreign criminals and those who failed to meet the requirements of the immigration rules and who should not be allowed to come to or stay in the UK have increasingly been able to challenge their decisions in the courts on the grounds of a breach of article 8. So, for those who do not meet the requirements of the rules, grants of discretionary leave outside the rules on article 8 grounds have risen steadily to the point that in 2010 the UK Border Agency granted discretionary leave on the basis of article 8 in around 9,500 immigration cases. That means that in 9,500 cases, applicants could not meet the requirements of the immigration rules but were allowed to stay in the UK none the less. In addition, reflecting established policy on dealing with such cases, they were automatically granted full and immediate access to the benefits system. Perversely, that placed them in a better position than applicants who had met the immigration rules and were denied such access while they served a two-year probationary period.
Mr David Burrowes (Enfield, Southgate) (Con)
A key criticism regarding the use of article 8 is how it has appeared to give greater protection to convicted foreign criminals facing deportation than to British citizens facing extradition. Can the Home Secretary reassure my constituent Gary McKinnon and others like him facing issues of mental illness and autism—I do not want to trespass on to that particular case—that the principle of this motion will not affect genuine article 8 applications relating to extradition?
Mr David Winnick (Walsall North) (Lab)
Following the question put by my hon. Friend the Member for Hayes and Harlington (John McDonnell), I should like some clarification. As has been emphasised several times this afternoon, the immigration rules are being changed, presumably arising from the Home Secretary’s statement last week. Will Parliament have the opportunity to debate those changes?
Mrs May
The immigration rules have been laid and it is open to any Member of the House to pray against them and see whether they can initiate a debate on them in the House. [Interruption.] It is open to anybody to pray against the immigration rules if they wish to debate the detail of them. I will refer to the changes that are being made. What we are saying today is that article 8 should be qualified in line with the immigration rules. I think I have repeated the motion several times.
Pete Wishart
The right hon. Lady is going to have to explain very carefully and clearly exactly what we are debating today. Are we debating and agreeing to the rules that she announced in her statement last week or are we agreeing to restate once again the fact that article 8 is qualified in the terms of the European convention on human rights?
Mrs May
I am tempted to give exactly the same answer to the hon. Gentleman as I gave to him earlier. What we are debating is Parliament’s saying, first, that the House supports the Government in recognising the qualified nature of article 8 and, secondly, that the basis on which article 8 can be qualified is set out in the immigration rules. It is open to hon. Members to pray against the immigration rules if they wish to debate them. [Interruption.] The hon. Member for Perth and North Perthshire (Pete Wishart) asks whether we are agreeing to the immigration rules. What we are agreeing is that article 8 is qualified as set out in the immigration rules. There is then the separate issue—perhaps it would be helpful if I put it this way—of whether the immigration rules are prayed against and whether there is then a debate and a vote on those rules. I hope that I have helped him. There is a very important point at issue here: the courts have said that Parliament needs to give its views about the qualification of article 8 and that is what I am inviting hon. Members to do today.
Mrs May
I am going to make some progress now. I apologise but I have taken several questions from one hon. Member and I want to make some progress.
I was talking about the cases we have had, and I note that there are issues at appeal stage. Last year, 1,888 appeals against deportation were lodged. Of the 409 successful appeals, 185—that is 45%—were allowed on article 8 grounds. Those are the consequences of having had immigration rules that do not properly set out the qualified nature of article 8. The new immigration rules state how the balance should be struck between the public interest and individual rights. They take into account relevant case law, evidence, independent advice and public consultation, and they provide clear instructions for UK Border Agency caseworkers about the approach they must normally take in deciding article 8 claims. They provide the basis for a consistent, fair and transparent decision-making process, and I ask the House to agree that they reflect how family migration should be controlled in the public interest. Once endorsed by the House, the new immigration rules will form a framework that Parliament considers is compatible with article 8, on which the courts can therefore place greater weight as a statement of the public interest.
I turn now to the criteria in the new immigration rules that will be used to judge claims under article 8 in practice. The particular aspects of the new family immigration rules that are relevant are those on criminality, the best interests of a child, the family or private life of non-criminals, and the income threshold.
Perhaps nothing has done more to damage public confidence in the immigration system than when serious foreign criminals have used flimsy article 8 claims to avoid removal from this country. The European convention on human rights is clear—those who commit crimes do not have an unqualified right to respect for private and family life. So we are changing the immigration rules to make clear Parliament’s view that if someone is a serious criminal, if they have not behaved according to the standards we expect in this country, a weak claim to family life is not going to get in the way of their deportation. There is no place in this country for foreign criminals who threaten our safety and security and who undermine our rights and freedoms.
If a foreign criminal has received a custodial sentence of 12 months or more, deportation will normally be proportionate. Even if a criminal has received a shorter sentence, deportation will still normally be proportionate if their offending has caused serious harm or if they are a persistent offender who shows a particular disregard for the law. So where a foreign criminal is sentenced to less than four years, where no children are involved, and where the criminal has been here lawfully for less than 15 years, discounting their time in prison, deportation will normally be proportionate, even if they have a genuine and ongoing relationship with a partner in the UK. Even if the criminal has been here lawfully for 15 years, unless there are insurmountable obstacles to family life with that partner continuing overseas, deportation will still normally be proportionate.
Alok Sharma (Reading West) (Con)
I welcome the motion and I hope it will have the support of all Members across the House, but can my right hon. Friend give me an assurance that in cases involving children, the best interests of the child will be a primary consideration in any decision that is made?
Mrs May
I shall speak in more detail about the best interests of the child, so perhaps the hon. Lady will wait and see if I answer her query in the comments that I make.
On the criminality issue first, the test for private life will also be a stringent one. Deportation will be proportionate unless the foreign criminal has been continuously resident in the UK for at least the past 20 years, excluding any period of imprisonment, and they have no social, cultural or family ties with their country of origin. For offenders aged under 25, deportation will be proportionate unless they have spent at least half their life residing continuously in the UK, excluding any period of imprisonment, and they have no ties with their country of origin. In all other cases, other than in exceptional circumstances, deportation of the foreign criminal will be proportionate.
Mrs May
May I make a little more progress? My hon. Friend may choose to try again when I have finished dealing with this issue.
For the most serious foreign criminals—those sentenced to four or more years in prison—deportation will almost always be proportionate. Article 8 rights should prevent deportation of serious foreign criminals only in the most genuinely exceptional circumstances. So I ask the House to agree that the rights of the British public should outweigh the rights of foreign criminals in the way the new immigration rules describe. The choice for a foreign national wishing to avoid deportation is now simple: do not break the law.
I said that I would come on to the best interests of a child. The best interests of a child in the UK must always be a primary consideration. That is what the law requires and the new immigration rules reflect how the best interests of a child should be taken into account in striking a proportionate balance between an applicant’s family life and the public interest, for both criminals and non-criminals. For non-criminals, where a child would have to leave the UK as a consequence of the decision to remove their parent, the question is then whether it is reasonable to expect the child to leave. The best interests of the child will normally be met by remaining with their parents and returning with them to their country of origin, unless the child is a British citizen or has been resident in the UK for at least the past seven years and it would not be reasonable to expect the child to leave the UK.
For criminal parents, there is a broader range of circumstances in which the public interest may outweigh the best interests of a child. For serious foreign criminals, those sentenced to four or more years, the best interests of a child will only outweigh the public interest in deportation of the foreign criminal in exceptional circumstances. For criminals sentenced to between 12 months and less than four years, or those sentenced to less than 12 months but whose offending has caused serious harm or who are persistent offenders and show a particular disregard for the law, deportation will still normally be proportionate.
Lisa Nandy
I am grateful to the Home Secretary for giving way; I know that she wants to make some progress. Can she give an assurance that decision makers will not try to second-guess what is in the best interests of a child? We would not accept that in any other form of decision making relating to children. The individual circumstances of the child must be considered in the decision-making process.
Mrs May
One of the points about what we are doing, to which I tried to allude earlier, is that there is a statutory duty—in section 55 of the Borders, Citizenship and Immigration Act 2009—to safeguard and promote the welfare of children in the UK. We are now bringing the consideration of the best interests of the child formally into the new immigration family rules, which reinforces that point.
I was talking about criminals who have been sentenced to between 12 months and less than four years or who are persistent offenders. Article 8 will prevent a deportation only if they have a genuine and subsisting parental relationship with the British citizen child or a child who has lived in the UK for at least the last seven years, if it would not be reasonable to expect the child to leave the UK with the foreign national criminal and if there is no other family member able to care for the child in the UK. Unless all three conditions are met, it will normally be proportionate to deport the criminal. If the criminal’s child is not a British citizen and has lived in the UK for less than seven years, the criminal can still be deported. If it will be reasonable to expect the child, whatever their nationality, to leave the UK, the criminal can still be deported. If there is another family member who can care for the child in the UK, the criminal can still be deported. These requirements represent a rational and proportionate qualification of article 8 rights in the interests of public safety and security, and I invite the House to endorse them.
Mr Brazier
My right hon. Friend is making a powerful case, and one that most Members will support, but is she aware that she has used the words “except in exceptional circumstances” seven or eight times already? If the court alone is free to determine what are exceptional circumstances, experience from other areas of the law suggests that in practice we might find that we make disappointingly little progress.
Mrs May
I recognise my hon. Friend’s concern, but there has to be a reference to exceptional circumstances. The way we are approaching it—setting out clearly the criteria that identify and describe the right to a private and family life—means that the exceptional circumstances will be far more limited than they have been up to now. As I hope he and others will understand from the detail I have given to the House, I have been going through every aspect of this carefully and setting out the expectations clearly. Therefore, I have every expectation that, in being able to look at those criteria and see what the public interest is in these matters, or how Parliament has defined the public interest, there would need to be truly exceptional circumstances indeed for someone to be allowed to remain in the UK outside the criteria. I have been clear that I have every expectation that this will have the impact we want it to have. If it does not, we will of course have to look at potential further measures.
Richard Drax (South Dorset) (Con)
I support the direction in which the Home Secretary is heading but have just one question. I might be jumping the gun, but given that so many countries practise torture—I think that she will reaffirm the position that prisoners are not sent back to such countries—what do we do in cases where we cannot send a criminal back to their country of origin because of this. As I have said, torture is used frequently around the world.
Mrs May
Under the convention, the question of whether someone will be subjected to torture relates not to article 8, but to article 3, I think—[Interruption.] I am getting nods from hon. Members. Of course, the European convention on human rights includes the statement that people should not be sent back to countries where they will be subject to torture, but the issue under discussion is one reason why, on a number of matters, we have negotiated with a number of countries throughout the world what is called “deportation with assurances”. This has been tested in the courts and enables us to deport individuals, with the assurance, which we have achieved through a memorandum of understanding, that they—individuals in those circumstances—will not be subject to torture when they are returned.
Dr Francis
Given the complexity of the changes and their number, instead of our having a debate today, would it not be more appropriate to refer the matter for scrutiny to some of the many Select Committees of this House, including my own? As Chair of the Joint Committee on Human Rights, I raised the matter earlier this afternoon with its members, who agreed with me that this was a matter of considerable concern which should be referred to our Committee. To illustrate the issue’s complexities, I note that 75 years ago this month 6,000 Basque refugee children arrived in this country. Would they have been excluded under these new rules?
Mrs May
I recognise the work undertaken on the matter by the Joint Committee on Human Rights, which the hon. Gentleman chairs, and, if he wishes to see a debate about the immigration rules, it is of course entirely open to the Committee and, indeed, to the hon. Gentleman himself, as I indicated earlier, to pray against them, but today I am asking Parliament to say, “We recognise there is a qualified right, and that qualification is set out in the immigration rules agreed by the House.”
The new immigration rules will demand that, for non-criminals without children to remain in the UK on the basis of their family life, they will have to show that they are in a genuine relationship. If they can pay their way and meet the income threshold and other requirements, they can qualify for settlement after five years. If they cannot meet those requirements, but insurmountable obstacles to family life with their partner are continuing overseas, they can enter a 10-year route to settlement.
To remain in the UK on the basis of a private life, applicants must have resided continuously in the UK for at least 20 years, discounting any period of imprisonment; or they must be under 18 years old and have resided continuously in the UK for at least seven years; or they must be aged 18 or over but under 25 and have spent at least half their life residing continuously in the UK; or they must be aged 18 or over, have resided continuously in the UK for less than 20 years but have no social, cultural or family ties with their country of origin. If applicants qualify under those criteria, they will enter a 10-year route to settlement.
The European convention on human rights also makes it clear that article 8 may be interfered with to protect the economic well-being of the UK. Strasbourg case law has established that this includes controlling immigration. This Government believe that anyone who wishes to bring a foreign spouse, partner or dependant to the UK should be able to support them financially, and we sought advice from the Migration Advisory Committee on the minimum income level that would allow a British citizen or a person with settled status in the UK to support an immigrant partner or dependant.
Following that advice, we have set the income threshold at £18,600, a figure that was at the lower end of the range recommended by the Committee, but the level at which a sponsor can generally support themselves and a partner without accessing income-related benefits. Children, of course, involve additional costs to the state, particularly in schooling, so, again following advice from the Migration Advisory Committee, the income threshold will rise to £22,400 for a partner and one child, with an additional £2,400 for each further child.
Both partners’ earnings from employment in the UK can be counted towards the new requirement, together with their non-employment and pension income, and significant savings can also be used to offset any deficit in income, but third-party support in the form of subsidies or undertakings will not be allowed.
An applicant whose sponsor is in receipt of a specified disability-related benefit or carer’s allowance will be exempt from the new financial requirement. We believe that the new financial requirements are necessary, proportionate and firmly in the public interest, and I trust Parliament will endorse that view.
It may be helpful to the House if I set out some examples of how the new rules might operate in practice. In a non-criminal context, there might be the example of a former student who came to the UK with his partner and one-year-old child. His relationship with his partner has now broken down, and he has seen his child—now aged four—only once in the last year. He has no role in the child’s daily care. His partner, also a student, continues to study, and she and the child will remain here for another year. As the former student’s course has now ended, he has applied under the family rules on the basis of his child. In this case, the child is not British and has not lived in the UK for the past seven years. The father is not a primary carer and does not appear to have a genuine and subsisting relationship with his child. His former partner is also here only on a temporary basis for one more year. The application would therefore be refused.
Another example might be that of a young married couple who met overseas. The woman subsequently came to the UK to study and they married here. The man is a British citizen who earns just less than the minimum income threshold, and the woman is no longer a student and is not working. The couple are genuine and their relationship is ongoing, and they may still be able to meet the income requirement, but if not, and if there is no evidence of any insurmountable obstacles to their continuing their family life together overseas, we would expect them to do so.
In criminal cases, there might be an example of a serious foreign criminal sentenced to four years imprisonment for class A drugs supply. He has no family in the UK but claims that over his previous 15 years in this country he has built up a substantial private life. This man’s crimes represent such a serious level of offending that they outweigh any article 8 issues. There is no evidence that his case is exceptional, and this criminal could expect to be deported.
Another foreign criminal is sentenced to two years’ imprisonment for actual bodily harm. He has been in the UK lawfully for seven years before being sent to prison and has a partner who is settled in the UK. Again, there do not appear to be any exceptional circumstances in this case. The criminal has been lawfully resident in the UK for less than 15 years. It is therefore proportionate and in the public interest for this criminal to be deported.
For too long, the rights of foreign criminals have been placed above the rights of the British public, and for too long Parliament has not given its view on when it is proportionate to remove those criminals in the public interest. We are putting that right. We are making it clear that the British public’s right to protection from crime trumps a foreign criminal’s weak claim to family life, and we are allowing the views of those in Parliament, as the democratically elected representatives of the British people, to be heard on this issue loud and clear. We trust that the courts will give due weight to a statement from this House.
Today I have outlined common-sense proposals with which I hope all right hon. and hon. Members can agree. I ask the House to approve this motion and to let its views be heard. I commend the motion to the House.
Yvette Cooper (Normanton, Pontefract and Castleford) (Lab)
The Government have raised concerns about how article 8 of the European convention on human rights and the Human Rights Act 1998 are interpreted in cases involving foreign criminals convicted in the UK and then put up for deportation. I agree with the Home Secretary that the Government should be able to deport foreign citizens who have come to Britain and then broken British laws. People who come here from abroad need to abide by our laws and our values.
As the House will know, in 2007 the Labour Government introduced provisions for the automatic deportation of foreign criminals in the UK Borders Act 2007, and the number of foreign criminals deported each year trebled from 1,673 in 2005 to 5,528 in 2009. The Home Secretary has raised what the Home Office says are 185 cases that have gone to appeal each year on grounds of family life. We agree that there is a problem, with people finding it hard to understand the justice of the decision by the courts in some cases where foreign criminals have not been deported.
Article 8 is a qualified right. It says:
“Everyone has the right to respect for his private and family life.”
However, it also says that that needs to be balanced with
“the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
It is not like article 3 on the prevention of torture, which is properly an absolute right, and which is not affected by this motion.
It stands to reason that article 8 should be a qualified right. People can be imprisoned if they break the law even if it affects their family life. The courts decide the balance of rights in individual cases, but it is part of our legal framework that Parliament can set out how qualified rights should be balanced in different areas; indeed, Parliament does so all the time through legislation. That relationship between Parliament and the courts is made even more explicit in the Human Rights Act, where Parliament is actively encouraged to debate how the rights should be balanced, and the judiciary are expected to take that into account.
Henry Smith (Crawley) (Con)
That being the case, why has our system apparently been so unbalanced over the past decade?
Yvette Cooper
It was the Labour Government who introduced the UK Borders Act 2007, which provided for the automatic deportation of foreign criminals. The number of deportations of foreign criminals increased substantially from 2005 until the election in 2010, after which the number fell significantly. I therefore say to the hon. Gentleman that his Government bear some responsibility for the action that is being taken. More needs to be done in practice to deport foreign criminals, as opposed simply to discussions of the motion today.
Mr Clappison
If the right hon. Lady is proceeding down that track, perhaps she will remind the House how many prisoners were found not to have been considered for deportation in 2006, let alone have their article 8 rights taken into account. Will she confirm that the figure was just over 1,000?
Yvette Cooper
It is interesting that the hon. Gentleman has mentioned the figure of 1,000. The number of foreign criminals being deported each year trebled between 2005 and 2009 to more than 5,000. In the most recent financial year, the number of foreign criminals being deported from this country fell by 1,000 compared with the previous year. The UK Border Agency has raised a series of concerns about how individual cases are being dealt with and the problems with travel documentation. Those are effectively administrative concerns. Some 1,000 cases are not being dealt with, not as a result of article 8, but because of serious problems with administration at the UK Border Agency. I think that that is serious, and I hope that he does too.
Mr Clappison
Is the right hon. Lady telling us that the Home Secretary of the day, Charles Clarke, who was an honourable man, resigned because he presided over such a glorious success?
Yvette Cooper
As the hon. Gentleman will know, as a result of the problems over foreign criminals, a series of actions and measures were taken that increased the number of foreign criminals being deported. The problem for the Government is that the actions that they have taken seem to have reduced the number of foreign criminals being deported by more than 1,000 a year—a drop of nearly 20% in 12 months. That means that foreign criminals who should be deported are staying in this country and in the community. The UK Border Agency is not deporting them because of the chaos and fiasco within it.
Alok Sharma
Will the right hon. Lady be supporting the motion this evening? Everything that she is saying suggests that she supports what the Home Secretary has set out.
Yvette Cooper
I think that we need action to deport more foreign criminals. That includes more practical action through the UK Border Agency. The Home Secretary and the Minister for Immigration need to explain what they think the motion means. I will come on to that now, because it is an important issue.
The relationship between Parliament and the courts is made explicit in the Human Rights Act 1998. Parliament is actively encouraged to debate the way in which rights should be balanced, and the judiciary is expected to take that into account. Similarly, the British courts cannot strike down an Act of Parliament or primary legislation on immigration, even if they think that it does not comply with the Human Rights Act. Parliament has to decide how to respond if that is the case. That is the legal and democratic framework within which we operate. As part of that, it is reasonable for Parliament to express its view on the balance of different rights, and in particular the balance of different qualified rights. Indeed, we do so all the time through our legislation.
Jeremy Corbyn
My right hon. Friend will have heard the intervention of the Chair of the Joint Committee on Human Rights. Does she not think that it would have been better if this proposal had been laid on the Table today to enable his Committee to examine it and its implications for our participation in the European convention on human rights?
Yvette Cooper
My hon. Friend makes an important point, because the Joint Committee on Human Rights does important work. The status of the motion is unclear, because we do not know exactly how the Home Secretary expects it to operate. For example, we know that the new immigration rules affecting foreign criminals, which were set out last week, explicitly refer to how article 8 should be addressed. We believe that is legitimate, but other immigration rules do not make such reference. The rules on foreign criminals also allow the courts to consider exceptional cases, but the process remains deeply unsatisfactory and confused. The Home Secretary has said that she wants to send clear signals to the courts, but she is not sending clear signals to the House.
Mr Cash
Is the Home Secretary aware of the series of speeches made by the Lord Chief Justice to the Judicial Studies Board and others? He has made it abundantly clear that in his opinion the judiciary, including the senior judiciary, have given far too much attention to the Strasbourg precedents and not enough to what he describes as the “golden thread” of the English common law. He says that it is therefore essential that we get this right and do not engage in generalised waffle about the question—
Mr Deputy Speaker (Mr Lindsay Hoyle)
Order. The hon. Gentleman has had two interventions that have taken up speaking time. I am sure he would not want to do that, in case he wants to catch my eye later.
Yvette Cooper
I am not sure whether the hon. Member for Stone (Mr Cash) was accusing me or the Home Secretary of “generalised waffle”. Given his record, I fear that it could have been either of us. It was probably both.
I am sure the hon. Gentleman will have read considerably more of the judicial pronouncements on this subject than I have, but the House is being challenged to send a clear signal to the courts, and we are not being clear about what we are doing in the motion. The status of the motion remains unclear because it is neither primary nor secondary legislation.
Mr Straw
Although the hon. Member for Stone (Mr Cash) is quite right to refer to the important observations of the Lord Chief Justice, does my right hon. Friend accept that even if the Human Rights Act had never have been passed, we would still have been faced with this conundrum about the balance between the articles in the European convention on human rights so long as we remained committed to the convention? That is a key part of the Conservative party’s policy as well as ours.
Yvette Cooper
My right hon. Friend is right. The convention provides an important framework, and like him I understand that the Conservative party remains committed to it. A strength of the Human Rights Act—I know he was a key pioneer in bringing it into British law—is that it provides Parliament with the ability to debate article 8. It is legitimate for us to do so as part of our debate on immigration rules and all kinds of other legislation.
Mr Burrowes
I will help the right hon. Lady not to take any further interventions by asking her to be clear about the Opposition’s position. They cannot have it both ways. I understand that they accept the observation of the House of Lords in the Huang case in 2007 that immigration lacked a clear framework, but do they also accept the observation that that was because the immigration rules
“are not the product of active debate in Parliament”?
We are having that debate today, so surely she should welcome that and accept the motion. Let us not just talk about it, let us have some action.
Yvette Cooper
The hon. Gentleman is right that we need a proper debate in Parliament and proper scrutiny. However, there are concerns about how the Home Secretary has set the matter out today. For example, the motion represents neither primary nor secondary legislation, so it is not clear whether the Home Secretary wants it to trump case law. She spent some time reading individual cases on to the record, so we can only assume that she wants the motion and today’s debate to trump case law and individual decisions. However, it is only a motion of the House. We have told her that we are happy to work with her on primary legislation to ensure that there is a proper legal framework.
Yvette Cooper
I will give way one last time, to the hon. Member for Perth and North Perthshire (Pete Wishart), who I know intervened on the Home Secretary.
Pete Wishart
Is it the right hon. Lady’s understanding that what the motion asks us to do—she is absolutely right that it is neither primary nor secondary legislation—is sign up to the Home Secretary’s immigration rules applying in their totality unless the shadow Home Secretary and her colleagues introduce another motion to challenge them?
Yvette Cooper
That is not what the motion says. It deals simply with an issue of principle about whether Parliament should be able to set out how article 8 is interpreted. Various lawyers have said that the motion is little more than a statement of fact and is effectively the equivalent of the Home Secretary regarding the immigration rules as compliant with article 8.
That is what the motion does, but it is not clear whether the Home Secretary expects us to endorse the detailed content of individual immigration rules, only some of which she discussed in her speech—many were not discussed. She referred, for example, to foreign criminals. The Opposition believe that the Government’s broad approach to foreign criminals is the right one—we think it is right to take stronger action, including through the immigration rules and the Border Agency—but this process is not appropriate as a general rule for the scrutiny of the content of immigration rules. For Parliament to attempt such scrutiny just two sitting days after the rules were published would be inappropriate, and it would be unlikely to reassure the courts that the detail had been properly scrutinised and debated.
In particular, today’s debate cannot be about the detail of the wider family immigration rules, which were published only last week. Further scrutiny will be needed, because there are concerns about whether the rules are the most effective way of protecting the taxpayer, and whether they are fair and just. Those concerns should be debated properly, but that cannot happen in a debate on a general motion.
The motion refers simply to the broad immigration rules and cannot suffice as proper scrutiny or endorsement of the changes to individual rules. The Opposition are happy to support the Government’s approach to tackling foreign criminals, because we believe that more action needs to be taken, including through the immigration rules. We also believe the Government are right to consider how to ensure that article 8 is interpreted. In that way, they can provide a framework of guidance when it comes to dealing with foreign criminals through the immigration rules.
There is a wider challenge. The Home Secretary’s reason for introducing the motion was that she is concerned that more foreign criminals should be deported. She will know that the number of foreign criminals deported in 2011-12 fell by nearly 18%. If all those in the cases to which she referred—the 185 cases that the Home Office said were granted appeal on article 8 grounds—were instead deported, the number deported in the most recent financial year would still have fallen by around 15% on the previous year. Whatever the Home Secretary’s intention, the motion still deals with only a small minority of cases involving foreign criminals.
The border inspector has made it clear that one of the main reasons why people are not being deported is difficulty in obtaining travel documentation. Everyone recognises that that can be difficult and untimely in some cases, but those practical operations have clearly become significantly worse since the election, which is a deep concern. The Home Secretary has said nothing today to answer those concerns or to address the growing concern that the Border Agency’s performance is deteriorating substantially on the Government’s watch.
The Opposition want to be able to support the Government’s approach to tackling foreign criminals, but we need more answers from the Home Secretary about what she hopes the motion will do.
Mrs May
There is a very simple question for the shadow Home Secretary. Does she believe it is right that, as the courts have said, Parliament should give a clear view on what the public interest is in relation to the operation of article 8 of the European convention on human rights, on the right to a private and family life? If she believes that that is the case, and that fewer foreign criminals should be allowed to stay in this country on the basis of article 8, she should support the motion and give a clear message to the courts. I am beginning to think that she is trying to confuse the courts and to prevent them from taking that interpretation of the motion. Does she support a clear message to the courts or not?
Yvette Cooper
The Home Secretary talks about clear messages, but she is not giving a clear message to the House, never mind to the courts. She has been confused at every step about what the motion is supposed to do. Time and again, she has been asked whether it is supposed to trump case law or endorse the details of individual immigration rules, on which no opportunity for proper scrutiny has been given, and which have not even gone through the normal processes in the House. It is not clear whether this is supposed to be an endorsement of the existing immigration rules or the future immigration rules. She has not made her position clear.
We would like to be able to support the Home Secretary in her principled statement that article 8 should be discussed by the House and is a matter for legitimate debate. We also want to support her in taking action to deport more foreign criminals, but we urge her to do something about the real problem, which she is still ignoring. She also needs to provide answers to the House about how the detail on other aspects of the immigration rules, particularly on family and other parts of her proposed immigration changes, will be scrutinised, and whether she is trying to bypass the normal scrutiny processes.
The Home Secretary has not chosen a normal approach today. She needs to do more to deport more foreign criminals, but she should not try to subvert normal processes and should be straight with the House about what she is asking it to do.
Jeremy Corbyn
On a point of order, Mr Deputy Speaker. In her speech, the Home Secretary referred extensively to rules laid before the House but not prayed against and therefore not debated. Is it in order for us to discuss the contents of those proposed rules, because that is exactly what she did throughout her opening speech?
Mr Julian Brazier (Canterbury) (Con)
I shall be fairly brief. In one sense, it is a pleasure to follow the right hon. Member for Normanton, Pontefract and Castleford (Yvette Cooper), because I would like to pick up one or two of her points. Her speech started as though it would be bipartisan but ended on an extremely partisan note.
A couple of background points should be made immediately. First, under the previous Government, there was a surge in net immigration quite unprecedented in our country’s history. Even according to official figures, more than 2 million more people entered the country than left it under the last Labour Government, but given that border controls had largely broken down and we were no longer measuring embarkation, there is a range of statistics and estimates suggesting that the numbers might be much higher. For example, the Office for National Statistics keeps on revising up its population projection statistics. In 2004, it said that by 2050 the UK population would reach 67 million, but it now says that in just 15 years, it will be 73 million—twice the increase.
Secondly, the shadow Home Secretary made much of the number of deportations of foreign criminals, looking particularly at a single year. The statistic she did not share with the House is that the number of foreign criminals in British prisons almost trebled under the Labour Government, from 4,000 to more than 11,000. That should concern us all.
Graham Jones (Hyndburn) (Lab)
Is that not actually a good statistic showing that the police were catching criminals and locking them up?
Mr Brazier
The hon. Gentleman is obviously not familiar with the statistics. The number of criminals in the criminal justice system, or in prison, rose by between 20% and by 30%—I cite these figures from memory—over that period. The fact that the number of foreign criminals trebled suggests that much was wrong with our border controls at the time.
I strongly support what my right hon. Friend the Home Secretary is trying to do. She and the Minister for Immigration, my hon. Friend the Member for Ashford (Damian Green), my constituency neighbour who is sitting next to her, have taken a brave stand in this area, against a great deal of criticism by much of the media and many parts of the legal establishment. My concerns about what we are doing are all to do with the fact that we are not going far enough. They are in no way about opposing what we are trying to do.
My first concern is one that I mentioned in an intervention on my right hon. Friend. Experience from a number of other areas of law—not least family law—suggests that the courts might drive a coach and horses through what we are trying to achieve by putting the words “except in exceptional circumstances” in each of the relevant places. An alternative would be either simply not to include those words at all, or to say that in exceptional circumstances cases should be considered again by the Home Office.
My next concern is about the way in which we are looking at the rights of children. I hope that most Members of this House—at least those who have been here for a while—will be aware of the amount of time I have spent pursuing the concerns of the most disadvantaged and vulnerable children, particularly in adoption and fostering, and the way in which child witnesses are treated in court. I have to say that the most colossal amount of garbage has come out of some of the court cases. The idea that it is somehow automatically in the child’s interests that a parent who is also a violent criminal who has committed a serious criminal offence should be kept in the country, whether or not the child has regular contact with that parent, seems extraordinary. In many cases it is in the child’s interests that that individual should be deported.
My next concern is that although we are taking a tough line with foreign criminals—something I strongly support—I would urge my right hon. Friend to consider applying some of this thinking more widely. A large proportion of the people who are in this country illegally came in through a perfectly legal route and have chosen to overstay. Two of the most common types of cases involve those who came in on student visas and overstayed—I represent the largest number of students in any constituency in the country—and those who came in on family visits and overstayed. By allowing the courts to continue treating each case on its own merits, from scratch, we are making it harder and harder to justify allowing people to come in for perfectly legitimate reasons.
We want to encourage students into this country, and of course people should be able to come in for family weddings and all sorts of other reasons. However, if it is possible for them to bring an article 8 family connection case after they get here, every time someone who has relatives in this country comes here as a student—I am dealing with one such case at the moment, through my constituency postbag—and every time someone who, by definition, has relatives in this country comes over for a family wedding, Home Office officials will inevitably look at those cases with a jaundiced eye. There is a strong case for saying that if those who come in through certain routes then want to make an article 8 application, they should be able to do so only after they have left the country, applying through the normal routes, irrespective of any exceptional circumstances.
I want to make only one wider point. We get few opportunities in this House to debate the wider issues around immigration. I know from my experience on the doorstep, not only from working in my constituency but from helping in a number of others—in the general election, in local elections and in the marvellous election that has just delivered Boris Johnson as Mayor of London again—that people are deeply concerned about the wider issues around immigration. I am fully behind everything that my right hon. Friend the Home Secretary and my hon. Friend the Minister for Immigration are trying to do in this regard, but we are a long way from meeting the target, and the target itself seems to regard elderly couples retiring to live in the sun as somehow a balance for young people from areas with very high birth rates coming to this country. We have a very long way to go.
I want to end by saying that we must be clear on one central point. This is an important measure and we must send a message to the courts that it is we in Parliament, not the courts, who are answerable to the people. The courts must therefore listen to what we have to say.
Mr Jack Straw (Blackburn) (Lab)
The hon. Member for Canterbury (Mr Brazier) has just said that he wants the House to discuss the wider issues of immigration, and I entirely agree with him. The immigration rule changes, to which the motion refers in a coda, go much wider than simply the interpretation of article 8 in respect of the deportation of foreign criminals. I would say, parenthetically, to the Home Secretary that while I support many of the other changes, I remain concerned about some of them, not least the removal of the right of appeal in family visit cases, which I introduced in the late 1990s. That measure has worked well and fairly, and in my experience it has led to abuse in very few cases. I therefore support the motion before the House in the context in which it has been brought forward—namely, to deal with the problem of the deportation of foreign national criminals.
The particular case that got me heavily involved in this matter as a constituency MP was the death in a motor accident of young Amy Houston. She was walking with her brother in Newfield drive in my constituency when a vehicle driven by an asylum seeker, Mr Mohammed Ibrahim, knocked her down and killed her, although she was alive for six hours after the event. He drove off without stopping or giving up any details. Amy’s bereaved father, Paul Houston, lives in the constituency of my hon. Friend the Member for Hyndburn (Graham Jones), who will give the House many more details of the case.
That asylum seeker, an Iraqi Kurd, was convicted of a series of offences arising from the accident. He had no driving qualifications, he was driving while disqualified and uninsured, and driving without a valid test certificate. Subsequently, he was cautioned by the police for the possession of cannabis and for burglary and theft. He was again convicted of driving while disqualified and uninsured, and, six years after the accident, convicted of the offences of harassment, damage to property and theft, for which he was fined. In 2008, he was also arrested and fined £200 for offences arising from a dispute with the woman he subsequently claimed to have married. I shall call her Mrs Smith, as there are children involved and I have no wish to involve them.
That man’s rights of appeal were completely exhausted, and he was due to be sent back. When the matter went to appeal—at Mr Houston’s behest and mine—to an immigration judge, one of the points that the judge regarded as acting in the man’s favour was the fact that the Home Office had made no effort to deport him between 2002, when his right to remain here was exhausted, and 2006. That was because it would not have been safe to deport Mr Ibrahim to Iraq at that time, for reasons of which everybody was aware. Notwithstanding that, it was decided that the relationship he had formed with Mrs Smith, by whom he had had two children, was sufficient to justify a family life entitlement under article 8.
I have to say—I and my right hon. Friend the Member for Kingston upon Hull West and Hessle (Alan Johnson) looked at this—that the evidence of a successful family life was very flimsy indeed. There was total confusion in the court about whether the two had been married and where the marriage had taken place—in Blackburn or Birmingham. Those two places are different and separated by well over 100 miles. There was dispute about the date. On her own admission, Mrs Smith visited this man only once during the nine months in which he was detained as an immigration detainee.
At the behest of my right hon. Friend, the former Home Secretary, there was a further appeal. We had hoped that the courts would use this as a test case to change the law in the direction that the current Home Secretary now rightly seeks. I regret to say that, sadly, that did not happen. As a result, I strongly believe that the only alternative, however imperfect, is to bring forward this motion and try to get a change in the approach of the courts.
I want to apologise to you, Mr Deputy Speaker, to the Home Secretary and to the House, because I have to leave shortly before 6 o’clock. I also apologise to the Minister for Immigration, as I shall not be in my place to hear his winding-up speech—unusually, in my case.
In saying all this, I make no criticism of the judiciary who dealt with these cases. One thing I learned from much contact with the senior judiciary is that precisely because the system rightly sees itself as subordinate to Parliament but does its best to interpret Parliament’s will, the courts sometimes get caught by precedent. As senior members of the judiciary sometimes told me in respect of other cases, unless there is an appeal that really hits the spot, which they can then sort out, the only remaining course is sometimes for Parliament to seek to clarify the law.
Mr Cash
I am most grateful. In dealing with the critical question of proportionality, which is what arises in these cases when a balance needs to be struck by the courts either way, does the right hon. Gentleman agree that, in the absence of very express provision, it will be impossible to fetter the court’s discretion—even with a steer from the wording—in the determination? The evidence is that individual judges will tend to continue to make their own judgment, whatever Parliament seeks to say.
Mr Straw
I am afraid that I do not accept that. A feature of our courts is that they are, quite properly, very conscious of the need to apply the law as they believe Parliament has laid it down. I am confident—I cannot be certain—that, had this proposed approach been passed by Parliament and if necessary enshrined in legislation, the courts would have been able to exercise their judgment on proportionality in a way that showed proper respect to the Houston family and to that poor child rather than to Mr Ibrahim and the woman with whom, in my judgment, he formed a relationship solely in order to evade immigration control and deportation.
Mr Brazier
The right hon. Gentleman is generous in giving way. He is also generous-spirited in saying that he makes no criticism of the judge concerned, in the light of that truly extraordinary judgment. Does he accept, however, that if the motion is passed and such cases continue to arise, it will be time for parliamentarians to start to criticise judges?
Mr Straw
I think that it is a matter of style. It is perfectly right and proper for Members of Parliament to dissent from what the courts have said, as I do here, but I do not think it proper for them to insult or abuse members of the judiciary. It is the essence of our democracy that we have a separation of powers, and that can work only if each side respects it.
My final point is one that I put briefly to the Home Secretary when she made a statement, and it concerns the ending of the confidentiality of judgments in cases such as this. There is good reason for asylum cases themselves to be confidential; indeed, we are bound to that by the 1951 Refugee convention. However, I do not believe that when someone has failed in an asylum case and subsequently seeks something very different, it is right or in the public interest for the whole of the judicial determinations—pages of them—to be effectively kept secret.
It was only by accident that I got hold of that judgment. I was asked by the Home Office not to disclose it to Mr Houston. It was an extraordinary circumstance. Confidentiality in such cases means that the argument that the judiciary come up with is not open to the public scrutiny that is essential if our law is to apply itself properly.
Kris Hopkins (Keighley) (Con)
Thank you, Mr Deputy Speaker, for giving me the opportunity to contribute to what I think is a very important debate. My hon. Friend the Member for Canterbury (Mr Brazier) spoke of the importance of the issue of immigration on the doorstep. Time and again, we hear concern and anger at the frustration that the Government experience when they attempt to deport someone who has committed a serious criminal act.
Ours is a very generous country, which rightly offers the hand of friendship and help to people wherever they may come from. That has been demonstrated by our commitment to international development, and also by our top record on asylum. It is important for us to start from that position. However, I believe that we as a nation have a right to set out the rules on immigration, and to determine migration into this country. That is why I support these rules and the measures that the Government have already taken, such as capping economic migration from outside the European Union, introducing minimum skills, closing the tier 1 general route that has allowed self-selecting migrants to come here without a job, reforming the student visa system, and setting a minimum income for those who wish to bring a spouse or family member here.
I know that some people in my constituency find that last measure upsetting, and they have made representations to me, but why should the British public have to bear that financial burden? If someone wants to come to this country—which is a great country—and gain from all the services, facilities, democracy and freedom of speech that it provides, that person should be required to meet some minimum standards.
We have been revisiting the citizenship test, and I think it important that British history and culture are at the centre of it. Now we are rewriting the immigration rules to help prevent article 8 of the European convention on human rights from being abused, and I think that important as well. I want criminals to be deported from this country as soon as possible, and I welcome the fact that we have removed 4,500 in the last year. I take the point made by the right hon. Member for Normanton, Pontefract and Castleford (Yvette Cooper), and I look forward to the Government’s explanation about the variation of 1,000. I want every single person who can be deported to be deported.
Each incremental change that we make is important. We should not stop reminding individuals that it is a privilege to come to this country, live in it and gain citizenship of it. Those who abuse that privilege should lose it. The last Government lost control of migration, and they lost public confidence in our border controls. We have a huge responsibility to right that wrong.
Although, as we have mentioned, immigration is raised constantly on the doorstep, in our mail boxes, in the pub, and wherever I go as a politician, only a small number of Members are present to contribute to today’s debate. If people do not engage in public debate on the issue because of the stigma associated with it, I would say to them that it is not racist to debate immigration. It is important for us to contribute our voice, take ownership of immigration issues, face up to the fact that policies have failed in the past, and enable the public to be confident about the fact that we take responsibility. If we do not, fascist organisations will step into the void that we have created by not discussing these issues.
Mr Brazier
My hon. Friend is making a powerful speech. Does he agree that it is supremely ironic that the one major public figure who has had the strength of character to say that many decent people have ended up voting for horrible organisations such as the British National party because they have given up on mainstream parties is our noble Friend Baroness Warsi?
Kris Hopkins
I think our noble Friend makes an extremely important contribution to the debate.
Debating this matter is an essential part of the democratic process, and I want to encourage more people to do it. We wince at the language that is used, but let us get over the issue of language: let us have the debate in all parts of the country, and give people confidence by doing so. The debate has provided an opportunity for the will of the House to be seen, and I look forward to voting in favour of the motion.
John McDonnell (Hayes and Harlington) (Lab)
Unfortunately the Home Secretary is not present, but let me place on record that I have a good deal of time for her. I think that her speech a few years ago about “the nasty party” was incredibly courageous. [Interruption.] I was trying to make a wider point. I think that it helped to change a bit of the culture of politics in this country. However, I am extremely disappointed in the process that is taking place today. I no longer know what we are debating, or what the purpose of the debate is. If its purpose is to establish some form of credentials for the House—to cause the courts to acknowledge statements in the House and thus, to an extent, shape their judgments in the light of the debate—this is not the way to go about it.
Normally we would debate legislation, and the legislative proposals would be published in good time. Often, as one of my hon. Friends pointed out, those proposals would be presented to the relevant Committee of the House, which in this instance would probably be the Joint Committee on Human Rights. We would receive a report, a legislative proposal would be debated in the House in some form, and then, as a result of a vote, legislation would be enacted. That is the way in which we not only legislate, but shape the interpretation of legislation by the courts.
Pete Wishart
Like the hon. Gentleman, I am totally confused about what we are voting for this evening. There have been three explanations of what the vote at 8.30 pm will entail, but the danger is that we may be voting for the immigration rules in their entirety, as laid out last week. That is unacceptable to me, and I am sure that it is unacceptable to the hon. Gentleman.
John McDonnell
Let me finish the point I was making, which is that this is an object lesson in how not to go about influencing others, and certainly not the courts. The immigration rules’ legislative proposals were published only a week ago, and there are 45 pages of amendments to what is an even more detailed document. I ask Members who have read all that material to put up their hand. For the benefit of Hansard, I note that one Member has raised their arm—or perhaps two.
Mr Cash
As an assiduous reader of these documents, may I mention that the Journal Office has advised that the use of an approval motion for such rules is normally subject to negative procedure, although that is not taking place in this instance, and the contention that Parliament’s view is subject to review by the courts is also surprising in the context of article 9 of the Bill of Rights? The Clerks have clearly therefore taken on board some serious points regarding the procedure that is being followed.
John McDonnell
I heard those points when they were made previously, and the House of Commons Library note provided to us describes this as an unusual process—I put it no stronger than that. We are having this debate only a matter of days after having received the detailed and complex documents to which I referred, and I simply do not understand the reason for this haste.
Moreover, the first section of the motion is a statement of the obvious; article 8 is, indeed, a qualified right. It then tries to inveigle us into a commitment to support the immigration rules that we received only a few days ago, and which have not been debated. That is an unacceptable attempt to bounce the House into agreeing to something that many of us have genuine concerns about.
We would welcome a wider debate. I know this might sound unusual, but, frankly, I want to consult my constituents on the matter. I want to understand their concerns about these new rules. My anxiety is that we are now entering a political phase. During some Members’ speeches, certain other Members were suggesting, “Well, vote against the motion.” I want nothing to do with this motion, but they were shouting and bearding people about voting against the motion—[Interruption.] I do not think the hon. Member for Crewe and Nantwich (Mr Timpson) has been in the Chamber since the beginning of the debate, has he?
John McDonnell
I apologise and withdraw that comment, therefore, but there were definitely shouts of, “Well, vote against it.” Such behaviour draws us into the realm of political knockabout, when we should be having a considered debate about the legislative proposals, and what that results in is clear to anybody who has seen the Daily Telegraph campaign currently being waged, in which it is naming judges and publishing their performance in individual trials. It is saying how many people those judges have deported over the last period. This is taking the form of a witch hunt, therefore, and it is an unacceptable attempt to influence the judiciary. I agree with the hon. Member for Keighley (Kris Hopkins) that there needs to be an honest debate about immigration, but to drag things down into a political knockabout on how to vote on a motion that is irrelevant in respect of any legislation is unacceptable and clouds the atmosphere in this House, and thereby undermines its ability to influence any law court or judge.
The procedure the Government have introduced today completely undermines the credibility of the House on this matter. We need to get back to the normal processes of legislation. We need to ensure Members have the necessary information well in advance of any debate, rather than having it in the curtailed time scale that we have experienced on this occasion—and that is particularly important in this instance, as the matter under discussion is very complex, and very sensitive as well. The full procedures of the House should be followed, including referring the matter for consideration by the relevant Committees of the House which will then report back, and giving Members the time to consult their constituents and then to come to a considered view and arrive at a decision on a vote. That vote may well prove to be unanimous, because people will feel they have been fully involved. No court can interpret this current process as expressing the definitive will of the House, however, because many Members will have not a clue what we are voting on as the information has been provided so late.
Mr Cash
I just wonder whether the hon. Gentleman noticed that the Home Secretary referred to the fact that as yet nobody has placed a prayer of annulment to the immigration rules. I understand the rules were introduced into the House only on 13 June. I therefore suspect that, in the event of such a prayer being put, he has the option—and the right—to call for a vote on the substance of the rules.
John McDonnell
That is exactly the point I was about to make. It is important that Members take their responsibilities seriously and that the motion is prayed against. That will enable us to go through the due process of this House, so we can arrive at a decision that Members will feel party to, and that then will have some substance and significance in influencing future judgments in the courts—taking into account, of course, the separation of powers.
Today’s debate is almost a waste of time. It will be looked on as an embarrassment to the House. If we want to improve the standing of MPs and the Houses of Parliament within our community, this is not the route we should be pursuing. I therefore want nothing to do with this motion. I want my position recorded very clearly. I oppose the motion and I wish to get back to a process of legislating whereby every Member feels fully involved—and involved in a process that is serious and significant, not trite as in this instance.
Mr Dominic Raab (Esher and Walton) (Con)
It is a pleasure to follow the hon. Member for Hayes and Harlington (John McDonnell), although, unlike him, I welcome this debate and the serious way in which Ministers have identified and targeted the issue of article 8 undermining deportation, especially in relation to foreign national criminals, but also, increasingly, in relation to other elements of our immigration controls. It is worth putting the specific problem of article 8 into perspective. The European convention on human rights was never intended to have any extra-territorial application at all. It was certainly not intended to fetter deportation in any way. That much is very clear from the travaux préparatoires of the convention, all of which are in the public domain.
All of the restrictions have arisen through judicial legislation. Judges in Strasbourg and the UK have stretched existing rights to restrict our capacity to deport. That is contrary to both the separation of powers and basic democratic accountability. It is a serious constitutional matter. It is for elected Members of this House, not unaccountable judges, to decide whether British human rights need to be upgraded from the ones we signed up to in 1950. I should say that, for my part, as a matter of principle and as an elected representative, I support upholding the absolute prohibition on torture. Some will disagree, but I think it is wrong to deport anyone into the arms of a torturing state. On the question of what the right balance might be in terms of deportation and human rights, however, it must be for elected law-makers to decide whether we are going to raise the bar. Politicians can, perfectly respectably, disagree on where the bar should be set, but democrats cannot disagree that it is for legislators to strike that balance.
The fact is that the European Court of Human Rights has been legislating since the 1970s. In the notorious Chahal case in 1996 it was decided that Governments could not deport terrorist suspects if there was a substantial risk of torture in the country to which they were to be returned, but Strasbourg has gone much further. We see new fetters placed on deportation, most recently in the Abu Qatada case. The House will recall that Qatada’s deportation was barred by Strasbourg not because he faced the risk of torture—that was rejected—but because he might not get a fair trial in Jordan. That is a very dangerous precedent. It cannot be Britain’s responsibility to ensure that the justice systems of the world meet British or European standards. Again, it is not for Strasbourg to expand the fetters on deportation through judicial legislation.
Jeremy Corbyn
Surely the hon. Gentleman is rather overreaching himself here. This country signed the UN convention against torture, as one of many countries that did so, and it therefore specifically becomes part of UK law and there is precedent for that. So deporting somebody to a regime that does not accept the convention against torture and therefore might torture them would be illegal under UK law, leaving aside what might happen to them when they were sent back.
Mr Raab
I thank the hon. Gentleman for his intervention, but he made so many leaps of legal logic that I could not possibly follow them all. The fact is that Strasbourg’s application of a bar on deportation when the individual is at risk of not having a fair trial in their home country is not set out in the UN convention against torture and is not in the European convention on human rights; this is something that Strasbourg, of its own whim, created. The number of appeals by Qatada, at home and in Strasbourg, makes a mockery of the rule of law.
That said, by far the biggest problem we face on deportation arises as a result of the new restrictions under article 8 and the right to family life. If we are being honest, we cannot blame that on Strasbourg, because these are home-grown restrictions; they are a direct result of judicial legislation by UK courts under the previous Government’s Human Rights Act, beyond even the high tide of judicial legislation in case law that has come from Strasbourg. As a result of the Immigration Minister’s direction, the Home Office has produced data showing that 400 foreign criminals a year defeat deportation orders on article 8 grounds. That represents 61% of all successful challenges to deportation orders and this is by far the biggest category.
These cases are not just statistics; they involve real lives. Many shocking cases have been reported in the news, and I wish to refer to just one, that of my constituent Bishal Gurung, a waiter from Esher who was brutally killed by a gang, with his body dumped mercilessly in the river Thames. The perpetrator was convicted of manslaughter and later released. He frustrated his deportation order by citing his right to family life. Let me make it clear: he had no wife, no children and no dependants, yet still he claimed that his family ties trumped the public interest in his deportation. The House can imagine how Bishal Gurung’s family felt about that, and we can imagine what they feel it says about British justice. Now I can at least tell them that the Government and the House of Commons are trying to tackle the problem and reform the law.
Mr Denis MacShane (Rotherham) (Lab)
We all encounter cases where members of constituents’ families have suffered as a result of the most brutal crimes and wish the most terrible justice to be placed on those who committed the crimes—if they are British, they of course stay in our courts and within our country. What I am worried about is: what happened to the principle of not visiting the sins of the father on the child? In the case the hon. Gentleman cites there was no family, but in many cases these men have married British women and have sired British children. Do those children and those wives have no right to have a life, after the sentence has expired, with their father and with their husband?
Mr Raab
The right hon. Gentleman makes a very important point. He crystallises things cogently, but in this case there were no dependants, so what he says does not apply. This is an interesting case. There are many examples where someone has committed a vicious, violent crime—it might be murder or, as in some cases, a sexual offence—has had a child in the meantime and has coerced members of the family, putting them under duress, so that they give evidence, which this person has then relied on to stay in this country. I challenge the view that it is always in the best interests of a child to be with a father of such character and background, but it is very difficult for a court to make that determination when they have evidence in front of them.
I shall discuss one case, which is the most skewed and perverse that I have come across. There are reporting restrictions on it, so I shall be careful about talking about some of the details. It involves an individual raping his partner and then claiming that relationship as part of the family life that he relied on to stay in this country. Many people would regard that as both legally unsustainable and morally perverse.
This is not just about the deportation of foreign criminals; it is about the shifting goalposts of article 8. It is very important to understand that the state of the law now—that static snapshot—is not the sole issue; it reflects years of development. My worry is about the direction in which things are headed. I worry that it will be increasingly impossible to apply border controls, be they in relation to the deportation of foreign national criminals or to other aspects of coalition policy, including cracking down on things such as forced marriage, increasing language requirements or dealing with sham student visas and bogus colleges. All those things will come later because the goalposts will keep shifting. That is a real danger for this Government and for future Governments.
Mr Cash
In his excellent, extremely well researched and powerful speech, my hon. Friend has not yet referred to the manner in which section 6 of the Human Rights Act 1998 impinges on this question. When I was shadow Attorney-General and I invoked our party to repeal the Human Rights Act as part of our policy, it became the policy up to and including the general election. Does he agree that nothing will stop the courts striking down immigration rules as a disproportionate violation of article 8 if they decide to do so?
Mr Raab
I thank my hon. Friend for his intervention. If he is patient, he will find that I will come on to deal with exactly that point, but I wish to avoid duplication at this moment.
I shall now deal with the points made by the shadow Home Secretary. She clearly knows little of the history of this problem or has conveniently forgotten it, so let me remind the House that this problem has been created by the Human Rights Act that her Government introduced. In fairness, there is an additional element to this, because the previous Prime Minister at least recognised that there was a problem. The House may recall his barnstorming 2007 conference speech in Bournemouth. His biggest cheer came when he vowed, all misty eyed, that
“any newcomer to Britain who is caught selling drugs or using guns will be thrown out. No-one who sells drugs to our children or uses guns has the right to stay in our country.”
As a result, we got changes, including the UK Borders Act 2007, to which the shadow Home Secretary referred. Section 32 of that Act deals with the deportation of foreign national criminals—so far, so good. However, by including an express reference to the Human Rights Act in section 33—something that was totally unnecessary and a matter of political choice—the previous Prime Minister, far from strengthening our capacity to deport, fatally weakened our capacity to deport. Ultimately—this is the point that my hon. Friend the Member for Stone (Mr Cash) is making—primary legislation trumps the Human Rights Act, but not if that Act is expressly written into the relevant statute. That may sound like a technical point, but it is crucial to understanding what went wrong with the 2007 Act. The former Prime Minister emasculated his own deportation law, and that speaks volumes about the expediency with which Labour has approached this debate. I believe that the shadow Home Secretary will be a bit less pious about this issue and will perhaps eat a little more humble pie before the House—I am sure that the shadow Immigration Minister will do so. [Interruption.] We live in hope.
I welcome the changes and the motion, but there are questions about whether the changes to the guidance and a mere resolution of this House can deliver the reform we need. I put that precise question to the Lord Chief Justice in November, when he appeared before the Joint Committee on Human Rights. He made it clear that without primary legislation the courts would probably not rein in the expansion and application of article 8 in deportation cases. So I would be grateful if the Minister said what the Government will do if these changes are not fully effective, as at least Government Members hope they will be. Does he agree that if we cannot stop the rot, we will need a new UK borders Act to deal with this issue clearly, categorically, once and for all? It is vital that we can measure the success of the proposed changes we are debating today. Will he ensure that the Home Office now records the number of deportation cases frustrated on human rights grounds, with a breakdown in respect of articles 3, 6 and 8—the main offenders—so that we can measure, see and scrutinise whether this problem gets better or worse as a result of the changes being introduced? The Home Office has not routinely recorded those data. The Immigration Minister went out of his way to ensure that it produced a single quarterly snapshot in 2011—I welcome that and commend him for it—but can he reassure us that that information will be routinely recorded from now on?
Human rights reform is contentious and it needs to take place on three levels: reform of the Strasbourg court; replacement of the Human Rights Act with a British Bill of Rights; and UK legislation to strengthen our border controls.
For my part—others might feel differently—I recognise that our coalition partners are sensitive about the Human Rights Act. I accept that we are unlikely to see the reform that I would like to see in this Parliament and I have already made clear my commitment to the absolute prohibition on torture. I cannot understand, however, why anyone except the lawyers, non-governmental organisations and academics who have made an industry out of human rights would die in a ditch to stop the deportation of serious criminals because it might disrupt their family, social or private ties. To me, as I have said, that suggests a skewed moral compass, not just legal chaos for our border controls.
The changes we need require primary legislation, but we do not have to touch the Human Rights Act to solve this specific problem. It can be done by statutory amendment. I hope that the proposals before us today will tackle the problem—they have my full support—but, if they do not, I hope that all parties will agree to consider very seriously the case for amending the UK Borders Act. We need to draw a line in the sand, to restore democratic control over the criteria for deportation, to stop the ever-expanding list of legal excuses used by some of the worst criminals to stay in this country, to protect the public and, above all, to restore their confidence in British justice. We will do that only by injecting a healthy dose of common sense back into the increasingly perverse application of our human rights law.
Pete Wishart (Perth and North Perthshire) (SNP)
Sometimes, I do not know why we bother. We all turn up for these debates. All those who take an interest in home affairs and issues such as human rights are here, and you are here in your finery, Mr Deputy Speaker. We have heard a very confused speech from the Conservative Secretary of State and we have heard from Labour Members, ever compliant on human rights and home affairs. We have not heard from the Liberals; I do not know whether we will, but I would be interested to hear what they have to say. We are all here, but we are all more or less wasting our time. Why not just get on with it and get The Daily Telegraph, along with the Daily Mail, to conduct our immigration policy? That is what we are getting, with immigration rules that are practically out of The Daily Telegraph’s leader column.
What an absolute farce this afternoon has been. What on earth are we debating? I do not have a clue. We have had three different explanations from the Government about what we are being asked to consider. We are asked to consider that article 8 is a qualified right. Yes, that is a restatement of the bleeding obvious, as I said earlier, and we all know that. We are then asked to support the Government’s immigration rules. Does that mean the immigration rules in their totality, as the Home Secretary said when I intervened, or part of them? Or are we just giving a direction to the judges? I have absolutely no clue whatsoever what we are being asked to consider this evening. It is a total waste of time and a farce. As the hon. Member for Hayes and Harlington (John McDonnell) says, we need a proper process to consider this very important subject—and it is important.
Pete Wishart
I do not know whether the hon. Gentleman is being helpful, but that seems to be another interpretation. When he sums up, the Minister for Immigration must tell us exactly what we are voting on this evening, because I do not know. I cannot support the immigration rules in their totality, so if the Government are saying that we have to accept them tonight, I unfortunately cannot support them and will press the matter to a Division. We cannot accept the rules as they stand. This is a very important debate condensed to four hours and a lot of nonsense.
Jeremy Corbyn
Like the hon. Gentleman, I am confused by much of the debate. Would his interpretation be that whatever the outcome of the rather odd motion the Home Secretary has tabled, it cannot by any stretch of the imagination be construed as an approval of the rules, a direction to courts or as anything other than a vague statement from the Home Secretary of whatever she happens to believe in today?
Pete Wishart
The hon. Gentleman might be right—I do not know. We need to hear from the Government exactly what we are voting on. The Home Secretary made three different attempts to tell the House what we will be voting on tonight, but we are no clearer. At some point, we will need to hear from the Government exactly what they are asking us to support. If they want us to support the full rules, I cannot do that. It is a Conservative assault on article 8 and I will not be able to support it this evening.
We need a considered debate on immigration. Hon. Members who have spoken are absolutely right that the matter concerns our constituents, but in Scotland we do not share the Daily Telegraph, Daily Mail, right-wing Tory view of immigration. Scotland consistently sees these issues differently. Scotland’s population is at an all-time high, but only a few years ago we had great concerns that it was going to fall below the iconic 5 million mark for the first time since the 20th century. That was a real and absolute concern that has been addressed by immigration. We see immigration as something that is valuable to our communities and that is there to be cherished, grown and developed. The minute people set foot in our nation, they are new Scots. They are integrated from day one and that is why we do not have such problems.
Mark Reckless (Rochester and Strood) (Con)
Will the hon. Gentleman therefore confirm whether, were Scotland to become independent, it would have its own independent border service?
Pete Wishart
You betcha. We have been observing what has been happening in the UK Border Agency and it is a textbook guide of how not to do to it. It is a nonsensical agency; it is dysfunctional and gets things absolutely wrong. I look forward to the day when we exercise control over our own immigration policies, so that we can have policies that are designed for and suited to our demography, our economy and our population. Right now, our population is at an all-time high because of immigration and we see that as good and positive.
Mark Reckless
Just to clarify, is the hon. Gentleman presuming that an independent Scotland would be part of a common travel area in the way that the Republic of Ireland is? If so, can he be certain of that—
Mr Deputy Speaker (Mr Nigel Evans)
Order. We are straying way off the matter under consideration.
Pete Wishart
Thank you, Mr Deputy Speaker.
We are here today to consider changes to article 8 of the European convention on human rights, which will effectively define the basis on which people can enter or remain in the UK based on their right to a family life. The motion is a revelation, almost declaring that article 8 is not an absolute right and that it is therefore okay to interpret it in any way that the Government want and for them to give guidance to that effect.
The Government are determined to have their way with the judiciary and to tell it how to interpret these provisions. Why bother even having a judge? Why cannot the Home Secretary and the Minister for Immigration do it themselves? We will have an end to judges performing the delicate balancing exercise they carry out every day in these tribunals and courts will now be dictated by the Secretary of State.
The Home Secretary has set herself quite an ambitious deadline. She has pledged by the end of the summer to end the abuse of the right to a family life by people who should not be here. She has been egged on by the “end the human rights” brigade, whom we see every day in the right-wing press, on the Conservative Back Benches and on the Labour Front Benches. They paint an extraordinary picture of our inner cities, inhabited by marauding foreign national murderers who in the evenings go home to their luxury penthouse flats, probably paid for by benefits and taxpayers’ money, and spend time on the phone to any one of the lavish lawyers who invent any kind of bizarre excuse to show that they have the right to a family life in the UK. That is the picture painted and the pretext behind the assault on article 8 that we are seeing today, and it is all utter nonsense.
Do you know the reality of the question of the right to a family life, Mr Deputy Speaker? Let me tell you. It is not about the marauding foreign nationals about whom we hear every day from the Conservative party. It is about the people whom we see in our constituency surgeries every day when we deal with their cases, who are separated from their families because of the inflexible rules and their rigid application of those rules by the UKBA.
Mr Tom Harris (Glasgow South) (Lab)
I am sorry to interrupt the hon. Gentleman’s rant, but can he explain whether he shares the general feeling of repulsion held by most Members of the House about the example of the failed asylum seeker who was responsible for the death of a 12-year-old girl, left the scene of that crime and used his right to a family life to remain in the country? It is of course a small example, but does he understand why we feel such revulsion? Does he understand why ordinary people feel revulsion? Does he accept that one does not have to be a Daily Telegraph or Daily Mail reader to be revolted by that example?
Pete Wishart
I am grateful to the hon. Gentleman for giving me the opportunity to say absolutely that such people have no place in our country and should be dealt with efficiently and effectively, but article 8 allows the judiciary to do that. What the Government want to do is dictate to judges exactly how they should interpret these cases. I am all for getting rid of all the murderous, mayhem-causing foreign nationals we hear about every day—it is absolutely right that we do that—but let us talk about what actually happens on the ground in our constituency offices and the day-to-day routine cases.
There is a fantastic case in Scotland just now concerning a man called Gary Boyd, who is the deputy head teacher at Kirkwall grammar school in Orkney. He has just returned to his native Scotland after an absence of five years with his Australian wife of nine years. She is having to return to Australia with her eldest son to reapply to come back into the UK because of the way in which the rules have been interpreted by the UKBA, with no flexibility but total rigidity. She had indefinite leave to remain and was out of the country for a long time and did not know that she had to reapply to stay here. She is now off to Australia. What that means—we are talking about the right to family life—is that she will be separated from her husband for six months. Their eldest son is supposed to be sitting his O-levels next year, but he does not know whether he will now be sitting them because of having to go to Australia, and we do not know whether their youngest daughter will be able to start nursery education at the end of the year. This is the reality of the right to a family life and these are the things we should be considering—the rigid rules being applied by the UKBA.
Mr Tom Harris
I am sorry to interrupt the hon. Gentleman again but the example he has just cited has absolutely no relevance to the motion before the House. We are talking about deportation cases, but he is not talking about deportation. He is talking about a couple who did not obey the rules that are applied to every single other person in the country. Will he admit that he is not talking about a deportation case?
Pete Wishart
I am grateful to the hon. Gentleman once again because he gives me another opportunity to restate that this is the reality—the things that we have to deal with in our constituency offices day in, day out. Yes, we see the headlines in The Daily Telegraph and yes we are appalled by the actions of some foreign nationals. Yes, such people should be deported, but if we are discussing, as we are this afternoon, the right to a family life, this is the reality—the stuff we deal with day in, day out. That is the stuff that needs the real attention.
Who can forget where all this started? It was the hilarious speech by the Home Secretary at the Conservative party conference when she—I am not making this up—cited the example of a Bolivian man who was allowed to remain in the country because he owned a cat. Of course, the Home Secretary is never one to unleash the cat among the pigeons. That ridiculous story had the Justice Secretary twitching in his Hush Puppies. He said at the time that he was willing to bet it was not true, and he was absolutely right because the Home Secretary’s story unravelled faster than a condemned pasty shortly after her speech.
Mr Raab
Has the hon. Gentleman read the case to which he is referring? I do not think he can have because the cat was a relevant factor—not the decisive factor but a material one—in the relationship between the boyfriend and the girlfriend, which was relied on in this case. Has the hon. Gentleman read the case?
Pete Wishart
I am grateful to the hon. Gentleman. I have been following his campaign with great interest, but I think he has ruined it totally with that intervention.
Pete Wishart
Of course I have read the case. The hon. Gentleman has ruined his campaign totally. He has conducted a great campaign in some ways, because it has attracted a lot of attention, and good luck to him because he has managed to secure all these fantastic column inches in all the right-wing newspapers, but he has done himself no justice with that intervention.
When the Home Secretary made her statement the other day, I asked her about these other rules that we now have to consider, which I believe we are now being asked to support. They include the measure that a family has to come up with a minimum income guarantee of £18,600. In the statement, I asked the Home Secretary why there is a flat rate across the whole United Kingdom and why there are not different rates to reflect the different incomes in other parts of the UK. In Dundee, there is a different standard of living than in London docklands—that just makes sense. She said that it would not be possible to impose different rates across the UK. What absolute rubbish. That happens in Australia. The Australians have different immigration rules for different states and they seem to get along perfectly well. All we would need to do is license people. If there was an agreement for someone to come to one part of the UK, they would have to stay in that part or lose their right to stay here and be arrested and deported. That is simple, straightforward and could easily have been done, but the Home Secretary decided that was not for us, and now everyone across the UK has to have at least £18,600.
Even if that sum is secured, the partner is now likely to be stuck in the purgatory of a probation period of five years rather than the current two. If one is foolish enough to have children, the required income level rises substantially. We are told that this is to prevent migrants from sponging off the state, but Government statistics show that foreign-born people are less than half as likely to claim benefits as those who were born here. The measures will force families to choose between staying apart or moving abroad.
The Home Secretary ridiculously says that these immigration policies are not about numbers, but if they are not, why have the Government imposed the arbitrary cap that is already doing such damage to our universities, colleges and one of the few sectors of our economy that is actually booming?
The Minister for Immigration (Damian Green)
I think the hon. Gentleman is very confused. He is talking about a cap on universities but there is no cap on student numbers in this country. There is a cap on work visas, which is nothing to do with universities.
Pete Wishart
I am grateful to the Minister. He has received representations from countless educational institutions right across Scotland that have told him again and again about the damage that his immigration policies are doing to our university and college sector. I wish that he and the Home Secretary would respond positively and do the right thing for our universities and colleges, which are suffering in Scotland because of these Tory immigration policies.
This is such a Tory solution. There is one rule for the rich immigrant and another for the poor, forcing an estimated 15,000 families a year to emigrate or live apart. That is heartless and it gives the lie to the Tories’ manifesto claims to support what in their words is society’s building block—the family.
We will not do things this way and we look forward to getting the levers of immigration. We have observed what has happened down here and it does not work. We have seen the chaos of the UKBA and we will not do the same. We will make sure that Scotland is a welcoming, accommodating place when we have the levers of immigration at our disposal. I was at one of our national conferences at the weekend and I listened, consecutively, to an Italian Scot, an Asian Scot and a Frenchman who declared himself a new Scot and a European. Such people all contribute to the Scottish economy and to our community and culture. They have enriched Scotland. When we secure the full levers of immigration we will design a system that will attract the best and the brightest and we will address our demographic and population concerns. I cannot wait for that day when we will get rid of the Daily Telegraph, Daily Mail right-wing Tory nonsense determining our immigration policy here.
Priti Patel (Witham) (Con)
I was interested to hear the contribution of the hon. Member for Perth and North Perthshire (Pete Wishart), and particularly his analysis of immigration and what Scotland might look like under his vision of immigration.
It will come as no surprise to the House that I, as a British Asian, follow all things immigration with a degree of interest. I not only welcome this debate but applaud the Secretary of State’s statement to the House last week and congratulate the Government on bringing forward this motion on the application of article 8. I say that in relation to everything the motion is promoting.
For too long our immigration system has, as my hon. Friend the Member for Esher and Walton (Mr Raab) highlighted, been left open to interpretation, abuse and the failures of the previous Government to address many issues. Here we are addressing the issue of foreign national offenders and lawyers using human rights as an excuse—the wrong kind of excuse—to cause a range of problems and undermine public confidence in this country’s immigration and criminal justice policies. As has been mentioned, not only did the previous Government fail to address many of the problems that have been touched on today, but their inaction made the situation far worse, which makes the challenge faced by this Government even greater.
Few things have been more damaging to public confidence or caused as much division as what has been perceived as the open-border policy pursued by Labour, which left our borders subject to the consequences of uncontrollable immigration. This is no doubt why, throughout my time as a Member of Parliament, short though it has been thus far, and before then as a candidate, immigration has been one of the most pressing concerns in my constituency when I have been out knocking on doors. Instead of feeling safe and protected by a system that manages immigration responsibly, my constituents have little or no confidence in our ability to protect our borders. It falls upon the shoulders of this Government to redress that balance now, as they are doing.
My constituents are left astounded, shocked and appalled by judgments made under article 8 or other human rights laws that have allowed foreign criminals to walk our streets and commit crimes. We have already heard about some of those crimes this afternoon. My constituents know full well that the immigration and the legal systems defy common sense when criminals such as Mohammed Ibrahim are able callously to kill a young girl and then rely on human rights laws and claim a right to a family life to avoid being deported.
On top of that, the European Court of Human Rights has been blocking us from deporting Abu Qatada. We have had the issue of prisoner votes in this country. All this highlights how powerless Parliament has become when faced with the onslaught of human rights case law. What these decisions by immigration tribunals and judges do is demonstrate that the human rights laws that they are following alongside case law value the rights of criminals over the rights of the law-abiding majority and the victims of crime. They also undermine the entire immigration system, including those who come to this country who are self-sufficient, want to be British, want to contribute to our economy and, importantly, want to abide by this country’s laws.
It is therefore absolutely right that the Government pursue the changes not only to rebalance the immigration system, but to prevent these outrageous and appalling abuses from happening in the future. It is fundamentally important to our democracy that Parliament is able to hold the courts to account and lay down guidance and rules for them to follow. I urge Ministers to press ahead, regardless of some of the hollow criticism that we have heard, because the public expect the Government to act on such issues, to put in place proper controls on immigration and to put an end to the appalling way in which human rights laws have been subject to interpretation.
The Home Secretary rightly said this afternoon that coming to Britain to live and settle is a privilege. When foreign nationals break our laws, show scant regard for our way of life and put the law-abiding majority at risk, they should expect to be deported. They have wilfully chosen to offend, and in those circumstances they have chosen to forfeit their entitlement to remain in this country. The Home Secretary can be assured of my support and the support of my constituents as she presses ahead with these important reforms. This is a positive and welcome motion, but on the wider issues of immigration and deportation, I would like to see further steps. The public expect more proactive steps forward.
We have heard about the 5,000-plus foreign national offenders who were deported last year, but 11,000 remain in our prisons. Under the present rules it is almost impossible to deport some of the 4,000 who are of European origin. I would like to see the motion taken further, although that is not the subject of the debate today. In a future system foreign prisoners who need to be deported should go straight from jail to a plane. That would go a long way in reassuring our constituents and increasing confidence in the system.
I support the motion and hope that it will be the first of a number of positive measures to bring power and decision making back to this Parliament so that we can regain control of our borders and regain public confidence when it comes to human rights issues in this country.
Mr Tom Harris (Glasgow South) (Lab)
I begin by offering support to my hon. Friend the Member for Hayes and Harlington (John McDonnell), who is resuming his place in the Chamber. He is right to express concern about the purpose of the debate and the purpose of the motion on the Order Paper. I have a lot of time for the Immigration Minister, and I know that he will have taken those comments seriously. I expect that in his summing up, he will want to explain to the House why we are here today and what precedent he expects the motion to set—or what precedent has already been set at some time in the past that leads him to believe that the discussion of the motion will have a substantial effect on the decisions of judges in the future.
Before I continue my remarks, I should like to comment on the contribution from the hon. Member for Perth and North Perthshire (Pete Wishart). It was a misjudged contribution. He repeatedly referred disparagingly to right-wing papers such as The Daily Telegraph and the Daily Mail. Actually, there is a troika of right-wing newspapers. Everyone knows that they are The Telegraph, The Mail and The Sun, but the hon. Gentleman did not mention The Sun or any News International newspapers. I cannot think why. Apparently the right-wing press is now limited to The Daily Telegraph and the Daily Mail.
The hon. Gentleman also showed utter contempt for the citizens of England by suggesting that Scots, unlike the English, are welcoming of immigrants, and that every immigrant to Scotland is integrated into Scottish life as of day one—I think that was the expression that he used. Naturally, he is entirely wrong. Scots, like citizens in the rest of our country, are tolerant and welcoming, but like those in the rest of the country, we value fairness. Support for immigration in Scotland does not extend to support for open-door immigration of the kind proposed by the Scottish National party.
Pete Wishart
I do not know whether the hon. Gentleman has had a chance to look at the Scottish Social Attitudes survey that was carried out in the past year. If he has had a look at it, what does he make of it?
Mr Harris
I can tell the hon. Gentleman that, unlike him, I speak to constituents all the time, and I know that my constituents have exactly the same view as citizens throughout the United Kingdom. They want to welcome asylum seekers, they want to welcome immigrant communities, but they want a sense of fair play that applies equally across the border. Scots are no more or less tolerant of foreign-born criminals remaining in the UK than are our fellow citizens unfortunate enough to live south of the border.
Now that the hon. Gentleman has had a chance to calm down and get his breath back, I would like to ask him whether, if Scots throughout the country are some sort of homogenous entity, all thinking the same thing, he can explain why the only local authority in Scotland that applied to welcome asylum seekers was Labour-controlled Glasgow—not Perth, not Edinburgh, not another local authority anywhere in Scotland, just Glasgow?
As has already been highlighted, the deportation of foreign criminals is more often frustrated by bureaucratic process than by appeals under article 8 of the Human Rights Act. My concern today is that some Members of the House and many members of the media—yes, the right-wing media—are using the relatively small number of appeals under this part of the Act to make the case for the Act’s repeal. That would be unacceptable. It is important that the debate focuses on the reasons behind the failure of the Government—and, yes, the failure of previous Governments—rather than on the straw man of the Human Rights Act.
Nevertheless, it is a concern to all our constituents when someone who has enjoyed British hospitality, and who has chosen to repay that hospitality with contempt for our law is allowed to remain in the UK. My understanding—perhaps the Immigration Minister will be able to clarify this in his summing up—is that the interpretation of article 8 as representing an absolute right to a family life is a peculiarly British interpretation. My understanding is that other judiciaries operating elsewhere in the EU under the European convention on human rights attach a significantly different interpretation to article 8—one that more frequently allows the deportation of foreign criminals.
The Government’s own policy on the circumstances in which deportation would not be appropriate—for example, if the person had lived here under valid terms for at least 15 years—deserves some attention.
My right hon. Friend the Member for Blackburn (Mr Straw) has already referred to the shocking case of Aso Mohammed Ibrahim, who in 2003 was responsible for the death of 12-year-old Amy Houston in a hit-and-run incident in Lancashire. Mr Ibrahim is variously described as an asylum seeker, a failed asylum seeker and an illegal immigrant. In fact, only the last term is correct. He arrived in the UK in 2001 and was refused refugee status, so he was never—not for one second—a refugee, and his appeal rights were exhausted by the end of 2002.
It is not the Human Rights Act that is to blame for the fact that too many criminals are allowed to remain here; it is the failure of the UK Border Agency to remove illegal immigrants in far greater numbers, and that should concern the House. Of course I accept the point made by my right hon. Friend the Member for Blackburn, who is a former Home Secretary, which is that on many occasions we simply cannot return people to their country of origin because it would not be safe to do so.
However, I have come across many constituents who have been in the country for eight or 10 years, applied for asylum and had the application refused, but who regard the refusal simply as an indication that no decision on their case has yet been made. They are wrong. They have been given the decision on their case: they have been told that they are in the country illegally and so should remove themselves. Far too often we allow time to march on and they do not make arrangements to remove themselves, but the UK Border Agency should remove them forcibly—I know that that process costs a lot—if they are not prepared to remove themselves voluntarily. I should point out that, although this debate has been billed as being about the scandal of permitting criminals to remain in the UK, the motion rightly refers only to migrants, not criminals.
I welcome the Government’s statement that one of the exceptions to the presumption that an individual will be deported is where an individual has been resident in the UK legally for 15 years. I hope that the Minister, in summing up, can confirm that the many thousands of individuals who have remained here illegally, ignoring decisions to refuse them refugee status, will not qualify under that exception as they have not been in the country legally. That issue is as pertinent to the cases of law-abiding immigrants as it is to criminals, and article 8 has been used to confirm the residency in the UK of many who have no criminal past and who are of less interest to the right-wing tabloids.
Countries across the whole UK are relocating, but our hospitality is sorely tested when people who come here either to seek refuge or to build a better life for themselves repay it by exhibiting contempt for our rules and, by implication, contempt for our citizens. Whether they have broken the law through an appallingly violent and callous act, as in the case of young Amy Houston, or by ignoring an appeal ruling that they have no right to remain here, the right to a family life cannot be absolute. The Government are right to say so. However, they are merely reflecting what the whole country already believes.
Yvette Cooper
On a point of order, Mr Deputy Speaker. The Home Secretary did not properly clarify earlier whether this motion is separate from the normal and proper debates on the different immigration rules. The Clerk of the Journals has now provided some clarification and reassurance that these are in fact separate. He has advised:
“The effectiveness of the statutory disapproval procedure for any particular Statement of Changes in the Immigration Rules laid before Parliament is a matter of law, which cannot be altered or over-ridden by any Resolution of the House of Commons.”
Will you confirm that that is indeed the case, because I think that would provide the House with important clarification and allow it to deliver a clearer message?
Mr Deputy Speaker (Mr Nigel Evans)
I thank the right hon. Lady for notice of her point of order. The legal effect of the resolution is not a matter for the Chair; it is a matter for the courts. But I can confirm that, as a matter of procedure, agreeing the motion would not prevent the tabling of any motion to disapprove a Statement of Changes in the Immigration Rules as provided by statute.
Mr Geoffrey Cox (Torridge and West Devon) (Con)
I had not intended to speak, but a number of matters have been raised on which, it seems to me, some light might be thrown. The hon. Members for Perth and North Perthshire (Pete Wishart) and for Hayes and Harlington (John McDonnell) both questioned the effect of what we are doing, and it is on that point that I hope to shed some light.
This is a limited, practical measure, and one that I support, but I do not hold out an enormous degree of hope that it will have a substantive effect on the exercise of the courts’ discretion. Section 3 of the Immigration Act 1971 provides that the Home Secretary can amend the immigration rules, and it provides for the procedure, by way of negative resolution, by which those rules can be challenged. If they are challenged, the Act requires the Home Secretary simply to consider the points that have been made on the resolution that has disapproved them and alter, as she sees fit, the executive administrative guidance that those rules contain. Today, an attempt is being made to give some democratic force to the alteration of the immigration rules, which the Home Secretary could otherwise have done simply by an Executive act, in the hope that it will communicate to the courts the fact that there has been some consideration by Parliament.
I take the view that that might well have some effect on the courts beyond the fact that they will attach a degree of weight to the Home Secretary’s opinion in any event. It is well established in the human rights jurisprudence that a decision maturely taken by the Executive—in this case a Secretary of State who has a wide range of advice available to her and who can consult experts in the field—to change the existing immigration rules would already be accorded a degree of weight by the courts when they are considering what is a proportionate decision in the application of a specific human right. What the Home Secretary is doing today, which, I submit, the House should applaud, is giving the House an opportunity to voice its opinion on the changes she has decided to make.
Chris Bryant (Rhondda) (Lab)
The key point, as I think the Clerks have already made clear, is that we are not deciding on the totality of the changes; we are deciding only on the basis of what is in the motion being debated today. I would not want the hon. and learned Gentleman to conflate the two by mistake.
Mr Cox
The courts are more than capable of appreciating that what we are dealing with here is not primary legislation. Primary legislation will be accorded a much greater degree of weight—some people use the word “deference”, but the courts have disapproved it—because there is usually a period of consultation, a Bill might have been scrutinised before it was even brought to the House and a wide range of interests will have been taken into account in the process of scrutiny. A court is more than able to distinguish between a piece of primary legislation and a motion such as the one before us and to see the scope that the motion considers. That is why I say that this process is likely to produce a degree—probably a very modest degree—of additional weight to be accorded to the Home Secretary’s discretion. Her discretion would normally be accorded a degree of weight by the courts, and the motion might add a little more to the changes to the immigration rules than they would already have been accorded.
It is not difficult to interpret what is being done here. It is perfectly valid. The courts will not be deceived or hoodwinked. They will see what we are doing. They will no doubt read, if they take the trouble to go that far down the pages of Hansard, the profoundly principled position that the hon. Member for Hayes and Harlington took when he held up his hands and, with a cry of horror, said, “Not with my assent.” But the reality is that the motion will lend some modest substance to the already substantial decision that the Executive and the Home Secretary have taken. She should be applauded for, and congratulated on, giving the hon. Member for Perth and North Perthshire the opportunity to mount that—one hon. Member described it as a “rant”; I should never be so impolite—extraordinary, eloquent and passionate diatribe, to which he treated the entire House from his position on the Opposition Benches, representing the Scottish National party.
John McDonnell
If the hon. and learned Gentleman’s argument is that what we are doing today is virtually meaningless, I agree, but where does that fit with Pepper v. Hart, which we have always used as the guide to what influences a court’s decisions, and which defines very narrowly how a reference to Parliament—in other words, to a ministerial statement that gives guidance on existing legislation—can be made?
Mr Cox
May I say first that it is not my argument—and the hon. Gentleman knows it. It is a forensic point, which does not do his subtlety and sophistication justice, to suggest that I am saying that this is meaningless. On the contrary, I am saying that it has meaning but we must not overestimate the meaning that it has.
Mr Cox
No! It makes a useful and practical contribution and is a useful measure that, to the extent that the courts are able to perceive what has gone on here, will no doubt provide a useful added measure of weight to the Home Secretary’s discretion. As for Pepper v. Hart, that is concerned of course with primary legislation and the detailed interpretation of individual clauses.
All that is being done here is that the courts are being invited to take note that the motion before us is not simply the executive fiat of the Home Secretary, and that the Home Secretary has put it before Parliament—much the same would have applied if it had been challenged under the 40-day procedure—and a debate about it has been held. Indeed, the courts in the past have examined motions and resolutions of this House and pointed out that they were merely resolutions, but they have not ignored them, and that is exactly what I expect will happen in this situation.
So the motion is perfectly reasonable. It is a laudable attempt to give this House the opportunity to have its say, and if I may say so there was a degree of pedantry from Opposition Front Benchers, who stood on their moral high horse and said, “This should have been primary legislation.” Of course it should not; the immigration rules already have a statutory procedure for amendment, through the Home Secretary’s laying them before Parliament. That is how they are amended, so we ought to avoid the forensic froth of suggesting that this is not a useful and practical—albeit, I accept, limited—measure.
There is no doubt that the Executive have the right, supported by Parliament in whatever measure they ask Parliament to support them, to put to the courts a degree of guidance on the exercise of the courts’ undoubted discretion to decide what is proportionate. This is not an attempt to fetter the courts; it cannot be. As my hon. Friend the Member for Stone (Mr Cash) has so often said, the courts are “unfetterable”. They will not be fettered by this House, and rightly so. The courts must exercise an independent, individual judgment.
There are other circumstances, however, in which the Executive seek to give guidance to the courts on what they consider proportionate in the circumstances. Let me give the House another example. The Home Secretary has a discretion to make an exclusion order against somebody outside this country whom it is not conducive to the public good to admit.
In—I think—2007 or 2008, what is called an acceptable behaviours policy was promulgated, setting out the general approach that a Home Secretary will take to what is a proportionate decision when people have made expressions that make them undesirable entrants to this country. That was done because, of course, article 10 on freedom of expression can be invoked, and the acceptable behaviours policy provides a broad framework for the discretion that the Home Secretary is to exercise in deciding whether to admit such a person who is guilty of such statements.
The sentencing guidelines are not dissimilar. They are guidance to a court on how a discretion might be used, but they are not binding: they cannot fetter the independent and individual judgment of the court. So, in my view, what is being proposed here is not without precedent in other areas. It is a limited, practical measure, and it is one that the House should strongly support, because there is a widespread belief among the public—sometimes wrongly held, as the hon. Member for Perth and North Perthshire has said, and sometimes a caricature—that the Human Rights Act is a shield for all kinds of disgraceful behaviour. The motion before us will do something to restore public confidence in the decisions that the courts make, and will demonstrate that the Government and this House are conscious that a change needs to be made. What will that do? It will assist the courts in striking the right balance and in achieving a degree of consistency, and, in my respectful submission, that is a wholly laudable aim to which this House ought to give its support.
Jeremy Corbyn (Islington North) (Lab)
I am grateful to the hon. and learned Member for Torridge and West Devon (Mr Cox) for making a wonderful speech, trying to convince the House that we are actually doing something useful when the Clerk has just explained to us that we are not doing anything very useful whatever. We are deeply indebted to the hon. and learned Gentleman, and the courts are the stronger for the ability to make that kind of argument—to make something utterly irrelevant seem important. It is a skill and a talent that, sadly, only some of us are able to possess.
The Home Secretary probably tabled this rather strange motion because she assumed that it would be a useful bone to feed to her Back Benchers, who are obsessed with the Human Rights Act, with the European convention on human rights and, in some cases, with anything to do with Europe. They follow their obsession every day in The Daily Telegraph, Daily Mail and Daily Express. Some of them even read The Sun, I believe, and they continue with that obsession.
We should be slightly more careful than that, however, because the European convention on human rights was established in 1948 to look to a future in Europe based on human rights and a respect for people, rather than on the power of the state to oppress people. We had come out of the Nazi period, the most horrible period in European history, so the popular press, which consistently reports anything to do with human rights as a laughable matter, should remember that many people owe their very lives to the existence of that convention and the European Court of Human Rights, which have had a good effect on many other countries.
The Home Secretary may be saying that immigration law trumps the Human Rights Act and the European convention on human rights, but article 8 has always been qualified and no one has ever disputed that. What would she and others say if the Hungarian Government made a similar statement, announcing that it absolved them of any need to be taken to the European Court of Human Rights for their treatment of Roma people and Traveller people in Hungary? We should think a bit more deeply about the causes of human rights abuse throughout Europe, and be a bit more sympathetic to the European Court of Human Rights and the European convention on human rights.
I shall not speak for long, because others want to get in and the debate is time-limited, but the Home Secretary placed in the Vote Office last week an explanatory statement on her immigration proposals, and it ranges far wider than the question of just deporting foreign criminals. It skates over the important issue of how children and families are treated in the right to family life. She has chosen to interpret that right in the narrow sphere of the individual—usually male—criminal who has served a sentence, left prison, is hopefully a reformed character and then asserts that he has a right to family life in the UK, giving stern warnings that she will not accept any of that stuff any more and they are going to be on their way. She might care to look at what the London School of Economics did in considering the effects of article 8, and what others have done in this respect.
Baroness Hale has said that a child cannot be held responsible for the moral failings of their parents. That is a profound statement that emphasises that children do have rights in these situations. They have rights not to be deported, and their parents have rights to enjoy the company of their spouse or partner. Surely that is what we should be looking at. What is the effect on those children of one parent being removed? Some of us have been through the sad experience of arguing that case on behalf of constituents. One partner and their children do not want to be removed to another jurisdiction, so they remain here knowing full well that the missing partner—the ex-prisoner—will not be allowed into this country for at least 10 years. That is a huge proportion of a child’s life and experience. We should be slightly more liberal and understanding about these issues.
Obviously in some of the extreme cases, such as that cited by my right hon. Friend the Member for Blackburn (Mr Straw), one would have no sympathy with what those individuals have achieved, but looking at extreme cases does not make for good law. A serious examination of the totality makes for a better example of good law. That is why I suggested that we should refer the whole issue to the Joint Committee on Human Rights.
Pete Wishart
As usual, the hon. Gentleman is making a powerful case. He, like me, will remember the debates of years ago when we argued the same type of case. In those days, we would be joined by the Liberals, but today we have heard not one speech by a Liberal Member on a very important issue that they used almost to scream about. We have not had even one intervention by a Liberal Member. Two of them came wandering into the Chamber, had a little look around, and disappeared again. Is the hon. Gentleman as surprised as I am that we have heard nothing from the Liberals today?
Jeremy Corbyn
I am sorry to disappoint the hon. Gentleman, but I cannot help him by describing what the Liberal Democrats are doing today, because I am not responsible for them. However, having been involved in a lot of human rights, anti-terrorism and immigration debates over the many years I have been in Parliament, I know that there are different allies in different Parliaments. Sometimes there are Conservatives one agrees with, sometimes there are Liberals one agrees with, and sometimes there is nobody one agrees with, but that’s life, and we plough on.
Mr Cash
The hon. Gentleman makes a good point, because he and I have agreed on several matters, including the Chagos islanders. May I offer him the thought that absence of the Liberal Democrats may have something to do with the lack of clarity in the motion? If it was as clearly expressed as I would like, notwithstanding the Human Rights Act and all that goes with it, I rather suspect that there might be some difficulty for those on the Liberal Democrat Benches, because they would want it to be less clear than I would.
Jeremy Corbyn
I thank the hon. Gentleman for his intervention. I respect him for standing up for his principles and acknowledge that he and I have agreed on quite a lot of occasions, particularly on the disgraceful treatment of the Chagos islands by all Governments over very many years. We hope that the European Court of Human Rights, which is now hearing that case, will come to a good judgment, which we expect imminently.
When I intervened on the hon. Member for Esher and Walton (Mr Raab) about the torture and ill-treatment of people in other jurisdictions, he did not agree with me, and that is fair enough; he does not have to. However, he should understand that the European convention was a very important step in improving human rights standards around the world. The principle of a continent-wide human rights court has been copied to some extent on other continents—for example, central America has such a court. The idea of an international convention such as the United Nations convention against torture is a very powerful one. That is why I disagreed so very strongly with Tony Blair, when he was Prime Minister, on his agreeing to the deportation of people to jurisdictions that had not signed the international convention on torture. That undermined the convention, damaged the human rights of the individual, and damaged us as a country that is supposed to stand up for human rights and justice.
I cannot really describe what we are debating today, and I do not think that the Home Secretary can either. I look forward to a full debate on her proposed immigration rules, because some of them will have a devastating effect on the family life of very poor people in this country who have migrated here, work hard, clean our floors, look after our children, drive our trains, and help our industries to get along. We should also remember that immigration in this country has helped to create our relatively high standards of living. It does the House no credit when people condemn all immigration as an economic problem. Immigration is an economic benefit to our society, and it is about time we publicly recognised that.
Mr William Cash (Stone) (Con)
I agree with what the hon. Member for Islington North (Jeremy Corbyn) said about some of the benefits of economic immigration, but there is something else that I would like to put on the record. As many of us know, the best way to keep a secret is to make a speech in the House of Commons. I sincerely hope that that does not apply to the speeches that I have heard today—particularly, if I may say so without any disrespect to Opposition Members, those by my hon. Friends the Members for Esher and Walton (Mr Raab), who made a superbly forensic speech, and for Witham (Priti Patel), and my hon. and learned Friend the Member for Torridge and West Devon (Mr Cox).
Although my remarks will not necessarily be entirely consonant with wholehearted support for these proposals, for reasons that I will explain, I still genuinely support the idea that it is important to give an indication of the Government’s views. A great deal of hard work has been put into this. The more I look at it, the more I realise that the Government’s advisers have really applied themselves to it. As we now know, the immigration rules were tabled on 13 June but have not yet been decided on by the House and will, I suspect, be subject to an annulment prayer because Labour Front Benchers will decide that that is what they want to do.
Irrespective of that general sense of support for these proposals, there is also a rather unfortunate element that was indicated in the excellent speech by my hon. and learned Friend. He said, using very carefully chosen words, that the proposals will create an impression or perception whereby, in some of the national tabloid press and elsewhere, they will be construed, as we have already read, as being simply about slamming criminals and unacceptable persons who should not be allowed in this country in the first place and should be deported. I think that that general perception has been conveyed and that, given that the best way to keep a secret is to make a speech in the House of Commons, the spin that is put on this will carry the day.
However, that will not affect the courts, which will make their own decisions. Moreover, the proposals are geared in the direction of indicating to the courts that the general will of Parliament is to move away from the free-for-all of applying Strasbourg precedents, and that Parliament is making a statement that must be had regard to. Indeed, in line with what I said in an intervention, that has been a matter of concern in the generality of judicial interpretation, which has been criticised by the Lord Chief Justice in a series of very measured speeches. On one occasion about two years ago, he strongly advised his brothers and sisters in the judicial profession in the High Court that the most important matter for a judge is to uphold the common law. I think that he said it in those terms. He went on to say that they had to be much more careful about not simply adopting Strasbourg precedents in the application of their judgments in English courts and, by implication, that they should have more regard to what Parliament has said.
This exercise is being conducted with great complexity. One only has to look at the new immigration rules, which I have in my hand, to notice that they contain strong gearing elements. Whether they will have any effect on certain members of the judiciary remains to be seen. Individual cases, some of which have been mentioned, raise difficult questions of family law and relationships. As has been said, we hear about such cases in our constituencies. I do not think that what we heard earlier was a rant. There is an important point here. I have been confronted by some difficult family issues in the field of immigration. We ought not to be dismissive of the importance of forming a proper and proportionate judgment about these questions.
Important questions have been raised in the debates in which I have taken part over the past few years on the interpretation of statute law. An example is the Jackson case, which was not to do with human rights in the same context as this matter, but was to do with interpretation by the judiciary. Tom Bingham, the late, lamented Lord Chief Justice, took to task two Law Lords in the Jackson case. He said not only in the judgment but in his speech that they were exceeding their role by asserting judicial supremacy over Parliament.
It is therefore essential that we pay tribute to the intentions that lie behind this exercise, while at the same time being clear that the proposals lack clarity. The intentions that lie behind this extremely careful operation will not necessarily produce the results that many people expect. Given the latitude that will still be conferred on judges and the rules of proportionality that have to be applied, I anticipate that there will be ructions down the line when the rules are applied by individual judges.
I suspect that the lack of clarity has something to do with the attitudes of some in government, some in the civil service and some in the higher reaches of the judiciary and in certain chambers, who have no doubt been consulted. It might also have some connection to the attitude that would have been adopted by the Liberal Democrats if they had been confronted with the kind of clarity that could be provided, but that certainly is not. I can do no more than speculate on that. When I pressed an amendment in the Lisbon treaty debates that stated, “notwithstanding the European Communities Act 1972”, on which 55 of my hon. Friends followed me into the Lobby with enthusiasm, despite the suggestions from the Whips that they should do no such thing, the Liberal Democrats said that if I had pressed the other amendment that I had tabled, which stated “notwithstanding the Human Rights Act 1998”, they would have supported it. I therefore ask whether we are always entirely clear as to what the Liberal Democrats are up to at any given point in time.
There is a further point regarding the motion, although I do not want to be too pedantic or legalistic. It states that article 8 is a “qualified right” and that
“the conditions for migrants to enter or remain in the UK on the basis of their family or private life should be those contained in the Immigration Rules.”
I hope that you will forgive me, Mr Deputy Speaker, for pointing out that as we are debating this matter today, on Tuesday 19 June, I construe those words to mean the immigration rules as they now are, not as they are anticipated to be under the proposals printed on 13 June.
On page 1 of the statement of changes, which I suspect will be debated, there is a provision titled “Implementation”, which states that, with the exception of an awful lot of paragraphs,
“the changes set out in this Statement shall take effect on 9 July 2012.”
The other paragraphs
“shall take effect on 1 October 2012.”
It goes on to say:
“However, if an application for entry clearance, leave to remain or indefinite leave to remain has been made before 9 July 2012 and the application has not been decided, it will be decided in accordance with the rules in force on 8 July 2012.”
Therefore, the new immigration rules will not, I am glad to say, have retrospective effect. The implication of the wording in the motion might not be as clear as it should be. That leaves us with the reasonable position that the motion relates only to the immigration rules that are in force at this time. That is a technical point.
I regard the proposals as a steer. The Government are hoping that they will succeed and I wish them well if it is possible for them to do so. However, I think that there will be difficulties of interpretation. The harder the case, the more likely it is that an individual judge will say, “I am not bound by this motion. I am bound by what the law says.” The law that they are construing, from 9 July and 1 October 2012, will be the new rules.
The explanatory memorandum states:
“The new Immigration Rules provide a clear basis for considering family and private life cases in compliance with Article 8. To accompany the new rules, a statement of ECHR compatibility is being published on the Home Office website”.
It goes on to say, although I doubt whether this can be taken for granted:
“The new Immigration Rules will reform the approach taken as a matter of public policy towards ECHR Article 8…in immigration cases.”
It goes on to say—the distinguished Immigration Minister is sitting on the Front Bench and knows this backwards:
“The Immigration Rules will fully reflect the factors which can weigh for or against an Article 8 claim. The rules will set proportionate requirements that reflect the Government’s and Parliament’s view of how individuals’ Article 8 rights should be qualified in the public interest to safeguard the economic well-being of the UK by controlling immigration and to protect the public from foreign criminals. This will mean that failure to meet the requirements of the rules will normally mean failure to establish an Article 8 claim to enter or remain in the UK, and no grant of leave on that basis. Outside exceptional cases, it will be proportionate under Article 8 for an applicant who fails to meet the requirements of the rules to be removed from the UK.”
Why have I bothered to read all that out? So far, none of it has been mentioned in the debate, but it is what we are actually debating. It is about whether the courts will be steered by Parliament and apply its decisions—hopefully the right decisions—as a matter of proportionality.
As a number of Members have said, article 8 already provides a qualified right. As ever, I am afraid that the qualification simply has not been explained. Article 8 states:
“There shall be no interference by a public authority with the exercise of this right”—
and then the crucial words, which the shadow Home Secretary conveniently left out—
“except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
The words
“except such as is in accordance with the law and is necessary in a democratic society”
prompt the very question that we have to debate. Until I hear the Minister’s reply, I have to say that we are doing so without any confidence that “the law” means the law of this Parliament.
In the democratic society in which we in this country live, those words must mean the law passed in this Parliament. In certain instances, that will exclude decisions taken by the judges in Strasbourg and/or principles adumbrated in Strasbourg but applied in our courts that are contrary to the views expressed by, for example, the Lord Chief Justice. In the context of article 8, it would be nonsense if “the law” meant anything other than the law of the United Kingdom.
We have to resolve that question in the interests of Parliament, which will decide how this country is to be governed. We must decide whether it is to be governed under the European convention on human rights. I believe that we should withdraw from the convention altogether, because we have been continuously besieged by interpretations of it that are contrary to the views expressed by the people of this country as a whole. We can perfectly well legislate to protect human rights, which I would be the first to defend, by passing appropriate laws in our own land according to our own wishes. Many of those laws may well be parallel, if not identical, to those passed under the convention and the Human Rights Act.
The reason I called for the repeal of the Act 10 years ago, when I was shadow Attorney-General, was precisely because of the mess that we are now in. I hesitate to say so, but I anticipated that we would be in this position, as I did over the Maastricht treaty. By keeping ahead of the curve, whether on the convention or the issue of Europe as a whole, we would have saved ourselves a great deal of trouble. We would have defended Parliament’s right to legislate on behalf of the people of this country, who in a democratic society have a right to govern themselves. That is the central principle at the heart of our Parliament. The debate raises questions about that matter but does not entirely resolve them.
I do not say that the courts should in any way be inhibited from making a decision based on their interpretation of the law. However, the law is made here. We have to decide what the law is, and it behoves us to make that law clear. In this case it could have been made clearer by our simply saying, “Notwithstanding the European convention on human rights and the Human Rights Act 1998, we legislate for these immigration rules accordingly.” There would have been absolutely no argument about that in the courts, because the courts would have had to say, “We have no option but to administer the law as laid down by Parliament.” That is the crucial issue at the heart of this debate.
Although I will support the general steer that we are providing, I am afraid that there may yet be difficulties and ructions further down the line, with the courts taking disconsonant decisions that are contrary to the intentions behind the rules, which are supposed to represent a clear basis but do not.
Mr Deputy Speaker (Mr Nigel Evans)
Order. The wind-ups will start at six minutes past 8. Three more Members wish to participate, so I ask Members to give some consideration to others.
Lisa Nandy (Wigan) (Lab)
I am grateful for the opportunity to raise my concerns about the impact that the immigration rules will have on children in particular. Before I came to this place I had the privilege of working with the Minister, and I know that he is committed to the welfare of children in the immigration system. We worked together to ensure that there was a commitment to ending the immigration detention of children, which has been hugely important to many children. We also both worked hard to ensure that the last Government extended the Children Act duty to those children, which is particularly relevant to today’s debate.
The statement of intent on family migration, which was published in advance of the new article 8 immigration rules to which the Home Secretary referred extensively, takes heed of the duty on the UK Border Agency under section 55 of the Borders, Citizenship and Immigration Act 2009 to have regard to the need to safeguard and promote the welfare of children while they are in the UK. Many of us fought very hard for that legislation, because immigration officials have been given increasing powers over the years without a counterbalance in law to ensure the protection of children. That section created a duty to consider a child’s best interests in decisions that affect them, and to weigh those interests against other considerations such as criminal convictions, which we have talked so much about today. That already happens in article 8 determinations.
My concern is about how narrowly a child’s “best interests” are defined in the statement of intent that was published in advance of the new immigration rules. It states:
“The best interests of the child will normally be met by remaining with their parents and returning with them to the country of origin, subject to considerations such as long residence in the UK and exceptional factors.”
During the many years in which I worked with refugee and migrant children in the Children’s Society, I dealt with many cases in which that was plainly not the case, as I am sure have other Members. I will give a few examples.
I dealt with countless cases in which girls would have been subjected to female genital mutilation if they were returned to their home country. I also dealt with the case of a young girl whose father was from Eritrea and whose mother was from Ethiopia. Huge consideration had to be given to her safety and welfare, given the state of relations between those two countries. There were also many cases of child abuse. One in particular really sticks in my mind. There was a child who we believed may have been subjected to abuse by her own parent, and in the end that did turn out to be the case. In that sort of occurrence, it is clearly not in the interests of the child to be removed with the adult. The Minister might say, “There is an exception. Discretion is written into the rules,” but my concern is that marking out a clear presumption that it is in the best interests of a child to be returned will direct UK Border Agency and court officials and deter them from making proactive decisions.
Since the tragic death of Victoria Climbié and the Lord Laming report that followed, we have come a long way in ensuring that all agencies, including the UK Border Agency, the courts and others, understand that they have a shared responsibility to safeguard children. That involves not only the reactive child protection approach, but a proactive approach. The measure might well unravel a great deal of the progress that has been made with the UK Border Agency and such children.
I am sure Ministers will say that discretion remains with the courts, even if there were no such concerns, but I share the view put forward forcefully by Amnesty International—that, effectively, the measure seriously limits the courts’ discretion. In the example I gave, if those factors had not been proactively investigated by UK Border Agency, it is hard to see how a decision to remove the child with the parent would be challenged in court, because the investigation would not take place and the evidence would not exist.
Furthermore, during the decade that I dealt almost daily with the UK Border Agency, I saw a culture that worked against the full investigation of human concerns. Little that I have seen since being elected to the House has convinced me that that has changed. In fact, if anything, with staffing cuts and increased pressure on UKBA staff, the situation is getting worse, not better. Case owners work to targets, and in particular to time-limited targets. Speed matters. Too often, there is a tick-box exercise rather than a full investigation of the facts. I have seen for myself how that tick-box exercise happens without a proper assessment of children’s needs prior to their detention. The Government rightly took a stance against that; I hope that they take a similar stance to protect children in respect of this measure.
When I worked for the Children’s Society, I was often called upon to deliver training for UKBA staff. One thing that struck me was their willingness to equip themselves with the skills and knowledge they needed to protect children, and to think creatively and more widely. However, people came to me time and again and said, “I’m really not sure that this is my responsibility. I am meant to be looking at so many other overriding concerns, including immigration concerns.” The child’s welfare and immigration considerations often conflict. The staff need clarity and certainty that the child’s welfare is a priority, and that they should not take actions to meet targets if it means that they do not fully and proactively investigate child protection concerns.
I hope the Minister considers that concern after the debate, but I am also concerned about the prescription in the statement of intent, which sets out that deportation will be presumed in cases involving criminality that results in a custodial sentence of between 12 months and four years unless the person has
“a genuine and subsisting parental relationship with a British citizen child or a child who has lived in the UK for at least the last seven years, and it would not be reasonable to expect the child to leave the UK with the foreign national criminal and there is no other family member who is able to care for the child in the UK”.
The seven-year rule, which no longer exists, was a useful indicator of whether someone had established a private life in the UK, but such detailed prescription surely has limits. I struggle to see how the seven-year prescription could be helpful to the courts. Why, for example, should a child who has been here for five years, who was born here and spent most of their life here, and who faces the prospect of returning to a country about which they know nothing, where they have no family and do not speak the language, have a less powerful claim to have established a private life than a child who has been here for eight years, but who faces the prospect of returning to country where they have family and people they know, friends and ongoing relationships, and where they speak the language? My concern is that the measure takes away the important ability to test the strength of the relationship ties that children have formed in the UK, which is the basis of article 8 decisions.
Moreover, I am concerned that hon. Members are being invited to make assumptions about the situation of children whom we know nothing about. We would never accept that for citizen children, and we should not accept it for non-citizen children. I urge Ministers to look again at the measure.
Graham Jones (Hyndburn) (Lab)
I rise to raise the concern of Mr Paul Houston, my constituent, who has been spoken of considerably in the debate. The case is familiar to all MPs. Mr Houston’s daughter died after being the victim of a hit and run by an asylum seeker, Aso Ibrahim Mohammed. Amy was left to die under the wheels of his car.
Mr Mohammed was granted leave to stay in the UK following his asylum case, in which he made the case for remaining here to protect his right to family life under article 8 of the Human Rights Act 1998. During the several years between the tribunal decision in 2010 and the crime for which Mr Mohammed served a paltry four-month sentence in 2003, he claimed he had established a new family with a British national and had two children with her here in the UK.
The delays in dealing with Mr Mohammed, in the words of Mr Houston, were no doubt caused by staff at the Home Office failing to find Mr Mohammed and an ineffective Border Agency. As my right hon. Friend the Member for Blackburn (Mr Straw) said, there were also problems with deportation to Iraq—Mr Mohammed is a Kurdistan national.
Mr Mohammed arrived in the UK illegally, hidden on the back of a lorry, on 31 January 2001 and claimed asylum on the same day. On 18 July 2001, his application for asylum was refused. He appealed the decision, but his appeal failed on 12 November 2002. During that period, Mr Mohammed had already been cautioned by the police for criminal damage. As a result of his failed appeal, the UK Border Agency issued a notice to Mr Mohammed that he was required to leave the UK by 28 November 2002. Had he left, the accident in which Amy lost her life would have been prevented and she would be enjoying life today.
The Houston family have never been provided with an answer as to why UKBA did not take effective steps so that Mr Mohammed was removed from the UK on that date or why he was not at least detained pending removal. When I spoke to Paul in my constituency office, he expressed his qualified support for the Human Rights Act, but he feels that judicial processes led to the perverse outcome.
The Government say the motion will send a signal to the courts, but I am not convinced that it will have any legal impact. Why are the Government not pursuing primary legislation? Mr Houston’s most significant concern about the interpretation of article 8 is not the parameters and guidelines laid down in immigration policy that are the basis for judicial judgment, but the process of determining claims under article 8.
According to the Home Secretary, the guidelines will state that deportation will not be proportionate if an individual has a
“genuine and subsisting relationship with a partner in the UK”.
My concern, and that of Mr Houston, is how tribunals arrive at the conclusion that an individual has such a relationship.
There are fundamental differences in the application of criminal law, as in the court case at which Mr Mohammed appeared in 2002, and the application of civil law in the asylum tribunals of 2010. I question the judicial process for determining a “genuine and subsisting relationship” as laid out by the Home Secretary. In criminal law, the evidence is tested beyond reasonable doubt. In the criminal case of Mr Mohammed, the Crown Prosecution Service was unable to present a case beyond a reasonable doubt that Mr Mohammed caused Amy’s death by the more serious crime of dangerous or careless driving, partly owing to conflicting statements. He was instead convicted for having no licence or insurance.
It is worth noting that Mr Mohammed had exhausted all asylum appeals to be in the UK during 2002, a year before the incident that cost the life of that young child. Mr Mohammed was released from prison after completing just four months of his custodial sentence in early 2004. At this point, he was still an illegal asylum seeker and had no right to family life in the UK, and should have been removed from the UK. What will the Home Secretary do to ensure that those who break the law in such circumstances, but receive less than the 12 months’ custodial sentence recommended in today’s guidelines by the Home Secretary, are still deported?
Subsequently, Mr Mohammed accumulated a number of criminal convictions and police cautions over the years, and it was not until late 2008—four years later—that the authorities caught up with him and brought about deportation instructions. What will the Home Secretary do to ensure that those who have entered a deportation process are deported, and further that in cases such as Mr Mohammed’s, people cannot circumvent their deportation through a subsequent appeal under article 8? I note with concern that the number of successful deportations has fallen by 18% in the last year.
By 2008, Mr Mohammed was entitled to make a fresh claim stating that to deport him would breach his right to a family life, and legal battles through the civil law system commenced. Following his release, this man has been convicted of possession of cannabis, cautioned for burglary and theft, convicted of driving uninsured, banned from driving and convicted of harassment. My right hon. Friend the Member for Blackburn also mentioned a dispute between Mr Mohammed and his former wife involving a £200 fine and his being bound over to keep the peace. This does not sound like a man enjoying a family life.
Mr Houston raises a key concern with the tribunal system—what he describes as the 51% rule of probability. Under this rule, circumstantial and anecdotal evidence allowed Mr Mohammed to win his tribunal case based on the balance of probability, rather than on what we have in the criminal justice system—the “beyond reasonable doubt” rule. During 2009-10, Mr Mohammed was allowed to present evidence in support of his claim through the upper tribunal for immigration and asylum. Mr Mohammed and his knowledgeable legal representatives only had to convince a judge that the evidence of his UK relationship was true on the balance of probability. My right hon. Friend the Member for Blackburn touched on the issues with the evidence submitted to the tribunal, which was flaky to say the least.
Such critical evidence should be tested beyond reasonable doubt. Mr Houston feels aggrieved that such circumstantial and conflicting evidence for the relationship of Mr Mohammed with a British national played a huge part in the judge’s granting him asylum under article 8. As someone sympathetic to the benefits of the Human Rights Act, Mr Houston believes that this is a ludicrous application of British law.
The Government need to do far more to deport foreign criminals. The problem with the motion is that it ignores the real problems of the chaos within UKBA. The Home Secretary may be well intentioned in desiring a fairer justice system, but what are her intentions for dealing with the problems caused by cases such as Mr Mohammed’s, particularly the acceptance of hearsay evidence in the decision-making process at tribunals? What does she intend to do to ensure that justice is seen to be delivered?
I understand that there is an opportunity to challenge and contest the statements presented at tribunals under part 32.14 of the civil procedure code against a person who presents false evidence. In Mr Mohammed’s case, however, there was no challenge, despite the evidence of his relationship being flaky and suggestions that there was an arrangement to the benefit of his asylum claim.
My right hon. Friend the Member for Blackburn spoke about the dubious evidence put forward by Mr Mohammed. I agree that it was simply a means of evading deportation under article 8. In cases where individuals use article 8, on the right to family or private life, and where claims are tolerated because of inefficiencies or delays by the Home Office in dealing with cases, hearsay evidence at a tribunal should be tested and challenged beyond reasonable doubt. Fairness is about not only interpretation or immigration law but the judicial process itself.
Jim Shannon (Strangford) (DUP)
I congratulate the Home Secretary and Immigration Minister on bringing this matter before the House. I fully understand the reason for the debate, but I hope that the clarification given in the letter that hon. Members have seen will ensure that there is no Division.
Everyone has a right to respect for his private and family life, home and correspondence, as many other hon. Members have said. This has been used by many people, however, to claim that anyone has a right to live and settle, with their family, where they choose and so can come to the UK, with or without a visa, to have a private family life. It must never be forgotten, however, that the right is a qualified not an absolute right, and that qualifications are essential in respect of immigration. We must therefore retain the right of the Home Secretary to control immigration through the rules already implemented and what is proposed today.
The Home Secretary’s clarification of the rules for the courts has assured me and, I hope, the House. The Human Rights Act was a good thing in principle, but once lawyers became involved, it changed, as is so often the case. I am reminded of that great and famous Shakespearean quote, “First kill all the lawyers.” That is a bit drastic, I know—I am not saying we should do it—but it is how many people feel when they hear some European judgments. The status of our judiciary has been perpetually challenged by the European Court in cases presided over by people with questionable experience making questionable rulings. As is often the case with Europe, we sign up to something in theory that turns out to be completely different in practice. That is our frustration with Europe and many of its rulings.
The ruling on the Abu Qatada case revealed that seven of the 11 top judges at the European Court of Human Rights had little or no judicial experience; one was 33 when appointed and had no senior judging experience. British judges go through years of training in the law before their application will ever be considered. To have such under-qualified people overruling our own judges is a slight, but worse still, it is dangerous and leaves us with our hands tied on too many occasions. That is the reason for this debate, I believe.
In the past, and even this very day, article 8 issues are being raised in asylum applications or as a basis for standalone applications for leave to remain in the UK. They have also been raised in appeals against deportation or removal. This was not the reason the article was created; it was not meant to be a free pass into the UK and the benefits of living in such a great nation. According to the Courts Service, in 2010, 233 people won their appeal against deportation, and of those 102 were successful on article 8 grounds. According to figures from the independent chief inspector of UKBA, however, in 2010, 425 foreign national prisoners won their appeals against deportation, and these were won primarily on article 8 grounds.
Whichever figures are right, the matter must be addressed, which is what I think the Home Secretary is trying to do through the motion. While our immigration rules should always take note of human rights issues, they must be based on the needs of the country, which must have the right to caretake those very rights. Article 8 is increasingly difficult to impose legally; it is time to get this right, which is what the motion does.
I have received correspondence from groups stating that the removal of paragraph 395C of the immigration rules is tantamount to sacrilege. That paragraph stated that no one could be removed from the UK if it would contravene the UK’s obligations under the Geneva convention on refugees or the European convention on human rights. It set out a range of factors that UKBA had to consider before deciding to remove a person from the UK and reflected the considerations necessary for assessing compatibility with article 8. Those considerations included the person’s length of residence in the UK, the strength of their connections with the UK, their personal history, their character and conduct, their domestic circumstances and, importantly, any previous criminal record.
Other briefings, however, point out that deleting the paragraph has not altered the UK’s obligations under the convention. We are still bound by the rules, but that does not mean that we cannot implement our own rules. In my view, we have not yet given our sovereignty to Europe. The Home Secretary has confirmed that there will be safeguards for those who have been subjected to torture in their homeland—an assurance that many Members have sought and received. I agree with the Home Secretary in asserting her right, and the right of every UK citizen, to have control over immigration in this country.
I am not by nature someone who scaremongers. If I were, I would be reciting the figures, which are screaming out for an immigration policy change. What I will say is that if we deny ourselves the right to allow or disallow people into the country, will there even be a United Kingdom in the future, or will we be like other countries that have put their trust in the European Union only to find themselves on the brink of demise?
Ben Gummer (Ipswich) (Con)
Several times in his speech the hon. Gentleman has referred interchangeably to the European Union and Europe when discussing the European convention on human rights. It is very important that we make the distinction in this House and in public, because the public are making the same association between the European Union and the European Court, and it is very damaging when trying to understand both institutions and separate them in the public mind.
Jim Shannon
I thank the hon. Gentleman for his intervention. Clearly we want to focus on where the responsibility for this issue lies.
I want to make a quick comment about what the hon. Member for Perth and North Perthshire (Pete Wishart) said. We agree on many things. I am a descendant from an Ulster Scot from the lowlands of Scotland, so I have an affinity with the Scottish nation. It is very obvious which papers he does not read in his house, but it is also obvious what his concerns are, and they are rightful concerns. I disagree with him on independence for Scotland, and I also disagree with him on the issue we are discussing, but I am sure that there are many other issues on which we will agree in future.
We have the right to make immigration control rules. As a nation, it is not in our nature to abuse human rights—that is not what this debate is about—and we will certainly not start doing that with these rules, especially when there is an underlying onus to consider the human rights implications in every decision our judiciary makes. I therefore support these rules and the guidance, as well as the clarification that the Home Secretary and the Minister for Immigration have provided. I believe they are necessary and important, and the people I represent want to see them in place.
Chris Bryant (Rhondda) (Lab)
I am grateful for the opportunity to speak in this debate, which I think we would all agree has been interesting. I note that several of the Members who have spoken are not in their seats, but I will none the less refer to their contributions.
The hon. Member for Canterbury (Mr Brazier) spoke about a great number of the wider immigration issues that he believed needed addressing. However, it is important to remember that that is not the subject at hand this evening.
My right hon. Friend the Member for Blackburn (Mr Straw) referred to a constituency case, involving Mr Mohammed, to which my hon. Friend the Member for Hyndburn (Graham Jones) also referred. I think everybody would agree—the Home Secretary tacitly referred to this, albeit without naming the case—that that case is one of the most heinous examples of where it has felt as though the judges were out of step with public opinion, and certainly the opinion in this House. I do not think that one has to be a supporter of The Daily Telegraph or the Daily Mail to hold that view; it seems to me a fairly commonsensical one. Indeed, my right hon. Friend and my hon. Friend detailed what were some pretty horrific incidents and the way in which fairly flimsy excuses were used to remain in this country.
The hon. Member for Keighley (Kris Hopkins)—he, too, is not in his place, so I hope that I do not misrepresent him—said, “I want to see all criminals deported as soon as possible.” That would return us to a rather 19th-century understanding of what should happen to criminals in this country. I think he meant that all foreign criminals should be deported as soon as possible, but—[Interruption.] I think that returning to what happened to the Tolpuddle martyrs would—
Chris Bryant
No; we, at least, are certainly not reviewing it.
However, the hon. Member for Keighley did say something with which I wholeheartedly agreed. He said that it was not racist to want to debate immigration. I have said this at the Dispatch Box before, and I will say it again: just because someone wants to talk about immigration does not make them a racist. There are certainly some people who want to talk about immigration because they are racists, but I believe that everybody has a perfect right to debate this issue, and we should be able to do so calmly and reasonably.
My hon. Friend the Member for Hayes and Harlington (John McDonnell) expressed a view about the motion before us which I think a lot of us had come to when he said, “I no longer know what this debate is about,” and when he referred to the unusual process that has been used. I will refer later to why I think this is not the process for us to go through. I think we have come to a much greater understanding of what the legal implications will be of the decision we take this evening, but he was right to highlight the fact that some of the water had been somewhat muddied by earlier contributions.
Chris Bryant
We did not have a Liberal contribution—I was going to point that out earlier—but I am sure that the Liberals will be reserving their position for when they form a Government on their own, without the Conservative party.
The hon. Member for Esher and Walton (Mr Raab) made a thoughtful contribution, as usual. He was right to say that the European convention on human rights was never originally intended to have any kind of extra-territorial effect. However, I would merely point out to him that it was not intended to have any effect on whether homosexuals could serve in the military in any country in the United Kingdom or how marriage law should be interpreted. There are undoubtedly aspects of how the ECHR has been interpreted by the Court in Strasbourg that have been significantly beneficial, not only to people in the United Kingdom, but to people in Russia and other signatory countries.
The hon. Gentleman also referred to the shifting goalposts of article 8. That is another area where there is some agreement across the House, and certainly between the two Front Benches. He also pointed out that it would be difficult to be precise about what constituted success in the terms to which the Home Secretary referred at the beginning of the debate. How will we know whether what we are doing today has been successful? It is difficult to be precise.
I would not call the speech by the hon. Member for Perth and North Perthshire (Pete Wishart) a rant, but it had—
Chris Bryant
I would not call it that, either. I thought the hon. Gentleman’s speech was just wrong, and in some areas inappropriate, although he did unite the House in condemnation of himself—I think that is mostly what he seeks to achieve in politics—so it was quite a success.
The hon. Member for Witham (Priti Patel)—again, she is not in her place—spoke about a whole range of wider immigration issues. All I would say is that today’s debate is not about those wider issues; rather, it is about the specific set of issues that are incorporated in the motion—a motion that is tightly drawn and does not have any papers tagged to it.
My hon. Friend the Member for Glasgow South (Mr Harris) did a very good job of demolishing the argument of the hon. Member for Perth and—is it “Perth and Perthshire”?
Chris Bryant
I see; otherwise, I would have thought that it was a rather tautological name for a constituency.
My hon. Friend is absolutely right: many of our constituents, in many different parts of this country—in Wales, just as in Scotland and England—have significant concerns about matters relating to the deportation of foreign criminals, and they want them addressed better in the criminal justice system.
I always enjoy listening to the hon. and learned Member for Torridge and West Devon (Mr Cox), not least because I see him as a very successful barrister, and I am aware that there is a convention in this House that if an hon. Member were to ask another Member who practises at the Bar to represent them in court, that Member would be required to provide their services, free, gratis and for nothing. I therefore look forward to him representing me one day in some action, free, gratis and for nothing. [Interruption.] I think he is mouthing something at me, but I am not quite sure what it is. I know that he was seeking to be helpful to the Government and to support the direction of travel in which they are moving, but I noted that he said, “I do not hold out an enormous amount of hope.” I think he was referring to whether this proposal is going to be a successful manoeuvre, which is partly our concern as well. It is not a concern about the direction of travel, but a concern about whether this measure is precisely the right way in which to steer ourselves in that direction of travel.
The hon. Member for Stone (Mr Cash) is one of my favourite Members, because I have debated with him so many times—and he also told me once that he loved me, so I cannot dislike him. He referred to the application of the rules of the European Court’s decisions in relation to the courts in the United Kingdom. He, too, said that whether the decisions we make today will have any effect remains to be seen. I say that—and I think he said it, too—not out of a desire to undermine where we want to go, but to ensure that we securely get change in the direction to which many hon. Members have referred.
My hon. Friend the Member for Wigan (Lisa Nandy) made a moving speech about some of the experiences that she has had personally and in dealing with her constituents. In particular, she mentioned the situation facing many women and children. We would do ourselves a disservice if we were to pretend that the European convention on human rights had done nothing to protect the sorely abused rights of women around the world. In many cases, it has acted as a beacon for what a decent society should look like and how a decent society should go about its business.
The hon. Member for Strangford (Jim Shannon) said that he thought that there would be no Division on the motion. I thought that he might have been having a dig at the hon. and learned Member for Torridge and West Devon when he said that everything goes wrong when lawyers get involved. He was also critical of some of the judges in the European Court of Human Rights because they sometimes did not have the level of qualifications or the amount of experience that we would expect of a British judge. I am certain of the need for reform of the way in which the judges are appointed and the way in which the Court does its business and comes to its decisions, but that is not a reason for us to leave the European Court or to abandon the convention, not least—I might not be able to carry the hon. Gentleman with me on this—because it is a requirement of membership of the European Union that we should be a signatory and adhere to the Court.
The hon. Member for Ipswich (Ben Gummer), who has just fled the Chamber, made a tiny intervention on the hon. Member for Strangford, in which he pointed out the difference between the European Union, the European Court and the European convention on human rights. He was absolutely right to say that that difference was often not recognised.
The Home Secretary made several issues crystal clear in her speech. First, she made it clear that Pepper v. Hart was right, and that it is absolutely right for the courts to bear in mind what is said by a Minister or in a debate in the House of Commons—or, for that matter, the House of Lords—when legislation is ambiguous and the court is uncertain of how to proceed, without breaching article IX of the Bill of Rights, which states that a court is not able to question or impeach a proceeding in Parliament.
Mr Cash
In regard to interpretation, certainly in the field of European law—whether in the European Court of Justice or the European Court of Human Rights—the travaux préparatoires, as they are called, include all sorts of explanatory memorandums and so on. So when we talk about a clear basis, the question is whether it will stand up in due course. I hope that it will, but I am not sure.
Chris Bryant
I am not entirely sure whether I agree with that, so I am afraid that I am going to gloss over it. Perhaps the hon. Gentleman will give me a better lecture on the matter later.
We agreed with the Home Secretary’s point on Pepper v. Hart. We also agreed when she effectively said that she accepted the judgment in the Pankina case of 2010 that the mere tabling of new immigration rules is often not enough to provide legal or political clarity to the courts. We agree with that, which is why we would wholeheartedly welcome a debate in Parliament on these matters. There are those who would say that the process that the hon. and learned Member for Torridge and West Devon referred to earlier has been inadequate in the past.
The Home Secretary also referred to changes in the operation of article 8 in relation to the deportation of prisoners. Again, we completely agree with the direction of travel that she is taking and with what she is trying to do. In a sense, that is what we tried to do in 2007 with the changes in the law, but we accept that further work needs to be done. She said specifically that foreign criminals had used flimsy human rights arguments to remain in this country, and we agree. She said that the broader issue of the other changes, tabled last Wednesday, was a separate issue. We wholeheartedly agree with that, too.
We have some concerns about the process, but I do not want to overstate them. The motion expressly refers to “the Immigration Rules”. It therefore stands to reason that we are debating the rules that are in force today, rather than any that have been tabled but will not come into force until 9 July and could, in theory, be annulled in the future. So I am not sure that this motion provides quite the level of legal clarity that the Home Secretary would like.
Furthermore, there is the question of exactly how much influence a motion of the House has. We have already heard from the shadow Home Secretary about the ruling from the Clerks on that point. A few weeks ago, a motion of the House, which was agreed unanimously, stated that nobody wanting to come to this country from Russia should be allowed a visa if they had had anything to do with the death of Sergei Magnitsky. That motion has no force in law, however; it is just an interesting statement from the House of Commons. It has not been agreed by the House of Lords, and it has not gone through any kind of primary or secondary legislative process.
It might have been better if the measures had been taken in a different order, with the full set of rule changes being followed by the motion that we are considering today. Indeed, many hon. Members have said that there might well be a need for primary legislation to provide the courts with the absolute clarity that they need.
I want to make it absolutely clear that we are supporting the motion today on the understanding that it applies solely to the operation of article 8 in relation to the deportation of foreign criminals. In the words of the Home Secretary, the rest is a “separate issue”.
The Minister for Immigration (Damian Green)
I am grateful to Members on both sides of the House who have treated this important subject seriously today. I am also grateful for the support for the Government’s approach that eventually appeared from the Opposition Front Bench, although I was rather doubtful about it earlier, when the shadow Home Secretary was speaking. I am also grateful to the right hon. Member for Blackburn (Mr Straw) and the hon. Members for Glasgow South (Mr Harris) and for Strangford (Jim Shannon), as well as to those on the Government Benches who have spoken.
Let me deal with the central question. The motion clearly sets out for the agreement of the House where we believe the balance should lie between the right to respect for family and private life under article 8 of the European convention on human rights and the legitimate aims of our immigration controls. That view is reflected in the new immigration rules that we laid before the House last week. We are in complete agreement that article 8 is a qualified right. Article 8 sets out the basis on which the public interest can justify proportionate interference in individual rights to family and private life. It is the responsibility of the Government, and of Parliament, on behalf of the public, to set out when and how the public interest should qualify those individual rights. The immigration rules are the appropriate vehicle for the expression of the views of the Government and Parliament.
Pete Wishart
I am beginning to get confused all over again. I thought that we had received clarification on this earlier, but the Minister is now inviting us to support all the Government’s immigration rules, which will be unacceptable to many people in the House.
Damian Green
No sensible person would put that interpretation on what I have just said. No sensible person would put that interpretation on the motion that is before the House, which the hon. Gentleman has shown, over the past three and a half hours, he is incapable of reading. Read the motion, and you will see what we are debating.
The immigration rules are the appropriate vehicle for the expression of the views of the Government and Parliament. They are a statement of the normal practice to be followed by the Secretary of State’s caseworkers in making immigration decisions under the statutory framework that Parliament has provided.
Since the Human Rights Act 1998 was implemented in 2000, it has become increasingly apparent that the existing immigration rules do not provide a sufficiently clear and comprehensive framework for considering family and private life cases in line with article 8. The rules have not reflected adequately the factors that can weigh in favour of, and against, an applicant’s article 8 claim. The courts—understandably, as the Government have never set out for Parliament’s agreement a clear position on article 8 in the immigration rules—have had to decide for themselves on the facts of the cases before them whether article 8 did or did not provide a basis for the applicant to come to or stay in the UK.
The courts have therefore not been able to give due weight to Government’s and Parliament’s view of where the balance should be struck between individual rights and the public interest, as they have not known fully what that view is. As the Government and Parliament have not established the correct balance in the rules, the courts have arguably been as well placed as the Secretary of State’s caseworkers to assess the case and make a decision. In the absence in the rules of a comprehensive statement of public policy in these matters, the courts have developed the policy themselves through case law on issues such as the required level of maintenance for family migrants.
The changes to the immigration rules that we laid before Parliament on 13 June fill the public policy vacuum we inherited by setting out the position of the Secretary of State on proportionality under article 8. The new rules state how the balance should be struck between the public interest and individual rights, taking into account relevant case law and evidence. They provide clear instructions for caseworkers on the approach they must normally take, and they therefore provide the basis for a consistent, fair and transparent decision-making process.
As the immigration rules will now explicitly take into account proportionality under article 8, the role of the courts should focus on considering proportionality in the light of the clear statement of public policy reflected in the rules. They should not have to consider the proportionality of every decision taken in accordance with the rules on every immigration application. The starting point from now will be that Parliament has decided how the balance under article 8 should be struck, and although Parliament’s view is subject to consideration by the courts, it should be accorded the deference rightly due to the legislature on the determination of public policy. That is the approach that the new immigration rules seek to put in place in the immigration system.
By subjecting the public interest that the rules reflect to debate and approval in Parliament today, we are making good the democratic deficit we inherited on the operation of article 8 rights in the immigration sphere. We are also responding to the need that the courts have themselves identified for the Government and Parliament to take proper responsibility for these matters of public policy.
The hon. Member for Hyndburn (Graham Jones), who is not in his place, raised the important Mohammed case, which precisely illustrates why we are proceeding in this way. He asked a specific question about what would happen in a case like that where the sentence was not for 12 months or more. I am happy to repeat what my right hon. Friend the Home Secretary said in her opening remarks, that “even if a criminal has received a shorter sentence, deportation will still normally be proportionate if their offending has caused serious harm.” There is that additional power.
My hon. Friend the Member for Stone (Mr Cash) raised an interesting point, which was repeated by the shadow Immigration Minister, about which rules we should look at—the rules as they stand today or the new rules. Again, I am more than happy to repeat what my right hon. Friend the Home Secretary said, this time in her statement last week:
“I will shortly ask the House to approve a motion recognising the qualified nature of article 8 and agreeing that the new immigration rules should form the basis of whether someone can come to or stay in this country”.—[Official Report, 11 June 2012; Vol. 546, c. 50.]
That is what she told the House last Monday; that is what we are debating today.
The shadow Home Secretary and, indeed, my hon. Friend the Member for Canterbury (Mr Brazier) made points about the importance of removing more foreign national offenders, on which we agree. She asked why the numbers had come down. The simple fact is that fewer cases are arising that fit the deportation threshold. The numbers in this category are down approximately 12% in 2011 in comparison with 2010, while the overall prison population has not fallen. The number of people forcibly removed or departing voluntarily during the first quarter of 2012 has remained steady. It is slightly higher than in the fourth quarter of 2011, so I hope the right hon. Lady will be reassured that action is being taken on the very important point she raised about removals.
In what might be described as the less serious part of the debate, the hon. Members for Hayes and Harlington (John McDonnell), for Perth and North Perthshire (Pete Wishart) and for Glasgow South (Mr Harris) and my hon. and learned Friend the Member for Torridge and West Devon (Mr Cox) raised the issue of whether the courts would take any notice Parliament. What the new rules do are respond to what the courts have said about the lack of a clear framework in immigration cases for balancing individual article 8 rights and the wider public interest. The House of Lords—this was before we had the Supreme Court—observed in the Huang case back in 2007 that immigration lacks a clear framework representing the competing interests of individual rights and the wider public interest because the immigration laws
“are not the product of active debate in Parliament”.
That is precisely the purpose of today’s debate. We are having an “active debate in Parliament” on immigration rules as they affect the balance between individual rights and collective rights on article 8.
Frankly, this House ought to welcome the fact that Parliament becomes the central part of a debate on an issue that is important to our constituents. I am genuinely surprised that so many Opposition Members appear to think it inappropriate for Parliament to act in this way. I shall take up what must be a luxury for any Home Office Minister under any Government and pray in aid Liberty, which said today:
“Any fair immigration policy will be a combination of rules and discretion, allowing both for clarity and compassion in the handling of individual cases and the system as a whole. On that basis, Immigration Rules are the obvious way for any Home Secretary to seek to guide both her officials and the judiciary in their handling of cases.”
I think Liberty is exactly right in its interpretation. As I say, that is what we are doing today.
My hon. Friend the Member for Keighley (Kris Hopkins) can be reassured that we are indeed, as he urged, trying to deport as many criminals as possible. I hope he will be reassured by the figures that I read out a few moments ago.
My hon. Friend the Member for Esher and Walton (Mr Raab) has huge legal expertise in this matter and spoke with much wisdom. I was glad to hear from him that my answers to all his parliamentary questions have done some good in providing him with facts and figures. He asked what will happen if the courts do not respond. As my right hon. Friend the Home Secretary said previously, if we need to take further steps, we will, but we do not anticipate that happening.
My hon. Friend the Member for Witham (Priti Patel) eloquently pointed out how the distortions of human rights law have indeed created real problems in this country. She said she would like to see people taken straight from jail to the airport to be deported. I cannot quite promise her that, but I hope she is reassured to some extent that the average number of days between a foreign national prisoner finishing their sentence and being removed has decreased markedly. In 2008, it was 131 days; by 2011, we had got it down to 74 days, so we are indeed speeding up that process.
The hon. Members for Islington North (Jeremy Corbyn) and for Wigan (Lisa Nandy) talked about the best interests of children. The hon. Lady is quite right that she and I worked closely together for some time on these matters during the dark days of the previous Government when they were trying to do bad things through immigration legislation. Of course we recognise the importance of the statutory duty under section 55 of the Borders, Citizenship and Immigration Act 2009
“to safeguard and promote the welfare of children…in the UK”.
It is precisely for that reason that we have reinforced our approach by bringing a consideration of the welfare or the best interest of children into the new immigration rules. In assessing that best interest, the primary question in immigration cases involving removal is whether it is reasonable to expect the child to leave the UK. The best interests of the child will normally be met by their remaining with their parents. As the hon. Lady predicted, I make the point that in these rules, exceptional factors are allowed for.
There will be exceptional factors. I do not entirely share the hon. Lady’s view of the box-ticking nature of the way in which the UKBA and individual caseworkers approach these cases, not least because of the training that they have been undertaking—training to which, as she rightly said, she has contributed in the past. We are continuing to train so that our caseworkers act in a sensitive way, but exceptions can certainly be made in extreme cases.
In these rules we are introducing clear, proportionate requirements relating to who can enter or remain in the UK on the basis of their family life. They are requirements that reflect case law, evidence, independent advice and public consultation. We invite the House to agree that they are requirements which reflect the fact that family migration should be controlled in the public interest, and the fact that the best interests of a child in the UK should be taken into account.
Article 8 will cease to be an afterthought in the decision-making process, considered only after a decision has been made under the immigration rules. Instead, the determination under article 8 will be made according to the immigration rules which the Government have put in place, and which Parliament has agreed correctly reflect the public interest. We have set clear and transparent requirements as the basis for the ability of a partner, child or adult dependant of non-European economic area nationality to enter or remain in the UK because of his or her relationship with a British citizen or a person with settled status in the UK.
Applicants will have to meet clear requirements in the rules which reflect an assessment of the public interest. Those requirements are a proportionate interference with article 8 because they draw on the relevant case law, because there is a strong rationale and evidence for the fact that they will serve the public interest, and because, if Parliament agrees to the motion—as I hope and expect that it will—they will reflect the correct balance between individual rights and the public interest.
No set of rules can deal with 100% of cases, and there will be genuinely exceptional circumstances in which discretion is exercised outside the rules. However, it is in the interests of both the public and applicants for there to be a clear system to ensure fairness, consistency and transparency. The public, applicants and caseworkers need to know who is entitled to come or stay, and on what basis, and who is not. If there is to be a system of that kind, there must be rules: rules that deliver sustainable family migration to the UK that is right for the migrants, for communities and for the country as a whole, rules that properly reflect individual rights and the wider public interest, and, above all, rules that are set in Parliament, and not by individual legal cases. With that in mind, I commend the motion to the House.
Question put and agreed to.
Resolved,
That this House supports the Government in recognising that the right to respect for family or private life in Article 8 of the European Convention on Human Rights is a qualified right and agrees that the conditions for migrants to enter or remain in the UK on the basis of their family or private life should be those contained in the Immigration Rules.
Financial Services (Market Abuse)
(12 years ago)
Commons ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Financial Secretary to the Treasury (Mr Mark Hoban)
I beg to move,
That this House takes note of European Union Documents No. 16010/11 and Addenda 1 and 2, relating to a Draft Regulation on insider dealing and market manipulation (market abuse), No. 16000/11 and Addenda 1 and 2, relating to the Draft Directive on criminal sanctions for insider dealing and market manipulation, and No. 8253/12, relating to the European Central Bank Opinion on market abuse legislation; recognises that an efficient financial market that aids economic growth requires market integrity and public confidence; welcomes the UK’s leading role in combating market abuse; and supports the Government’s decision not to opt-in to the Criminal Sanctions Directive until it is clear that related provisions within the Markets in Financial Instruments Directive Review and the Market Abuse Regulation are further progressed in order to enable the Government to evaluate the implications for the UK, and ensure high standards in tackling market abuse are maintained.
I welcome the opportunity to open the debate. It is important, before I deal with the details of the motion, for me to reinforce our commitment to ensuring that there are efficient financial markets which assist economic growth. If markets are to be efficient, however, they must command public confidence and demonstrate their integrity. Central to that is the sense that those who are trading in shares, whether they are retail customers or our largest fund managers, are doing so in possession of, or with access to, the same information. We must also ensure that markets are not manipulated against the interests of those who are trading in shares.
It is the recognition of the importance of markets that have integrity and command public confidence that has led to the UK’s leading role in tackling the problems of market abuse. We established our own civil market abuse regime in 2000, ahead of the EU market abuse directive of 2003. The Financial Services Authority has made considerable strides in recent years since launching its “credible deterrence” strategy for market abuse in 2008, particularly as a result of the financial crisis. Our no-nonsense approach to market abuse is now a regular feature of national and international news. The FSA levies increasingly large penalties, and exercises its criminal powers. Abuse of this sort will not be tolerated. In 2003, the FSA handed down fines relating to market abuse totalling just over £1 million; halfway through this year, the figure is £8.9 million. The FSA is bringing the full weight of the law against perpetrators of abuse, and that includes the £7.2 million imposed in the Punch Taverns case.
The hard-line stance that we have taken on market abuse is one of the reasons London flourishes as a global financial centre. Investors and other market participants value the cleanliness of our market, which is why they use London to carry out their business. Market abuse is a blight on financial markets. It destroys confidence. It puts typically sophisticated financial actors at an unfair advantage over ordinary investors and savers. Those who manipulate the markets or abuse their position to trade on inside information undermine the efficiency and safety of the financial marketplace.
Mr William Cash (Stone) (Con)
I am sure my hon. Friend is in no way trying to divert attention away from the fact that jurisdiction is now, effectively, with the European Court of Justice. I am not going to ask him to be precise, but does he not agree that for the purposes of interpreting financial services regulations within the framework of the supervisory authorities that have been created, all these matters are ultimately matters of European law as applied by our Parliament so long as it continues voluntarily to accept them?
Mr Hoban
I am not sure I agree with my hon. Friend. I do not want to be diverted along that path, but I point out to him that, as he will know as Chairman of the European Scrutiny Committee that put forward this motion for debate on the Floor of the House, the criminal sanctions directive acts as a minimum harmonisation directive, and this House can impose more stringent penalties than the minimum required.
Mr Hoban
My hon. Friend missed out on the opportunity that I and the hon. Member for Nottingham East (Chris Leslie) had of serving on the Financial Services Bill Committee. We spent a considerable amount of time developing the details of jurisdiction in the UK, through giving powers to the Financial Services Authority. There are areas where rules are made at a European level, but, equally, there are areas where rules are made in the UK, and it is not appropriate to say, “There’s only European law.” There is a whole raft of UK law on these matters.
To date, the UK has used the flexibility of the minimum harmonisation EU directive to create a stronger standard, applying the regime to more venues and having stronger rules. Now we have the opportunity to have a better framework applied across the whole of the EU, and that is in our interests.
It is clear that market abuse can take place beyond our borders and yet still affect securities traded within our borders. For that reason, the Government support the Commission’s objective to revise the EU market abuse framework. Improving the strength and consistency of the framework is vital to investor confidence.
There are challenges and opportunities in shifting to a regulation. There are challenges if the UK’s own practices are compromised. There are opportunities from having a more consistent and stronger EU regime and potentially reducing the cost and complexity of compliance for market actors.
Clearly, our prime objective is to ensure that the powers currently available to competent authorities are not weakened, which would damage the UK and the creditable work of the FSA. Secondly, we wish to deliver a robust framework for tackling market abuse within Europe.
Interest in changes to the market abuse framework extends beyond this House. In March, the European Central Bank published its opinion of the market abuse proposals. Its commentary focused largely on the new provision in the regulation for competent authorities to be able to delay the publication of inside information with systemic consequences. The Government echo the ECB’s support for seeking the legal framework to be improved in this respect. This is a key provision for the Bank of England and the FSA following the financial crisis and the difficulties experienced surrounding the disclosure of emergency lending assistance.
I want to outline briefly the EU market abuse package proposed by the Commission. In October 2011, the Commission published a regulation and an accompanying directive on criminal sanctions for market abuse. Those proposals together update the framework formerly established by the market abuse directive 2003, including proposing EU harmonisation of criminal law for market abuse for the first time. The legal basis for the criminal directive is article 83(2) of the treaty on the functioning of the European Union. This is the first use of the relevant provision since the Lisbon treaty was agreed. It means that the directive is subject to a justice and home affairs opt-in. The UK and Ireland have discretion on whether it should apply to them. Denmark is automatically opted out. In light of the fact that this was the first use of the article, it was important that the Government carefully contemplated the issues and came to the appropriate decision.
The European Scrutiny Committee also considered the use of the opt-in. In its 52nd report of the last Session, the Committee noted that the full potential impact for the UK of the draft directive will become certain only once negotiations are concluded. The European Affairs Committee concurred with that opinion, but we are, of course, bound by the regulation.
The Government’s decision not to opt in at this time is a reflection of the sequencing of the directive compared with related legislative proposals. The proposed directive is entirely dependent on the outcome of the market abuse regulation, and the markets in financial instruments directive, which are both in relatively early stages of negotiation. The Government believe that it is very challenging to assess the implications, scope and way in which the criminal directive may develop, given the broader uncertainty of the market abuse framework, which itself is simultaneously subject to a major review.
The key issue here is ensuring that the interaction between the criminal and administrative regimes is clear and workable for all member states. Above all, we need to address the flexibility of when to apply a criminal penalty and when an administrative penalty needs to be retained within member states’ national systems. That must be determined on a case-by-case basis, in the light of the evidence of an individual case. In addition, there was uncertainty about whether the powers of competent authorities would be weakened in respect of accessing telephone records in the regulation and, potentially, the accompanying criminal directive.
It is essential that competent authorities have the flexibility to determine the appropriate type of penalty—whether it is criminal or administrative—and the powers available to them to investigate suspected cases of market abuse. The Council has itself recognised the difficulties involved in trying to complete negotiations on the criminal directive, with linked proposals being negotiated simultaneously. Therefore, the presidency decided to pause progress on the directive, in order to wait for policy progress to be made in the market abuse regulation.
However, I note that although the Government have decided not to opt in at this stage, we have continued to participate fully in negotiations. It is important that we use our expertise in combating market abuse, including the fact that the UK already covers market abuse in its criminal law today. If we are able to do that, and further progress the related proposals in the market abuse regulation and the markets in financial instruments directive in a manner that meets our objectives, we may consider opting in to the criminal directive. We can assess this only when the trio of proposals are properly progressed.
Chris Leslie (Nottingham East) (Lab/Co-op)
The Minister is giving a lucid and paced description of Government policy. Let me cut to the chase. It is important that he has the opportunity to hear my question. Are we as a nation—are the Government—opting in to the criminal sanctions market abuse directive, or is he proposing to opt out of it? Which is it?
Mr Hoban
At the moment, let me clarify the position by saying that we have not opted in. As I was saying, we need to see how discussions on three linked legislative proposals work through before deciding whether or not to opt in, but our priority is to ensure that we have a proper market abuse regime in place—one that maintains the highest standards and ensures that the Financial Services Authority, which is responsible for this area of policy, is enabled to use its powers fully to ensure that there is confidence in the integrity of markets.
So I can reassure the House that this Government will not allow legislation on market abuse to be insufficient, and we would not opt into a directive that would undermine the FSA’s current powers in this area. I welcome the opportunity to debate this issue tonight, including the opt-in decision. This is an important issue, and it is right that hon. Members have an opportunity to debate it.
Chris Leslie (Nottingham East) (Lab/Co-op)
This is indeed an important debate. Market abuse, insider dealing and market manipulation are issues that do not get the airtime that they deserve. It is important that white collar crime and abuses of what we might call white collar financial services activities are properly attended to. We know that in recent years the regulators, or the relevant authorities, have sometimes struggled properly to prosecute or pursue issues where allegations have been made and there are difficulties in pinning down the right level of evidence. This is an important opportunity to see how, when the European Union proposes new regulations to tighten up some of the rules, the UK Government approaches such questions. I was interested to see in the Financial Services Authority’s recent annual report the quite shocking statistics on potential market manipulation that still takes place and often goes uncaptured.
The statistic that leapt out at me concerned something called APPM monitoring—I know that hon. Members enjoy their acronyms—or abnormal pre-announcement price movement monitoring. Apparently, such movements are still at a level of more than 20% in respect of announcements of mergers or acquisitions. If we look back at share transactions and other dealings, we can see that there are palpably instances when information has leaked out and people have taken advantage of information asymmetry. Such market abuses are notoriously difficult to pin down and prosecute, but they are unfortunately still a feature of many of our markets and financial services and we need to do a great deal to bear down on them.
The original market abuse directive was adopted back in 2003, but the new set of regulations proposes to try to tighten up the arrangements in a number of areas. There are gaps in the new markets that have emerged, for example, particularly in commodities trading and derivatives trading. I shall talk about those in a moment. There are problems with regulatory enforcement, where outdated arrangements are in place. There is a lack of legal certainty, particularly when issues cross nation state boundaries, and a risk of regulatory arbitrage. I was not surprised, therefore, that that was one area in which the Commission made proposals.
Chris Leslie
I am grateful to the hon. Gentleman for showing that sanity is sometimes tested in these debates. I should also pay tribute to his work and to that of the European Scrutiny Committee, without which many of these important debates would never materialise on the Floor of the House—even if this debate is in the middle of the football, possibly with less exposure and fewer viewers watching on BBC Parliament than might normally do so. I am sure that there will be a rerun of these proceedings and people will be able to watch them at their leisure.
What is different about the market abuse regulations? We know that a parallel criminal sanctions directive is being discussed, although the Government’s position is far from clear. They are almost saying that they will not opt in at this stage, but might change their mind later depending on a number of rather strange factors. There are important reasons why we need to tighten up the criminal offences regime for market manipulation and for insider dealing, and those important steps must be taken. I agree with some of the proposals in the market abuse regulations that will broaden the definition of insider information to cover information that is not generally available for reasons of transaction opacity.
I am particularly keen to see improvements in the market abuse regulations in areas such as commodities and derivatives trading, which were not as large and significant as they are now. About 15 years ago, some £300 million of commodities trading took place in the UK, whereas that has now increased by almost 1,000%. Billions and billions of pounds are now moving from investment-based activity to speculation-based activity. These issues are serious. One might think about speculation in metals and gold and wonder where the harm is, as that is the nature of the world we are in today. However, speculation in wheat, cocoa and other basic food and commodity substances that can have a bearing on the nutrition of many millions of people in developing countries is an issue that matters in the real world.
If there is market abuse and manipulation, it can have a serious impact on real lives. That is why it is important that when we see so many giant corporations with very deep pockets so often being accused of distorting markets and purchasing whole monthly future contracts, potentially hurting consumers in poorer countries, we should take the opportunity to ask whether we have the right market abuse arrangements in place and whether we could make changes. If companies were cornering the market in equities or listed shares it would trigger regulatory action, but when large corporations corner the market in commodities it does not. That is a bizarre anomaly and we need to modernise the arrangements.
We need to see other important changes in the market abuse regulations. How do we identify insider dealing and market manipulation? What are the rules about information being delayed before public announcements? After the financial crisis, there were serious lessons to be learned about revealing information about abuses that might have a bearing on systemically important transactions and organisations. There are some proposals in the arrangements to deal with these issues. These are very serious questions that need to be addressed.
There is a parallel proposal for a criminal sanctions directive that defines the two offences of insider dealing and market manipulation, which should be regarded by member states as criminal offences if committed intentionally. The intention is to introduce a minimum level of harmonisation for criminal sanctions and, in particular, to provide that the competent authority should have the power to impose administrative pecuniary sanctions of up to twice the amount of profit gained or lost.
There is virtue in the criminal sanctions directive and the market abuse regulations, but we are now in this rather byzantine legislative Committee treacle trying to move these issues forward. The Minister may well be personally involved in these areas—I do not know to what extent—but if hon. Members care to take the time to look at the voluminous documentation associated with this debate they will find some interesting correspondence between the Minister and the European Scrutiny Committee. The Minister will have to forgive me if I paraphrase him incorrectly, but in that correspondence he says that the Council discussions have been somewhat fractured—I think that was the word he used—as a result of the fact that the criminal sanctions directive is taken through the Justice and Home Affairs Council whereas the market abuse regulations are taken through ECOFIN.
We then have the added little twist that the Cypriot presidency is taking over on 1 July an issue that has not been resolved and is still in abeyance. The Justice Secretary attended the Justice and Home Affairs Council at the end of April, which kept open—this is where we get into Eurospeak—the “horizontal articles” for a “partial general approach”. I know that is something that Members will be familiar with. In other words, those involved were saying, “Nothing is really going to change on this particular issue. We are just going to tread water for quite some time.”
Then we have the crazy situation in which the market abuse regulation grinds slowly forward while in a parallel universe the criminal sanctions directive enters an entirely different Council Committee. One almost, but not quite, feels sorry for the Minister trying to balance or juggle this particularly tricky set of negotiations, but rather than waiting, reacting and observing the process, he needs to grip this issue by the scruff of the neck and move it forward.
Ultimately, this is the main question I want to ask him: what is he doing to move matters forward? Can he give a proper explanation of where he stands on the substantive elements of the market abuse regulations and of the criminal sanctions directive in particular? He says that it is difficult to assess the scope and implications so far because it depends on the review of the markets in financial instruments directive and various other factors. Difficult or not, he needs to set out the Government’s position on the substantive policy issues. That is what I expected him to do this evening. The issues are not rocket science. He should set out his position. Even if it is a negotiating position, I would like to know the Government’s starting point in this set of discussions. This is a poor way of making decisions.
Clear leadership is not being shown in sorting out the matter and getting a grip of the question. It is necessary to improve and modernise the regulations on market abuse because modern-day financial markets have left behind the old regime. I understand the Commission’s attempts to get some coherence and harmony on market abuse issues and to deal with the regulatory arbitrage issues that arise from time to time, but the Government must answer a number of questions. Why do they feel that they are still unable to set out their position on the substantive policy issues? When does the Minister expect some resolution of the issues? In particular, who does he think should be moving matters forward? Is he just a bystander, waiting for others to do that—the Cypriot presidency or someone else? When will he, as a Minister, show a lead, tackling market abuse, dealing with insider trading arrangements and ironing out some of these important questions? He is too relaxed and a little complacent on these questions. He needs to take charge and grasp the issue.
Jacob Rees-Mogg (North East Somerset) (Con)
I refer Members to my declaration of interests, as I am still actively involved in financial markets—though I am glad to say not in market abuse—and particularly in emerging markets, which has become more relevant in Europe. When I started in emerging markets, Greece and Portugal were such, and I have a feeling that they may soon be classified as emerging markets again.
I support the Government on not opting into the current criminal sanctions proposed by the European Commission. It is classic European Commission stuff. The Commission thinks harmonisation would be very useful because it is concerned about regulatory arbitrage. Regulatory arbitrage ignores the strength of the British position—that people want to trade in London. They are not particularly interested in trading in a Bulgarian bucket shop. Therefore we should remember the strength of our position and not be cowed by feeling that everything across Europe must be the same.
When we look at the wonderful documentation, we are reminded that the great joy of anything to do with Europe is that it provides thousands of pages to read and inwardly digest, almost always written in a form that is as impenetrable as possible, which is part of the problem with the European Union, as the hon. Member for Nottingham East (Chris Leslie) so wisely pointed out. There is such confusion in how laws are developed that very few people manage to get to grips with them.
I wish to quote a short excerpt about why the Commission wants the criminal sanction to be brought together. It is so that member states
“can contribute to ensuring the effectiveness of this Union policy by demonstrating social disapproval of a qualitatively different nature compared to administrative sanctions or compensation mechanisms under civil law.”
That is fine, except that we are already doing it. The Government have already said that all the criminal offences that the European Union wants to bring together are covered by our own law, so it is hard to see why they then argue that it is essential that there should be harmonisation.
It is important to remember, with this opt-in at this stage, that if we opt in we cannot opt out again. This is not going to be part of the block opt-out of opt-ins that we can get by 2014. Anything that we opt into at this stage is permanent, so we would have a permanent criminal sanction agreed at the European Union level, which may not be suitable for what we want in this country.
The real problem is that Europe is the wrong area of focus for this country when it comes to financial markets. I know that we have a large market share in a whole range of financial products, that about 80% of hedge funds in the European Union are based in London and that we do more than a third of all global foreign exchange transactions. However, I thought that it would be interesting to look up where we rank across the whole range of financial services. There is an index, “The Global Financial Centres Index”, which ranks countries and capitals by a variety of measures to show how successful they are in financial services. It includes the people they have and their skills, and the depth and breadth of their markets. When we look at it, we see that London comes first, which should not surprise us. New York comes a fairly close second, followed by Hong Kong, Singapore, Tokyo, Zurich, Chicago, Shanghai, Seoul, Toronto, Boston, San Francisco and then Frankfurt. Germany, at 13th, is the first European Union country with a financial centre on the list.
We should not be worrying about co-ordination with Europe. To do so is to look at the past, at an outdated and outmoded form of competition. We need to look to the broader world, to the people with whom we really compete: Hong Kong, Shanghai and, of course, New York. Therefore, the Government must show some backbone by not giving in to more Europeanisation, because that is what has been done previously, that is what the EU is used to, and that is the comfort zone of the bureaucracy. We need to look at how our arrangements and regulations compete with the further world, not with what might be called the near abroad. If we do that, we will find that we want our own regulation and we want less European regulation, and we can negotiate from a position of strength, because the financial markets in the United Kingdom are overwhelmingly larger than those in continental Europe.
Therefore, I support the Government in not opting in, but I do not support them in qualifying it by saying “at this stage.” There is no need for any further transfer of powers to the European Union. That is part of the coalition agreement and we should never opt in to anything further in future.
Mr William Cash (Stone) (Con)
I thoroughly endorse almost everything my hon. Friend the Member for North East Somerset (Jacob Rees-Mogg) has said, but I would go somewhat further, because I have a complete aversion to the whole concept of the transfer of our jurisdiction over matters affecting the City of London. I have said that for many years now. In fact, when the de Larosière report was published I wrote in the Financial Times that I saw it as a ticking time bomb, or words to that effect, and that if matters were allowed to continue we would find ourselves mopped up by European jurisdiction.
Following the statement my hon. Friend the Financial Secretary made to the House only last week, I asked a simple question: in the light of the vast amount of commitment and time that has been spent transferring jurisdiction over matters affecting the City to the European Union, how on earth will we be able to protect the City, the related single market aspects, including financial services, and matters of the kind now before the House in the market abuse directive when they are governed by qualified majority vote? Those are the realities.
The truth is that we have made the most massive strategic mistake in relation to matters of this kind, which are governed by qualified majority vote, under directives such as the MAD directive otherwise known as the market abuse directive, which was bitterly opposed by the City of London in the early part of this century. I have to say that events then turned for the worse and those proposals have now been overtaken.
Before I turn to the specifics of the matter before us, I ought to mention that the veto on the fiscal compact, which the European Scrutiny Committee said was effectively unlawful on the evidence we received, has not been followed up. The Government and the Attorney-General are clearly of the view that the agreement on the fiscal compact between the 25 was unlawful, but in reality nothing has been done. We have just had a reply from the Government to our report on the question, and on which we held an inquiry, but in no way do they continue to do anything to put to the test the illegality that lies at the heart of the fiscal compact. We are therefore still in the position whereby the Government regard the fiscal compact of the 25 as being a matter of irregularity, but they do not do anything about it.
That is a dangerous situation, and it has gone beyond that—to the fiscal union itself being promoted and advocated by the Government. That will make things even worse, with an even deeper black hole, as I said on television yesterday. The banking union proposals, which are also now being pressed upon us, will come to fruition around the time of the summit on 28 June, and I fear that we are being taken down an extremely dangerous route.
The market abuse directive before us is one example of that tendency to legislate continuously on financial services matters, and my hon. Friend the Member for North East Somerset is quite right that we could legislate for ourselves on them. Bad markets, as I have said in articles I have written in the past, are bad business, and we have at our disposal in this Parliament every means to pass legislation on our own account, without necessarily or by any means having to leave it to the European Union. I would be going beyond the remit of this debate if I went into that in any further detail, but I repudiate the idea that we cannot legislate for ourselves on such matters.
I am by no means convinced that the Government intend to make it entirely clear whether or not we will opt in, and that is the problem with the opt-in. I think my hon. Friend is of the opinion that the Government have decided that we will not. I am not sure, but I thought he said that.
Jacob Rees-Mogg
I am grateful to my hon. Friend for giving way. No, that is not what I think. I think that the Government have not opted in, technically, at the moment, but hope to do so in future, and I think that will be a great mistake.
Mr Cash
In that case we are, as so often, ad idem and in agreement, and I am glad to hear that confirmation from my hon. Friend.
This whole business has one way or another been developing over the past 12 years—and before. It has been before the European Scrutiny Committee, and we have recommended it for debate, but it has been overtaken by further developments, particularly since the financial crash, which we are now in. I am extremely doubtful about whether market abuse in itself—important as the subject matter is, and something that needs to be dealt with—is in any way a contributor to the financial mess that the European Union is in.
We are in an economic crisis, we are in a black hole, and we should have a convention at which all those matters, including directives of this kind, are put before the member states with their cards on the table. We should say unequivocally that we want a different kind of Europe and put it to them, and the negotiating position that we adopt, those red lines, should then be put to the British people. We should have a referendum on those matters to make it absolutely clear that the direction of this over-legislated, over-burdensome European jurisdiction is doing no good whatsoever to the free markets—
Madam Deputy Speaker (Dawn Primarolo)
Order. The hon. Gentleman took some time to set his intended comments in context, which I allowed, but I now require him to address the business before us. We do not need any more general scene-setting on his attitudes towards the European Union, so perhaps he could come back to the business before the House.
Madam Deputy Speaker
Order. It is not for the hon. Gentleman to disagree with me. He thought that he was covering the subject by making general points about opt-ins, but I would like him now to refer to the documents before the House. He has been speaking for some time, and he should bring the attention of the House to his points on these documents.
Mr Cash
Well, to put it simply, the Committee is concerned that the Government might opt into the draft criminal sanctions directive once it is adopted. There would be a debate on that matter if they decided to do so. I do not think that we should opt in. That matter is part of the broader landscape and specific issues that are before the House.
The question of what the draft directive means by the word “intentionally” in relation to market abuse raises some very important legal issues. Then there is the question of whether the draft directive would apply automatically if there were proof of intent or whether there would be discretion to apply an administrative penalty rather than a criminal one. Those are all matters on which we could legislate on our own account if we wished to do so. I make no apology for repeating that point.
A further point concerns the practical application of the proposed new definition of “inside information”, which involves the whole issue of insider dealing. The trouble is—I say this with respect to Madam Deputy Speaker—that definitions in relation to European legislation raise the question of how this matter will be adjudicated on by the European Court of Justice. We have our own means and opportunities to pass legislation in this House that will define these questions.
Jacob Rees-Mogg
My hon. Friend has come to the absolute crux of the matter. Once we opt into something, it is then justiciable by the European Justice of Justice. That brings the ECJ into a role regarding our criminal law, and that is a very substantial step for the Government to be taking.
Mr Cash
I am deeply grateful for the support of my hon. Friend, who is also a member of the European Scrutiny Committee and who has very considerable expertise in his own right. He has developed an acute sense of British and United Kingdom interests in relation to matters of great importance to the City of London.
A further point is that there is no useful recital in the directive, as there normally would be, to indicate the parameters of the draft regulations. We are deeply concerned about that. There is no certainty that we will opt in, but that does not alter the fact that there is grave concern that we will eventually end up being told that we will do so. If that is what happens, I, for one, will undoubtedly vote against it.
The directive aims to prevent insider dealing and the misuse of financially sensitive market information in the financial markets. That cannot be separated from the broader landscape of the manner in which the European Union is interfering in matters in the United Kingdom that affect the City of London. The City of London represents some 20% of our gross domestic product. I entirely take on board the point made by my hon. Friend the Member for North East Somerset that we are at the top of the league in global financial market activity. I believe that a serious attempt is being made by other members of the European Union—with Frankfurt at No. 13—to move further up the positions. That will be done partly through regulatory collusion and the use of qualified majority voting, as Professor Roland Vaubel has indicated in his general concerns about the manner in which qualified majority voting and directives are dealt with.
The intervention of the financial crisis in 2007 delayed the implementation of the original provisions and prompted a rethink. Whether that rethink is beneficial is another issue. The new EU regulation that will replace the original directive, which is proposed alongside the new directive, provides for minimum harmonised standards of enforcement and sanction throughout the community. Although the UK Government are broadly supportive of the measures, there are procedural uncertainties, notably in the problem of aligning the three interlocking legislative measures at the same time. That has led the Government to conclude that the UK should not yet opt into the directive. I am interested to hear whether the Minister has a view on the words “not yet”. I do not think that he will commit himself at this stage, but there will be considerable difficulty and trouble for the City of London if we do opt in.
I do not believe that the directives are in the interests of the United Kingdom. We can legislate on these matters ourselves. There is much talk of fiscal union, banking union, supervisory authorities and the wholesale transfer of our jurisdiction over the City of London, which means so much to our gross domestic product and to our ability to compete internationally. That is being undermined by proposals of this kind, whether or not they are brought into effect.
Mr Hoban
I will respond briefly to the hon. Member for Nottingham East (Chris Leslie) and to my hon. Friends the Members for Stone (Mr Cash) and for North East Somerset (Jacob Rees-Mogg).
The challenge that we face is that there are three interlocking legislative initiatives: the markets in financial instruments directive, which provides the scope of markets; the market abuse regulation, which looks at broadening the scope and is intimately linked with MiFID; and the criminal sanctions directive. Because the UK has a world-leading regime on market abuse, has historically taken a tough line and has a range of sanctions in place that few countries in the European Union can match, we are shaping the debate in this area and playing a major role in getting it right. We are trying to ensure that we maintain the high standards that the Financial Services Authority has in its investigatory powers and its sanctions.
The progress on these matters is not as quick as we would like, but that is partly because there are three interlocking initiatives. It is not quite the case that one moves at the speed of the slowest ship in the convoy on these things, but there is a challenge. The hon. Member for Nottingham East said that the matter is being passed across to the Cypriot presidency. A whole raft of things are being passed across to the Cypriot presidency. There is nothing new in stuff passing from one presidency to another. [Interruption.] The hon. Member for Nottingham East asks from a sedentary position when we will get some movement. Discussions on MiFID are proceeding and it is one of the priorities of the Cypriot presidency. That will perhaps form the keystone and get the rest of it happening.
We are reserving our position on the opt-in. It is vital to London’s continued success as the world’s leading financial centre that we have the right measures in place on market abuse. That is why we have not opted in.
Jacob Rees-Mogg
I am extremely grateful to the Minister. I have just one question. What advantage is there to opting in if the rest of Europe is going to do it anyway and we already have something better in place?
Mr Hoban
We have an interest in ensuring that criminal sanctions are applied across Europe if we think the directive is appropriate, because shares and instruments that are traded within our borders can be affected by market manipulation outside our borders. It is therefore important that we have a proper regime in place, but let us leave the decision whether to opt in until the three interlocking pieces that I mentioned come closer together. Then I am sure the European Scrutiny Committee will bring us back to the topic once again.
Question put and agreed to.
Resolved,
That this House takes note of European Union Documents No. 16010/11 and Addenda 1 and 2, relating to a Draft Regulation on insider dealing and market manipulation (market abuse), No. 16000/11 and Addenda 1 and 2, relating to the Draft Directive on criminal sanctions for insider dealing and market manipulation, and No. 8253/12, relating to the European Central Bank Opinion on market abuse legislation; recognises that an efficient financial market that aids economic growth requires market integrity and public confidence; welcomes the UK’s leading role in combating market abuse; and supports the Government’s decision not to opt-in to the Criminal Sanctions Directive until it is clear that related provisions within the Markets in Financial Instruments Directive Review and the Market Abuse Regulation are further progressed in order to enable the Government to evaluate the implications for the UK, and ensure high standards in tackling market abuse are maintained.
Business without Debate
Petitions
Mr Peter Bone (Wellingborough) (Con)
I rise to present a petition signed by 2,012 people from the village of Irchester—half its male population. It concerns development outside the village boundary to which all three political parties were opposed before the last local elections. The leading signatories are Mr Chris Stening, Mr Tony Skipper and Mr Richard Webb.
The petition states:
The Humble Petition of residents of Irchester, Wellingborough, Northamptonshire and the surrounding areas,
Sheweth, that any proposed residential development on Green Field sites, outside the village boundary policy line, would put a great strain on Irchester’s infrastructure and have a huge damaging impact on the local environment.
Wherefore your Petitioners pray that your Honourable House requests the Secretary of State for Communities and Local Government to urge the Northamptonshire County Council, the Borough Council of Wellingborough and the Parish Council of Irchester to ensure that no such development takes place.
And your Petitioners, as in duty bound, will ever pray, etc.
[P001098]
Mr Peter Bone (Wellingborough) (Con)
I have a petition from a grass-roots organisation that has grown up, concerning the change of name of an important school in my area. Its leading signatories are Emma Davies, Serena James and Julie Burgess.
The petition states:
The Humble Petition of residents of Hemmingwell, Wellingborough, Northamptonshire and the surrounding areas,
Sheweth, that the proposed change of name of the Oakway schools in Hemmingwell and the additional cost in changing the school uniform are both unnecessary and costly and that the schools in Oakway are well established and the name is well known.
Wherefore your Petitioners pray that your Honourable House urges the Secretary of State for Education to urge the Northamptonshire County Council and the Board of Governors at the Oakway schools to work together to ensure that any merged school will be named Oakway Primary School
And your Petitioners, as in duty bound, will ever pray, etc.
[P001099]
Access to Water (Chillerton and Gatcombe)
(12 years ago)
Commons ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Mr Andrew Turner (Isle of Wight) (Con)
I asked for this debate to highlight how Southern Water is treating residents of Gatcombe and Chillerton, two of the many delightful villages in my beautiful constituency. I also want to draw attention to the lack of any affordable route to get the dispute that exists with a monopoly supplier considered independently. I have raised those matters with Ministers before, but it seems that they fall down a deep, dark hole somewhere between the Ministry of Justice as a legal issue, the Department for Business, Innovation and Skills as a consumer protection issue, and the Department for Environment, Food and Rural Affairs, which is responsible for the supply of water. My right hon. Friend the Minister may have drawn the short straw, but I am particularly grateful that he is here to pick up the baton.
Southern Water charges some residents of the villages and surrounding areas of Gatcombe and Chillerton full rates for the supply of their water. However, owing to a number of agreements, most notably the Seely agreement of 1907, many residents in the area are entitled to free water or reduced rates for their supply. They pay full rates for sewage and waste water disposal—that is not in dispute.
The 1907 agreement was made between Sir Charles Seely and Shanklin urban district council. The Seelys are an old and distinguished family. Sir Charles was a Liberal Unionist and then Liberal MP for Nottingham, and his second son, Jack, was the Member of Parliament for the Isle of Wight from 1900 until 1906, and again from 1923 to 1924. It is said that he was in South Africa fighting in the Boer war when he received a telegram from his mother telling him he had been elected. He sent a telegram back asking, “Which party?” In fact, he served as both a Conservative and a Liberal MP. It is tempting to think that he would be comfortable with the coalition Government we have today, but all hon. Members know that the Liberals were a very different proposition from today’s Liberal Democrats.
The 1907 Seely agreement permitted Shanklin urban district council to install and maintain waterworks on privately owned land in Chillerton. In return, villagers living on that land were to receive a water supply either free or at a preferential rate, depending on where they lived. The arrangement was to continue for 999 years.
Such a clause would be typical of the Seelys. They were a philanthropic family who did many good works for the island and islanders. Southern Water is the successor in title to that agreement and bound by its terms—or at least it should be. Southern Water claims that the 1907 agreement has “run its course” and that people who live on that land today are not entitled to any discount on their water supply. In fact, some properties currently receive free water, some pay a reduced rate and others get no reduction at all. There appears to be no rhyme or reason as to who pays what.
It is clear that Southern Water is not behaving in a fair and consistent way. It has even asked my constituents for details of which of their neighbours are getting discounted water so it can remove the benefit. Needless to say, my constituents have not responded to such requests for information. Amazingly, Southern Water appears not even to know to whom it is giving discounts.
This issue does not affect thousands of people—there are only 352 electors, and not all of them are affected—but over the years a number of my constituents have tried to sort out the problem, including John and Adrienne Horne and George Nightingale, who have kept me up to date with what is happening. The parish council and county council have tried to help without success. I have written to Southern Water’s chief executive. Our most recent exchange was in March this year. It was unproductive.
Southern Water says that any financial loss to householders has long since expired, but seems not to understand that the benefit was always intended for the residents whether or not they suffered loss. It says that costs have gone up, that water usage has increased, and that water from the area may not meet current water quality standards. Finally, it says it would not enter into such an arrangement these days, and that it would instead make a one-off compensation payment to the landowner. All those arguments have been made before, but my constituents have received legal advice saying that none of it affects their rights as residents and Southern Water’s obligations to them.
As I said, my constituents have taken legal advice, including counsel’s opinion, all of which confirms their view that Southern Water is bound by the agreement, but all this has been to no avail, and we now seem to have reached a stalemate. Southern Water says that it is interpreting the law in a particular way, and that is that—if it says that a 999-year lease lasts for only 100 years, that, as far as it is concerned, is the end of the story.
As far as I can see, there is little basis on which Southern Water can legitimately argue that this legally binding 999-year agreement has no force in 2012 or beyond, particularly given that residents in some of the newer properties were given reduced rates on their water charges, because of the Seely agreement, as recently as 2008. Southern Water has claimed in correspondence that any benefit should have ceased many years ago.
The Seely land was given at a peppercorn price in 1907 in return for the long-term benefit to villagers, yet Southern Water sold some of it in 2004 for £50,000—houses have since been built on it—adding insult to injury. The Minister knows that Southern Water is a monopoly supplier and that my constituents cannot simply go elsewhere to get water. Ofwat, which regulates the market, states that consumers treated unfairly by water companies must go through the company’s complaints procedure. Afterwards, they have the right to complain to the independent Consumer Council for Water, which is a statutory body that should represent consumers’ interests in dealings with water companies, but the council has refused to get involved, saying it is a legal matter.
It seems that the only way my constituents can get proper consideration of their case is by taking Southern Water to court, but that would cost many thousands of pounds and is simply not feasible. That surely cannot be right. It has been suggested that residents should not pay the water rates that are not due, but Gatcombe and Chillerton residents are a sensible group of people and are concerned that such a course of action might have an adverse effect on their credit records.
We are left in the position where Southern Water, a financial giant of a company with a turnover of almost £650 million, is riding roughshod over my constituents. It realises that there is no realistic prospect of “the little people” taking it to court and that the regulator will not get involved, so it is applying the law as it wishes it to be applied—and tough luck to anyone who disagrees.
In short, there seems to be no way in which my constituents’ concerns can be examined independently without recourse to the courts, yet Sir Charles Seely knew, more than 100 years ago, that it was necessary to provide “the little people” with a means of settling disputes. The Seely agreement makes provision for independent arbitration of any dispute, but Southern Water is simply not interested. Sir Charles would be outraged, and so am I.
Taking into account that this is a regulated industry, I hope the Minister can help me to find a way forward that will ensure that the residents of Gatcombe and Chillerton get their legal rights. We need to find a way of getting these agreements examined and, if appropriate, enforced consistently and fairly. Furthermore, Southern Water must be made to deal properly with the residents of Gatcombe and Chillerton.
Finally, I would like to thank the Minister very much for being here to respond to this debate. I wrote only recently to his colleague the Under-Secretary of State for Environment, Food and Rural Affairs, my hon. Friend the Member for Newbury (Richard Benyon), inviting him to come to the Isle of Wight for a number of reasons, and this was one of them.
The Minister of State, Department for Environment, Food and Rural Affairs (Mr James Paice)
Let me start by congratulating my hon. Friend the Member for Isle of Wight (Mr Turner) on securing this debate and, as one who has known him for many years would expect, on the considered way in which he has made his points. It is probably as much a surprise to him as it is to me that I am replying to the debate, rather than the Under-Secretary of State for Environment, Food and Rural Affairs, my hon. Friend the Member for Newbury (Richard Benyon), who deals with such issues in the Department. Unfortunately he is unwell this evening, and I volunteered to respond to the debate in his stead. I hope that my hon. Friend the Member for Isle of Wight will understand, therefore, that my depth of knowledge of the subject is a little more limited than that of my hon. Friend the Under-Secretary, who I have no doubt will respond to his invitation—to which he referred at the end of his speech—as soon as possible.
Clearly this is an issue of great importance. My hon. Friend was kind enough to furnish us with a copy of what he was proposing to say this evening, so that we could prepare for it. Having read through it several times, as well as listening to him just now, I can assure him that I fully understand the concerns that he has expressed, and which I am sure most hon. Members would share, faced with such a constituency case. Although this is an important issue, however, I am now going to have to disappoint my hon. Friend slightly, because as my hon. Friend the Under-Secretary said in the letter that he wrote to him on 1 June, this is a legal matter. As the case may end up in court, notwithstanding my hon. Friend’s comments, I have been strongly advised, as I am sure sometimes you are on different issues, Mr Speaker, not to say anything that could be deemed to be of use to one side or the other in such a hearing, tempting, as I can assure him, though it is for me, as he will know—sometimes I am renowned for saying what I think, rather than what I have been told I should say.
My hon. Friend also referred to the role of the regulator, Ofwat. As I think he knows, the regulator’s role is to regulate prices, so that companies can charge their customers as a whole, based on that regulation. The regulator can cap the total revenue that companies can collect from their customers, and set rules to ensure that customers are charged fairly. The regulator plays an important role in ensuring that we have resilient water resources, balancing the need for investment to maintain and improve water and sewerage infrastructure to meet water quality and environmental standards with the need to keep prices low for customers. However, as the subject of this debate centres on a legal agreement—which, as I have said, may end up in the courts—I am afraid that I am unable to comment, and I have to confirm that Ofwat does not have a role in the dispute.
Nevertheless, if my hon. Friend will permit me, I would like to spend just a moment on wider water issues, some aspects of which are relevant to this debate. There has been a lot of discussion in the country over the past two or three months, with the initial drought and then the rain over the past 10 weeks, which has brought much needed relief. However, these events demonstrate to everybody in the country the need to take action to secure sustainable water supplies, now and in the future. That action was set out in the Government’s water White Paper, which we published last year. It described a vision for future water management in which the water sector is resilient, in which water companies are more efficient and customer-focused, and in which water is valued as a precious and finite resource. The White Paper also described the actions to be taken by all of us—the water industry, businesses and agriculture, the Government, and families in their homes and gardens. The White Paper sets out the Government’s long-term vision for the water industry and the need for reforming the abstraction and competition regimes. We will also introduce a draft water Bill before the summer recess.
My hon. Friend referred to the fact that his constituents had nowhere else to go for their water. I am sure that he will therefore welcome that part of the water Bill that will increase resilience by increasing competition for customers and stimulating a market for new water resources, precisely to address the issue of customers having no alternative. Upstream competition should encourage existing water resources to be used more efficiently, reducing the threat of drought and requiring less water to be abstracted from our rivers and boreholes in water-scarce areas.
I know that the action we are taking to ensure that our water resources remain resilient and sustainable will be close to my hon. Friend’s heart, and to those of other hon. Members. The White Paper described the things that we can all do to use water more sustainably, whatever we are paying for it. Families can use less water in their gardens by installing a water butt, by using grey water and through other methods. They can also save water, and money, in the home by fitting water-efficient devices such as dual flushes and aerated shower heads, and by repairing dripping taps. I am delighted that the Isle of Wight is leading the way on sustainability. Having strong family connections with the Isle of Wight, I am personally enthused by that fact.
Without wishing to spin this matter out any longer than I or my hon. Friend might wish, I have to reiterate that because the issues that he has quite properly raised and publicised relate to a legal matter, it would not be appropriate for the Department for Environment, Food and Rural Affairs to comment officially or for Ofwat to intervene. In the last part of his speech, however, he said that the Seely agreement made provision for the independent arbitration of any dispute. He also, rightly, said that the prospect of the cost of legal action was rearing its head for the little people. If such a clause exists in the agreement to enable the independent arbitration of the dispute, it therefore seems to me that that would be a sensible and logical step for both sides to take. Speaking personally, I would strongly urge both sides to use that facility for independent arbitration, which should provide a way to resolve this matter without further time-wasting or further cost to either side.
Question put and agreed to.
Westminster Hall
Westminster Hall is an alternative Chamber for MPs to hold debates, named after the adjoining Westminster Hall.
Each debate is chaired by an MP from the Panel of Chairs, rather than the Speaker or Deputy Speaker. A Government Minister will give the final speech, and no votes may be called on the debate topic.
This information is provided by Parallel Parliament and does not comprise part of the offical record
Armed Forces Day
(12 years ago)
Westminster HallRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Westminster Hall is an alternative Chamber for MPs to hold debates, named after the adjoining Westminster Hall.
Each debate is chaired by an MP from the Panel of Chairs, rather than the Speaker or Deputy Speaker. A Government Minister will give the final speech, and no votes may be called on the debate topic.
This information is provided by Parallel Parliament and does not comprise part of the offical record
Alex Cunningham (Stockton North) (Lab)
I am pleased to have this opportunity to serve under your chairmanship for the first time, Mr Gray, and to have the privilege of opening this debate in tribute to the people who protect our country and the world and who often pay the ultimate price by losing their lives in the process.
I have found it extremely heartening to see greater support for our armed forces in recent years. It was always there, but now we see real evidence of the pride our people take in the men and women who serve, lining the streets for freedom ceremonies, paying tribute to those who have lost their lives and committing to activities to give those who serve a better deal. The fourth annual Armed Forces day will be held on Saturday 30 June. While it is a time of celebration, it is an opportunity to do two particularly important things: first, to raise even more public awareness of the contribution made to our country by those who serve and have served in the armed forces; and, secondly, to give our nation an opportunity to show our support for the men and women who make up the armed forces community, from currently serving troops to service families, and from veterans to cadets.
The armed forces defend the UK and its interests and play a crucial role in making our world as safe as possible. Through centuries of service to the nation, they have established a record unequalled in the world. They work selflessly with honour and distinction in the most challenging circumstances imaginable. Every day the world becomes more and more interconnected, and instability in one corner of the earth can have far-reaching consequences for the rest of us. Our armed forces are therefore busy working around that world, promoting peace, delivering aid, tackling drug smugglers, providing security and countering terrorism, whether in the fight against the drugs trade in the Caribbean, in working to prevent and deter conflict in places such as Cyprus and the Falkland Islands or, of course, in continuing to fight for a safer Afghanistan, a safer Britain and a safer world.
It is because our values and interests do not stop at our shores that we are a country that cherishes our forces, who have the power to persuade and the ability to act. Since the second world war, more than 16,000 servicemen and women have lost their lives in a score of campaigns. That is why we should never take the incredible bravery and service of the British armed forces for granted. Everyone needs to understand the sacrifice that they make on our behalf. Their contribution to our safety and security is immense, and we owe them all a huge debt.
The love for the armed forces among the British people is not in doubt. Opinion polls suggest that up to 95% of the public respect the role of the Army—I can speak for the whole of this Chamber and perhaps the whole of Parliament when I say that we all very much envy such approval ratings. A testament to the hard work of organisations such as the Royal British Legion is that there has been a separation in the minds of the public between the Iraq and Afghanistan issues and the soldiers fighting and risking their lives there. Although the past decade in Iraq and Afghanistan has proved contentious, public support for our veterans and their families has been unequivocal. People all over the country continue to come out on to the streets to welcome home after gruelling tours sons, brothers and daughters in uniform. We all remember the special service undertaken on our behalf in past years by the people of what is now Royal Wootton Bassett, lining the streets as the bodies of the fallen are brought home to the UK.
I am immensely proud, as we all are, that the British public have more than stepped up to the mark in support of our armed forces. Help for Heroes has raised more than £50 million in less than three years. The Royal British Legion has had its best three ever poppy appeals, and all the major service charities have felt a boost in popular support.
Armed Forces day has provided a formal focus for support. Once the British public saw the need, they simply answered that call. In my constituency of Stockton North, from where there are 71 service personnel, with a further 67 from the rest of the Stockton borough, I am delighted that a range of events has been planned to celebrate Armed Forces day, beginning with a picnic this Saturday. Along with towns and cities throughout the country, we will raise the Armed Forces day flag at our historic town hall on Monday, 25 June, and that will be followed by a small parade and a speech from Lieutenant-Colonel Heron, secretary of the Durham Light Infantry friends’ group.
Later in the week, a fair in Stockton will celebrate our armed forces, past and present. Stands and stalls set out in the local high street will host a variety of exhibits and displays, such as by civilian support associations or a range of military vehicles from the second world war to more up-to-date times. I am used to my borough of Stockton doing things differently so, while we will not see alien and earth-based forces fight it out in the skies over the high street, we will see a fun, “Star Wars”-themed element that will look forward in time and explore a possible vision of the nation’s future forces standing alongside celebrations of past and present armed forces. I am sure that children and younger people will enjoy that, helping them to appreciate a little more what happens to protect them and their families in today’s society. Other events currently planned to recognise the contributions made by our armed forces include a service of thanksgiving and a tea dance at the Baptist tabernacle. Wednesday 27 June will witness reservists and cadets from throughout the borough ditch their civilian clothes to wear their uniforms to work.
Local and national Government have their role to play not only in leading recognition and celebration of our armed forces but in ensuring that they get the support they need while serving and afterwards. Nationally, we have the armed forces covenant, which many of us would like to see have even stronger commitments to service personnel and their families, but local councils in north-east England are doing their bit, too.
In appreciation of the risks undertaken by the armed forces during the course of their duties and in recognition of the important contribution that service personnel, their families and veterans have made and continue to make, I am delighted to say that Stockton borough council is one of the eight north-east councils to have introduced an armed forces community covenant. The community covenant exists to support the national armed forces covenant introduced in May 2011, but at the local level. The principle behind the community covenant is that the armed forces community should not face disadvantage because of its military experience. In some cases, such as with the sick, injured or bereaved, that means giving special consideration to enable access to public or commercial services that civilians would not normally receive, ranging from issues such as housing and education to support after service. For Stockton borough council and partner organisations, the community covenant presents an opportunity to bring their knowledge, experience and expertise to bear on the provision of help, advice and support to members of the armed forces community, and to build on existing work such as the north-east scrutiny review of the health needs of ex-service personnel.
Although all that positive work in Stockton and up and down the country to celebrate the forces is going on, polls in recent years have, however, found that more than half of people—53%—believe that there remains a gulf between the Army and the rest of society. As the older generations who fought in the world wars or undertook national service dwindle, and as the services have reduced in size since the end of the cold war, public understanding of our armed forces has declined. The unique nature of military service, too, often goes unrecognised and misunderstood. What a life in today's armed forces is like and the impact that service life has on modern families is less widely understood. That is why Armed Forces day is so important in raising people’s awareness of the impact of service life.
I am sure that all of us who have met and know service personnel agree that one finds that a fantastic variety of people makes up our armed forces, with an amazing range of skills. For British servicemen and women, it is not only a question of fighting the enemy with an array of armoury and the latest hi-tech weaponry, but about what happens when the fighting is done, when they take their helmet off, put the beret on and start to engage with people, building trust to make a lasting peace. They do all that in the most difficult circumstances, in the 40° heat of Afghanistan and Iraq, seeing violence and suffering on an imaginable scale and while separated from their loved ones. Yet, through all that, they retain their courage, their professionalism and, let us not forget, their sense of humour.
While we celebrate those accomplishments, in all parts of the political spectrum we must also acknowledge the difficulties faced by the armed forces and their families and work harder to improve their quality of life. Our veterans deserve the best equipment, services and support we can offer. Those who have selflessly defended our country and interests for no personal gain or glory must never be abandoned or forgotten. I am sure that all hon. Members who are here from both sides of the House agree that it is important that on occasions such as this we speak with one voice in support of our veterans and servicemen and women. This is not a time for party political point scoring.
It is important that, to ensure the armed forces are given the support they so deserve and need, we constantly scrutinise the Government of the day’s policies, encouraging a healthy debate on the issues and speaking up when we believe the interests of the armed forces are not being put first. That is why Labour is calling for urgent cross-party talks to end discrimination against our armed forces. Greater legal protection for the armed forces and their families must be examined as we seek to end abuse of the service community. It is shocking to hear that more than one in five members of the forces have said they had experienced strangers shouting abuse at them while wearing their uniform in public in the UK in the last five years. Nearly one in 20 said they had experienced violence or attempted violence, and 18% have been refused service in hotels, pubs or elsewhere. The Government must bring all parties together, including the military and service charities, to discuss how to end that appalling abuse of the service community.
The previous Labour Government changed the way in which the armed services, their families and veterans are supported by Departments. For example, they introduced the armed forces compensation scheme, the doubling of welfare payments to those on operations, the advancement of education services for service leavers who have served for six years, increased access to the NHS, and improvements in accommodation through joint working between the Government and voluntary organisations. Studies have shown that that has led to a fall in homelessness among former service people from about 22% to 6%. I pay tribute to the work of charities such as the Royal British Legion, the Soldiers, Sailors, Airmen and Families Association, Help for Heroes, and many others, all of which contribute so much to supporting our armed forces.
This debate is about not just servicemen and women, but their families, some of whom have lost loved ones, and we must do all we can to support them. Quite simply, supporting families is supporting the front line. Their contribution to our country is enormous, and the support they receive should reflect our country’s values and character. Last year, more than 1,000 service personnel suffered major injury. The care provided by the services and our health professionals is first class, but the impact of injury, whether physical or mental, may be lasting and demand long-term care, and it is often family members who take up the responsibility for loved ones hurt in the line of duty.
The UK currently has no specific working leave rights for carers of service personnel or veterans, so it is vital that military families have the support they need to provide a caring role, something that Labour is strongly campaigning for. Service personnel have consistently stressed how important community support is for their families—things as simple as ensuring that teachers are aware if children in their class have fathers away on operations.
Defence issues transcend partisan politics, and that should include welfare. My right hon. Friend the Member for East Renfrewshire (Mr Murphy), the shadow defence spokesman, has consistently argued that the three main parties must agree on issues involving military action, and far more so on support for veterans and families.
The sacrifice that service families make is huge. Families miss out on special moments with those they love, whether birthdays or anniversaries or just sharing a simple family day, not to mention the sacrifice of those who move around the country and who live with fear for those who fight in our name. Families often deal with the long-term consequences of conflicts that protect us and others around the world. We should repay them by ensuring that they have the ability to care for our forces.
I am grateful for the opportunity of this debate today. I know that many right hon. and hon. Members are sorry that they cannot be with us because of other activities. They include my hon. Friend the Member for Stoke-on-Trent South (Robert Flello), who was Parliamentary Private Secretary to the former Defence Secretary, my right hon. Friend the Member for Coventry North East (Mr Ainsworth).
I want to finish by emphasising how important and unique Armed Forces day is. It simply unites the whole country. Indeed, the British public are as big a part of the day as the forces. They provide support in countless ways, and their tremendous work enables our armed forces to continue to do such an excellent job.
Mr James Gray (in the Chair)
Perhaps I could deviate from normal procedure and, as the Member of Parliament whose constituency includes Royal Wooton Bassett, thank the hon. Gentleman for his kind remarks about my constituents. As chairman of the all-party group on the armed forces, I remind hon. Members that at 3.30 pm they will have the opportunity of welcoming 20th Armoured Brigade, who will march through Carriage Gates to the north door of Westminster Hall. All hon. Members, peers and staff of both Houses will be very welcome at that occasion.
Oliver Colvile (Plymouth, Sutton and Devonport) (Con)
It is a pleasure, Mr Gray, to serve under your chairmanship in this debate and on the all-party group on the armed forces, of which I am delighted to say that I am a vice-chairman with responsibility for the Royal Marines. I have always taken a keen interest in this issue, because I come from a service family. I did not serve in the armed forces, but my father joined the Navy at the age of 14 and went to Dartmouth, and my grandfather was first lieutenant of the naval barracks in Plymouth and gunnery officer on HMS Valiant at the battle of Jutland. My great-uncle was killed in the first world war at Ypres. I followed the issue very closely during my childhood, and I remember two brothers—the Goldney brothers—who lived up the road from us who had been responsible for keeping the Panzer division at bay during the battle of Dunkirk and then spent the next four or five years in a prisoner of war camp.
This is an important debate at an apt time, because next week is national Armed Forces week, with a commemoration day, which will culminate on Plymouth Hoe, when the hon. Member for Plymouth, Moor View (Alison Seabeck) will also be present as a fellow Member of Parliament for Plymouth. We have worked hard during the past two years to encourage my right hon. Friend the Minister to ensure that Plymouth is the centre and focus for the national Armed Forces commemoration. I thank him for listening to our wishes and desires, but if I have nagged him a little too much, I am sorry.
I pay tribute to the people in Plymouth who are putting together an effective week of commemorations, especially Commander Crichton, who has sometimes found it difficult to get people to work together, but is working incredibly hard on the matter. I just hope that the weather will not be as bad as it was when 3 Commando Brigade returned to Plymouth for its welcome home, when rivers of water were running past, and some of us had to step out of the large river that was running down the Hoe at the same time. I was reminded of that just the other day.
Last Thursday, I spoke in the excellent debate on mental health. One issue that I looked at in a big way was combat stress and the mental health of our armed services. I have spoken regularly about that in the House, and I hope that a difference is being made and that there will be better co-ordination between Departments’ policy making on such issues. The debate coincided with the 30th anniversary of the Falklands war. Last Sunday, I joined the Royal Marines and 3 Commando Brigade on the Hoe to lay a wreath on behalf of the 32 or 33 members of the brigade who were killed during the Falklands war.
In preparing for the debate last week, I had quite a long conversation with Combat Stress, which his based in the constituency of my hon. Friend the Member for Mole Valley (Sir Paul Beresford). That excellent charity told me that, of the 4,800 veterans on their books, 221 served in the Falklands. The youngest is now 46, and the oldest is 74.
This year, the charity has been contacted for the first time by no fewer than 10 Falkland veterans, 30 years after the conflict. Evidently, such contact is not something that happens today or tomorrow, and people may suddenly experience recall and flashes that refer back 30 years. Three of those who contacted the charity have waited for more than 25 years between being discharged and making that first contact, and a further three have waited for more than 16 years.
Last year, 18 Falkland veterans contacted Combat Stress for the first time, one of whom had waited for more than 28 years to deal with the issue. That trend was confirmed the other day when I visited the Glenborne unit—the mental health unit at Derriford hospital—and I was told that it has seen a significant rise in the number of veterans who suffer from mental health illnesses.
Last week, I congratulated my hon. Friend the Member for South West Wiltshire (Dr Murrison) on his paper on combat stress, which has formed the basis for the Government’s approach to much of this issue. I also congratulate the House on enshrining the armed forces covenant in law. That was important.
This issue, however, concerns not only mental health; we must also consider other factors such as the quality of housing that we deliver and how we can ensure that service families and service children have access to good schools. I pay tribute to HMS Heroes in Plymouth, which looks after some of the children whose parents serve in the armed forces. It does an incredibly good job.
Service families who move from one garrison to another sometimes find it difficult to access schools, and we must ensure a much more level playing field. If a family arrives in Portsmouth in July, having previously been in Plymouth, and try to enrol their children into one of the local schools, they may find real difficulty because all the school places have already been allocated. It is important to do something for those families, as well as for Territorial Army reservists, because if there is a reduction in the number of regular troops, the slack will be taken up by the reservists. Indeed, I urge the Minister to ensure that we have a strategy that looks after the health—in particular, the mental health—of those reservists. At the moment, they seem to fall through the net, and we must ensure that a box is included in their application form to allow information to be shared with charities such as the Royal British Legion, which does an excellent job, and Combat Stress.
Recently, I heard that children of parents who have been killed in active service could lose their pupil premium after 12 months. We must address that important issue—perhaps it is something that the all-party group on the armed forces might consider. We must also consider the accommodation in which our service troops and their families must live. I pay tribute to Alabaré, which is based in my constituency, and an organisation called Riverside that does an enormous amount of work to ensure that armed forces families are looked after in a big way.
Another issue on which I feel strongly concerns those people who leave the armed forces. We must ensure that they have employment opportunities and can take the qualifications and experiences that they gained while serving into other jobs. My father left the Navy at the age of 45 as a two and a half—a lieutenant commander—and he ended up as the head of outside broadcasting at Rediffusion Television, which demonstrates how long ago that was. Having been a signalman, he was able to use his experience in communication. I have spoken to a number of people who feel that it is difficult for members of the armed forces to use their experiences in such a way, because they are not necessarily recognised in NVQs or other qualifications. I urge the Ministry of Defence to look at that issue.
Over the past month or so, I have been in discussions with the Minister because Plymouth university is looking at a way to create something similar to the Royal hospital in Chelsea and provide accommodation and a home for some of our veterans. The idea is to ensure that students at the medical school can buddy up with some of those veterans who have to live without accommodation, and it is a very good thing to do. Plymouth is also the home of the Haslar unit, which deals in prosthetics and similar matters.
Finally, in my opinion, the contribution that Plymouth has made and will make during the great commemoration for national Armed Forces day is exemplary, and I pay great tribute to everybody’s hard work and effort. We have a great story to tell as a great naval city and the home of Sir Francis Drake.
Mrs Madeleine Moon (Bridgend) (Lab)
It is a great honour for me to serve under your chairmanship, Mr Gray, just as I do in my role as vice-chairman for the RAF group in the all-party group on the armed forces.
Mrs Moon
Thank you, Mr Gray. I very much appreciate your comments. I sometimes wonder what my father would think about my chairing the RAF group. During the second world war he served in the merchant navy, and when he left at the end of the war, he entered the Royal Naval Reserve—interestingly, he too was a lieutenant commander. I remember that all family occasions would end up with my father and my two uncles—Uncle Joseph who served in the RAF, and Uncle John who served in the Army—arguing over which branch of the armed forces had made the most important contribution. They would constantly poke each other and tell each other that they belonged to the senior service, and I remember that well as a major aspect of my childhood. Although I do not fit the bill for someone who comes from a traditional military family, the armed forces played a major part in my childhood. When I came to the House that led me to take an ongoing interest in the work of the Defence Committee and the all-party group on the armed forces.
When I attend events that relate to the armed forces in my constituency, there is clearly a widely held assumption that those who have an interest in the armed forces belong to two different branches—older veterans and families with members who are currently serving. We see those as two distinct groups and tend to forget about the reservists and the Territorial Army, as well as the cadets, many of whom are often planning a career in the armed forces. In fact, people who have served in the armed forces are all around us. When someone leaves the armed forces they retain the ethos that they gained during their service, which often remains relevant in the work that they do and the way they view their life and service to their community. To challenge the assumption that people in the armed forces are either elderly veterans or those currently serving, to celebrate the fact that former armed forces personnel are all around us, and hopefully to mark Armed Forces day in a new way, for the past two years I have organised in Parliament an exhibition called “Standing Next to You.”
I know that you, Mr Gray, took part in that exhibition last year and sent us an amazing photograph of an extremely youthful James Gray during his time in the military. The exhibition is designed to highlight the former armed forces personnel working in Parliament. They work in many different branches of Parliament. Each contributor provides a photograph of themselves when they were serving, a current photograph and a short biography. Contributors have come forward from both Houses and across departments, including Doorkeepers, Officers and Committee Clerks, and all with a story to tell. I hope that the exhibition will serve as a fitting recognition of the ongoing contribution and commitment that former armed forces personnel make just in the very small, localised community of the Houses of Parliament. This year’s exhibition will be staged in the Royal Gallery from Monday 25 June. I encourage everyone to come along and see for themselves how many former service personnel are around us in Parliament.
We are discussing Armed Forces day, so it is appropriate that this week is carers week. Armed Forces day is not just about those currently serving or even veterans. It is also about their families and the major contribution that they make to the effectiveness of our armed forces. We must not forget that the families are often on the front line of dealing with the absence of a loved one while they are on active service but also with the consequences of that service when they return home. Sadly, some of those family members will become carers, dealing with the impact of physical injuries but also the mental scars that active service can leave. Carers UK uses carers week to highlight the impact of caring: 83% of carers report that caring has had a negative impact on their physical health and 87% report a negative impact on their mental health. Military families are no different. In fact, military families and the requirements of the military led the way in the development of mental health services in this country. We often forget that. It was the need to help people to recover from their experiences in the trenches during the first world war that led us to begin to discover ways of dealing with people with mental health problems and helping them to recover their mental health. The Royal Marines have done excellent work in the development of TRiM—trauma risk management—which has also been important in highlighting the people who are beginning to find their service difficult and has helped them to find their way back to recovery.
The number of people in these circumstances is difficult to quantify. American studies show that one third of Vietnam veterans needed psychological care and that one in five soldiers suffered combat-induced psychological problems post-Iraq. Our regimental system seems to help people to avoid suffering the same high levels of post-traumatic stress. Regiments help to provide comradeship and support. However, after almost a decade and a half of war in the Balkans, Iraq and Afghanistan, we have to be aware that the number of traumatised and psychologically damaged military and ex-military personnel will grow.
Combat Stress reports an increase in referrals of 66% over the past six years. The most common diagnosis is post-traumatic stress disorder. Interestingly, an analysis of its referrals clearly shows that the common time lag between someone finishing their service and seeking help is, on average, over 14 years. When I was in the United States looking at the work being done there on post-traumatic stress disorder, one of the interesting issues raised was how many in the States are reservists. As we move towards Future Force 2020 and increasing numbers of reservists, whom we will be moving towards the front line, we must consider how we will deal with people suffering post-traumatic stress—how we will provide support to them. That is a step that we have to take. We must plan for it now—we have to be prepared.
Although the services available to help veterans have improved by leaps and bounds, it is important that we do not forget about the toll on their families and the help and support that they might need. I, too, want to refer back to last week’s debate on the Floor of the House about mental health. It was shocking to hear the figures showing the lack of support for people suffering mental health problems in the community. With the potential time lag of 14 years between someone finishing their service and seeking help, we must ensure that veterans can access services after 14 years, when perhaps they do not have the same access to services as those who are currently serving in the military.
It is also vital that we do more to encourage veterans who are reluctant to seek help to come forward. The hon. Member for Plymouth, Sutton and Devonport (Oliver Colvile) gave the example of someone coming forward 28 years after the Falklands conflict. That is unacceptable: we must ensure that people feel able to come forward much sooner. Many out there are suffering in silence while their lives and those of their close family members disintegrate.
We will also need to tackle compassion fatigue, ensuring that funding for psychological services does not fall away as memories and identification with a conflict fade. It is possible that in 10 or 20 years’ time, we will see a rise in the number of veterans seeking help. By that point, we will have withdrawn from Afghanistan and the armed forces may not have the profile that they have today.
We must ensure that Afghanistan does not become something associated solely with the Army. Let us not forget that large numbers of personnel from the Royal Navy, the RAF and the Royal Marines are also serving in Afghanistan. There are also large numbers of reservists in Afghanistan. There are also large numbers of people working for private sector defence companies. They, too, are seeing and experiencing trauma. Those are all people who may well in the future need our help and support.
As I draw my speech to a close, I want to mention the impending decision on the future of certain regiments and the impact that that will have on veterans of those regiments, the serving soldiers and their families. Last week, I met veterans of the Queen’s Dragoon Guards who had come to Westminster to lobby Ministers on the future of their regiment. The fear is that Wales’s only armoured regiment will be lost simply because it is considered to be that regiment’s turn or it will be a victim of politicking with regard to the proposed referendum on independence for Scotland.
People’s link with their regiment is very important. They see their regiment as their extended family. I appreciate the difficulty that the Ministry of Defence has with the downsizing of the Army, but the proposed cut is not just about numbers and our ability to engage in future operations. It is about the individuals who have invested part of their lives in regiments that face amalgamation and those returning from Afghanistan who may be facing an uncertain future. That is devastating for them and their families. Those left behind when someone is on service overseas have a difficult enough time as it is, but to be facing an uncertain future at a time of great economic difficulty is doubly hard. Losing one’s Army job ultimately means losing one’s home and community. If those cuts are to be made in the Army, it is especially important that careful consideration is given to the families, who will also feel that impact.
Armed Forces day and particularly the military covenant serve as useful vehicles for keeping the needs of our armed forces personnel high on the agenda. They are certainly high on the agenda in this place. I am pleased to say that I will be attending the welcome home later today of the 20th Armoured Brigade. Those who serve this country need to know that the House is not interested in them only in times of service during conflict. It is an ongoing interest and an ongoing commitment. Armed Forces day is a way of demonstrating that throughout the country.
Jonathan Reynolds (Stalybridge and Hyde) (Lab/Co-op)
It is a pleasure to be here under your chairmanship, Mr Gray, to make a brief contribution to this debate to mark Armed Forces day. I congratulate my hon. Friend the Member for Stockton North (Alex Cunningham) on securing the debate, which is greatly to his credit.
Two years ago, as a new MP, I chose to make my maiden speech on the defence section of the Queen’s Speech so that I could pay tribute to one of my constituents, Corporal Harvey Holmes, of 1st Battalion the Mercian Regiment, who had lost his life in Afghanistan just days before. Sadly, he is one of many young people from my area whom we have lost.
Since that speech, I have taken advantage of the many ways that Members can support the armed forces, including becoming secretary of the all-party group on the armed forces, which is so ably chaired by yourself, Mr Gray, and enlisting in the armed forces parliamentary scheme. That scheme has taken me everywhere from the armour centre in Bovington, Dorset to the university officer training corps in London, and from the plains of Canada at the British Army training unit Suffield to current theatres of operation, such as Afghanistan. It is important to mention that such visits are held not because they are enjoyable for MPs, but to increase our familiarity with and understanding of the armed forces at all levels. We receive excellent intelligence and other briefings in Parliament, but it is important to get out and see for ourselves. A message that we might want to send out from the debate today is that there are MPs on both sides of the House who are willing to do that and to support the armed forces in all parts of the job that they do.
If I were to make just one point, it would be that not only are our armed forces an asset to the country in their defence capability, though obviously that is the most important reason we have them, but, more than that, they are important national institutions in their own right. They make a huge contribution to our culture, history and identity, and provide vital opportunities to people from all parts and sections of the country. At a time when the unity of the United Kingdom faces a significant challenge, they are an important pillar of national unity. In the constituent parts of the UK, there is great pride in the extremely strong representation of the north of England, the regions and constituencies such as mine in the armed forces.
We can be extremely proud of the armed forces. In a world where we are always looking for competitive advantage as a nation, they represent something that we do exceptionally well. That does not mean, of course, that there are never any problems or that there are not things that we could do differently. Equally, there are things that our armed forces are right to ask of us. I would like to highlight three principal areas of concern.
First, there is discrimination, as my hon. Friend the Member for Stockton North described in detail. We are all appalled that anyone could abuse a serviceman or woman in uniform—it is appalling that someone could abuse anyone in the street—but we know that it happens. I find it even more concerning that people in uniform have been refused service in a pub, hotel or similar leisure establishment. We need a national, cross-party effort to stamp that out, and if it requires new legal protections and legislation, we should be willing to bring that forward. I would vote for it, as I am sure many other Members would.
Secondly, not all discrimination is overt, as we should continue to recognise. Sometimes how we run our society produces institutional problems for service personnel because of the different way that their lives are structured. We have heard in the debate that such problems include everything from getting credit at the bank to getting a mobile phone contract and problems accessing health care and schools. There must be a way to solve such problems. I know that a great deal has been done in recent years, but we are clearly not there yet. It is a widely held and shared concern on both sides of the House.
Thirdly, there are concerns around mental health, which the hon. Member for Plymouth, Sutton and Devonport (Oliver Colvile) ably discussed. We have asked our armed forces to do an exceptional amount over the past decade, particularly the Army. An incredible number of soldiers have served in combat situations. In the years ahead, we must honour that legacy by investing the appropriate amount of money into research into how best to provide for those people to safeguard their long-term well-being.
I briefly want to mention Army redundancy. This is not the debate or the day for any sort of partisan exchange, but the personnel who are leaving the military in the years and months to come will need a great deal of support. Will the Minister say what the Government plan to do to provide the assistance that they need?
Armed Forces day is an important national event because it allows us to show our respect not only to those who have served, but to those who are currently serving. We can highlight a lot of initiatives and good practice around the country that help us do that. In my area, we have ensured that our war memorials are memorials not only to the first and second world wars, but to the people who have lost their lives since those conflicts. That move has been very well received by their families.
Sometimes, things like Armed Forces day are criticised for being part of some sort of creeping militarisation of society. I reject that entirely. The public want an opportunity to show their respect. In my area, they will have that opportunity and it will be well received, although I cannot say that it will be quite on the scale of the “Star Wars”-themed celebrations that my hon. Friend the Member for Stockton North described. People appreciate such opportunities. The show of support for such events in recent years is extremely good and it is welcome that people have such chances.
Given that we have the Minister’s attention, I would like to raise one constituency campaign with him. He is aware of it, because I have sent quite a bit of casework to him recently on how we can assist veterans who have lost medals that have been stolen or misplaced. A Ministry of Defence programme allows that to happen, and a certain amount of evidence obviously needs to be provided, but for some, the level of bureaucracy required is a little too much. Could more effort be made to give veterans a chance to replace their medals, particularly those that have been stolen? It would be extremely well received.
It is a pleasure to speak in Parliament in an event such as this. It is important that a message goes out from Parliament that we are very big supporters of things such as Armed Forces day, that work goes on across all parties to support our armed forces and that we, as parliamentarians, are always available for the armed forces to have dialogue not only with Government, but with Parliament. We have been able to do that through, for example, the all-party group on the armed forces. People should be aware that such work is ongoing and that many of us are very big supporters of the armed forces now and in the years to come, whatever the situation in terms of future conflicts, structures and presentation.
Gemma Doyle (West Dunbartonshire) (Lab/Co-op)
I am delighted that we are serving under your chairmanship today, Mr Gray. I congratulate my hon. Friend the Member for Stockton North (Alex Cunningham) on securing the debate to mark Armed Forces day, which is taking place later this month, and all the Members who have spoken.
Armed Forces day gives us the opportunity to pause and reflect on the bravery and sacrifices our forces make, doing what is asked of them without question or hesitation, and so often placing their lives on the line to protect others. This year on Armed Forces day, we will once again think about those who continue to serve in Afghanistan of course, but also in other theatres around the world. The bravery and professionalism of our forces, past and present, should be recognised.
I agree that medals should be earned, not expected, and I welcome the medals review. Decisions on awarding medals should remain free of party politics. I believe that the Conservative party has had its fingers a little burnt recently over that issue. The process needs to be open and transparent, and those who make the decisions should be accountable in some way.
As an Opposition defence spokesperson, I am fortunate to meet and visit service personnel around the UK. In the past year, however, I have also visited them in the Falklands, where they are very far from home, but make use of the excellent facilities there and ensure the security of the Falklands along with the South Sandwich Islands and South Georgia. Last month I visited Bosnia, where our intervention in the ’90s helped to end the horrific atrocities that were taking place. A few days after returning from that visit, I attended the yearly service for Dunkirk veterans at Jamestown parish church in my constituency, with an excellent sermon, as usual, from the Rev. Norma Moore.
Thinking about Dunkirk and our actions in Bosnia made me reflect on the huge variety of tasks and operations that we ask our soldiers, seamen and airmen and women to undertake, sometimes in the glare of the media spotlight, sometimes away from the cameras, but always with the utmost professionalism and dedication. We are lucky that we still have veterans with us who were at Dunkirk. They remind us of the true value of freedom and why standing up for it at home and around the world is so important.
We should also remember that our veterans’ community in 2012 is varied. It includes you, Mr Gray, and the Minister, as well as the men and women who served in world war two, the Falklands, Bosnia, Libya this year and of course Iraq and Afghanistan, to name only some theatres. I pay tribute to my hon. Friend the Member for Bridgend (Mrs Moon) for all her work, particularly the “Standing Next to You” exhibition, which helps us understand the veterans’ community better. Indeed, it is one of the reasons why, when I entered Parliament, I was keen to be involved in defence issues: my generation is part of the new generation of men and women who have seen battle, witnessed harrowing sights and undertaken operations with a courage most of us cannot imagine. Some of them have survived appalling injuries, and live with the consequences every day, and some of course did not survive, and their families and loved ones miss them every day.
The medical and rehabilitation care that the injured receive in the UK is second to none, but in the years to come many will require continuing support in the form of equipment and treatment. The Government have made welcome progress in the provision of prosthetics, but they should consider what guarantees should be provided for those with other long-term, life-changing injuries. As hon. Members have said, we must especially remember on Armed Forces day those who made the ultimate sacrifice for their country—from those long fallen, to those men and women whose names, unfortunately, we still hear in news bulletins. Their sacrifice will never be forgotten.
In the past year, we have reached an agreement in the House to recognise in law the principles of the armed forces covenant, securing a new bond between the Government and the forces. The last service personnel Command Paper paved the way in introducing many of the changes that are now considered integral to the covenant, from better access to health care to greater levels of compensation for injured personnel under the compensation scheme. It marked a sea change in the way our forces were treated, across Government. We now need the Government to show us where the next steps lie. I have asked the Minister previously what is happening in government and the public sector to conform to the principles of the covenant. I am yet to be reassured that sufficient action has been taken. I do not doubt the Minister’s commitment to making the change a reality, but the covenant will be worthless unless it is backed up by action. We need a wee bit more of that action.
Disappointingly, even now, when public awareness of the forces’ work is higher than ever, the recent report by Lord Ashcroft, “The Armed Forces and Society”, which some hon. Members have mentioned, reported that about one in five members of the forces have been refused service in a bar or hotel while wearing their uniform. That is unacceptable deliberate discrimination. The service community can face other discrimination, as my hon. Friend the Member for Stalybridge and Hyde (Jonathan Reynolds) mentioned, creating difficulties in matters that we take for granted: getting credit, mortgages or even a mobile phone contract, because they have moved around so often. We should not just accept that as inevitable. The principles of the armed forces covenant should apply throughout society. When those principles are routinely or blatantly breached it may be necessary to consider introducing measures to deal with it. Routine disadvantage or discrimination should never come hand in hand with serving one’s country. Our forces should not have to expect or put up with routine deliberate or indirect discrimination, whether that is in access to hotels, pubs, housing, health care, mortgages or mobile phones.
Lord Ashcroft’s survey highlighted the fact that about the same proportion—almost one in five—of the armed forces had been verbally abused while wearing their uniform. My right hon. Friend the Member for East Renfrewshire (Mr Murphy) last week outlined how we think that matter could be dealt with. There are already legal protections in place for other groups in society, and we believe we should consider whether they should be extended to our forces. The Minister said at Defence questions last week that he is always willing to discuss issues on a cross-party basis. May I press him to say whether he is willing to enter into cross-party talks on this matter? We would like to work with him on the issue.
More than 4,000 members of the forces were given their marching orders last week. Yes, many of them volunteered, but some of those who did so were worried that they simply did not have a future in the services. I asked the Minister last week—I hope he may have an answer today—how many vacancies for posts comparable to those being lost are being advertised in the three services.
Jim Shannon (Strangford) (DUP)
Is the hon. Lady aware of the pensions issues affecting service personnel who have been given their marching orders before their time—that some of them, if they were to continue in employment for another month, or perhaps three months, would qualify for a full pension? Does she feel, as many do, that that should be honoured?
Gemma Doyle
I am indeed concerned about that issue, and will ask the Minister to respond to that point.
The Government need to be honest with MPs and the forces about the impact of the cuts on the UK’s capability. As the hon. Member for Strangford (Jim Shannon) points out, it has been reported this week that soldiers were sacked days before they would have become entitled to a full pension. Will the Minister look into that issue, to ensure that people have not missed out in that way? Will he comment on reports today that the Government are considering increasing by five years the age at which forces personnel can receive a full pension?
The Government intend to rely much more heavily on reservists in future, and the Minister will, I hope, recall that when the Armed Forces Act 2011 was in Committee I drew to his attention concerns about the fact that Reserve Forces (Safeguard of Employment) Act 1985 was listed on the Government’s Red Tape Challenge website as under consideration for scrapping. The Act gives reservists employment protection. It protects against unfair dismissal by making it an offence to sack someone because they are likely to be mobilised, and gives a right to reinstatement to their job. In Committee, the Minister said that he believed the Act had been superseded by the Reserve Forces Act 1996, but that Act makes it clear that the 1985 Act is still necessary. Will the Minister clarify the Government’s position, given that the 1985 Act is still listed on the Red Tape Challenge website? Will the Government ask more of reservists, while scrapping their employment protection? That issue should be re-examined.
Redundancy is not a concern only for servicemen and women, of course. It is a big worry for forces families, because when people lose a job in the forces it is not only the loss of an income that must be dealt with—it can also be the loss of a home and a way of life. Forces families put up with an awful lot, and we do not do enough for them. We need to do more on many issues, not least improving the air bridge when serving family members are deploying or coming home, spouses’ employment, and housing.
Housing remains one the issues—if not the issue—that causes most concern among service families. The recently published Army Families Federation annual report of inquiries from 2011 bears that out. Housing came top of the list. The Minister has brushed that concern aside at the Dispatch Box, but he needs to be honest about the fact that the money that the Chancellor announced for forces housing in the Budget—which is very welcome—still leaves a gap of £41 million, because £141 million had already been cut from the budget. The Minister may want to pull the wool over our eyes, but I think he knows he cannot do that with service families or service charities. I urge him to think carefully before making any changes to the rules on service accommodation. He will know that leaked plans to change the entitlement to married quarters were not well received earlier this year. Perhaps he will tell us whether that is still being considered.
I again congratulate my hon. Friend the Member for Stockton North on obtaining the debate, and thank him. Our forces make immense sacrifices in all aspects of their lives, showing courage in defending our country. They have our gratitude and thanks. They will face challenges in the coming years, but I am sure that, as with everything else that is asked of them, they will put everything to one side and get on with the job in hand. In West Dunbartonshire we shall hold our own celebrations on Sunday and I am sure that the national event in Plymouth will be a great success.
The Parliamentary Under-Secretary of State for Defence (Mr Andrew Robathan)
It is a joy to serve under your chairmanship, Mr Gray, particularly since you are, of course, the chairman of the all-party group on the armed forces. I congratulate the hon. Member for Stockton North (Alex Cunningham) on securing this debate to discuss Armed Forces day and on his speech. We have heard from several hon. Members—I shall come on to their individual speeches later—who have shown their support for the armed forces. We must remember that the fortitude of those who served in the past has shaped the armed forces of today.
Armed Forces day is a great opportunity for the nation to show its support for its regular and reserve forces. Importantly, it also allows us to show our appreciation for their families, who are such a vital part of our defence effort. It marks the contribution of former service personnel of all ages—from those who have recently left in their 20s to those who may be in their 90s, or indeed people in their late middle age, such as myself.
Last month, the armed forces mustered to mark the 60th anniversary of Her Majesty’s accession to the throne. Crowds gathered at Windsor and service personnel did themselves and their respective services proud. It felt like a sort of family occasion, and I felt both proud and privileged to be invited. I was slightly worried that the day would fall flat but, in the event, it was a brilliant occasion. Marching on sand is always difficult—there was sand in the arena—but the services did extremely well.
I pay particular tribute to the Royal Air Force, which led a brilliant and emotional fly-past. One has to be careful about what one says in the House, but despite the old joke that the Royal Air Force does not normally work at weekends, it was present at this Saturday event—I see a wry smile from a serving officer in the public gallery. I reiterate my appreciation of all three forces, but especially of the RAF, which led this excellent fly-past.
Two weeks ago, the armed forces were at the centre of the ceremonial procession for the service of thanksgiving, and they paid a tribute to Her Majesty on the forecourt of Buckingham palace and in the sky above. This weekend, the Queen’s birthday parade on Horse Guards parade took place—I am glad to say that it was dry. Again, I was privileged to be there, as I suspect were other hon. Members. Indeed, I am sure that the hon. Member for Strangford (Jim Shannon), who is in the Chamber, was there. It was an excellent occasion and my old regiment performed especially well. The crowds in the Mall showed their appreciation to Her Majesty on her diamond jubilee, and to the armed forces that work with her so closely.
We all remember times not so long ago when members of the armed forces were actively discouraged from wearing their uniform in public and lived under constant threat from terrorism. Many of us used to search underneath our cars to establish whether it was safe for us and our families to travel in them. Such a practice was not unique to Northern Ireland; it was standard in all military communities. Thankfully, those days are behind us and, God willing, they will not return.
Public support has never been higher. For example, we have all been touched by the scenes at Royal Wootton Bassett. Who has not shed a tear seeing these brave young men coming back from Afghanistan in coffins? Members of the public have travelled great distances to attend the repatriations, and similar scenes continue today at RAF Brize Norton. Such respect is deeply appreciated by not only the families, but service personnel themselves. I have spoken with many of them in Afghanistan and at home, and they say that these events are of huge importance to them.
Public support is not limited to repatriation ceremonies. Today we see homecoming parades in which returning service personnel parade through local towns and villages. Thousands of members of the public line the streets to applaud their return and take the time to reflect on those who never made the journey back. In addition, military ships, regiments and units will often be granted freedom of the borough, which is also marked by a military procession through the streets of their home town. The unit 3 Rifles exercised such freedom in the constituency of the hon. Member for Stockton North. Last year, I went to Market Harborough to celebrate the freedom of the borough being awarded to the Royal Anglians. Today we have a march into the House of Commons, which people should see because it is a much appreciated ceremony.
Before turning to the matter of Armed Forces day, I would like to make a brief mention of that other notable annual event—the 11th day of the 11th month marking Armistice day. It is heartening to see that this event continues to gain in stature and significance as each year passes. The two-minute silence is one of those rare moments when the nation pauses to reflect on those who have made the ultimate sacrifice to allow us the freedoms that we enjoy today.
Derek Twigg (Halton) (Lab)
Will the Minister say when the Government will set out their plans for marking the 100th anniversary of the start of the first world war?
Mr Robathan
I am happy to give the hon. Gentleman an answer on that score. We have been working hard on those plans; indeed, I spoke to my French counterpart earlier this month about exactly that. Of course the French are particularly concerned about the great war, as it was fought over their soil, so we are working with them. My hon. Friend the Member for South West Wiltshire (Dr Murrison), as the Prime Minister’s representative, is going around the Commonwealth and the allied nations to see how we should mark the anniversary in two years’ time. There are no surviving service personnel from the first world war, but its memory is deeply etched in our regimental traditions and in the psyche of Britain and other nations. It is important that we commemorate—not celebrate—the first world war with the right level of remembrance, that we understand the awfulness of it and the impact it had on 20th century history, and that we educate the young people of this country to understand what it was about and the effects it had. I assure the hon. Gentleman that we are taking the matter seriously, not least because people such as him will harass us if we do not.
Armed Forces day is a celebration of the unique contribution that committed servicemen and women continue to make to the nation. It has become a valuable occasion in the last few years, although this year marks only the fourth Armed Forces day. The first time such a format was adopted was in 2006, when Veterans day was initiated—I am not sure whether the hon. Member for Halton (Derek Twigg) was responsible for that. The day sought to raise the public profile of veterans and the support available for that diverse community. There was a series of events throughout the country, including one at the Imperial War museum. The following year, an event in Birmingham included a parade of standards, and Blackpool had its turn in 2008. However, it was thought that more could be done, because Veterans day did not seem to reflect the fact that current service personnel were deployed in the most demanding area of conflict. The previous Administration commissioned an inquiry into the national recognition of our armed forces that led to measures to highlight the contribution of all those who serve and have served in the armed forces. One measure was to expand Veterans day to a more inclusive Armed Forces day, and the strap line “Show your support” was printed on flags that were flown on all Government buildings and town halls on 25 June 2009. A national event took place in the Historic Dockyard in Chatham the following day. Members of the reserve forces were invited to wear their uniform to work, as will be the case next week, and former service personnel were encouraged to wear a veterans’ badge. In addition, local communities held their own Armed Forces day events. The Yorkshire Regiment marched through Stockton and received the freedom of the borough.
In 2010, the celebrations took place on 26 June with the national event being hosted by Cardiff. That built on the success of the previous year, with some 260,000 fans being recorded on a dedicated Facebook page and Armed Forces day getting almost 1,300 followers on Twitter. The fly-the-flag initiative continued to expand and, once again, wearing uniform to work was encouraged. That year more than 170 registered events were held to mark the occasion throughout the country.
In 2011, Armed Forces day was hosted in Edinburgh. There were some 1 million followers on Facebook. I am not a devotee of either Facebook or Twitter—I see the shock on the faces of several hon. Members—but I do vaguely know what they are. As a matter of interest, some 72 celebrity supporters provided messages and videos of support for the Armed Forces day website, which had more than 41,000 visits on the day and more than 142,000 page views.
As we have heard, Plymouth, a city with a rich military history, will be acting as host city on 30 June. Activities are planned up and down the country for schools, cadet forces and veterans’ organisations. Uniform-to-work day is planned for 27 June, which will highlight once again the vital contribution our reservists make to the armed forces. Naturally, the armed forces themselves will be taking part in Plymouth and elsewhere. Once again, this will be an opportunity to celebrate their vital and wide-ranging contribution to our nation.
Armed Forces day allows communities to come together and plan their own events to show their support. Sometimes they are social occasions in a village hall or a community centre, or they can be something involving “Star Wars”—I am not sure what that is exactly. Other Members also look slightly puzzled, but we shall see in a couple of weeks. An occasion does not always have to be formal, with service personnel in uniform, for it to be successful. I know that service personnel welcome the personal tribute as a sign of appreciation. On this day, they want to be shown that they are special because of the work that they do.
Of course, our armed forces are busy on operations in Afghanistan and elsewhere. They will form a notable presence to support a number of diamond jubilee events as part of Her Majesty the Queen’s regional tours. Their support during the Olympic games will be an important defence task this summer, and we are contributing a large number of personnel—mostly regulars, but some reservists—to provide support to the police, and other civil and Olympic authorities.
The hon. Member for Bridgend (Mrs Moon) talked about the reorganisation of the Army but, if she will forgive me, I will not go into the details of that because a decision is yet to be made and it would therefore be inappropriate for me to speculate about what the announcement might contain. I genuinely do not know what it will say about individual units, and I think that we all understand the importance that individual units can have, particularly in local traditions.
The very basis of the armed forces covenant is to remove any disadvantage incurred as a result of service. It acknowledges that the armed forces community is entitled to recognition for the unique contribution it makes on behalf of this country.
A few things that I shall now discuss were mentioned by Opposition Members. We are working on a defence discount scheme to help to provide special offers and discounts to members of the armed forces when purchasing goods and services, and I will update the House on the scheme shortly. In addition, many businesses provide concessions to servicemen and ex-service personnel. The “tickets for troops” initiative allows service personnel and their families to attend sporting fixtures and film premieres free of charge. The covenant sets out the principle that those who serve or have served in the armed forces, as well as their families, should face no disadvantage compared with other citizens regarding the provision of public and commercial services, and that special consideration is appropriate in some cases, especially for those people who have given the most, such as the injured and the bereaved.
The interim annual report on the armed forces covenant, which was published last year, was written in conjunction with our key partner charities, the families federations, other Departments and the devolved Administrations, all of which are members of the covenant reference group. The report highlighted progress across a range of areas and identified work still to be done. Such work has to evolve, because times and conditions change.
My hon. Friend the Member for Plymouth, Sutton and Devonport (Oliver Colvile) made a good speech in which he raised several issues related to the covenant, particularly schooling. We are determined that when service personnel move around the country or come back from abroad, their family members will not be disadvantaged in schools, and that is specifically written into the covenant. That involves co-operation with teachers and schools, although we do not necessarily want the heavy hand of the state banging down on a primary head teacher who is struggling with a lot of other problems. We are determined that children and families should not be disadvantaged because of service elsewhere.
My hon. Friend also mentioned the pupil premium. The idea of the premium, which we introduced, is to compensate for movement. There are other ways in which we will support the children of service personnel who have been killed in combat, so I am not sure that the pupil premium is the right way forward on that point. There are, for instance, scholarships for the children of those who have been killed in service.
My hon. Friend talked about reservists’ mental health, and I can assure him that we are very concerned about that because if reservists disappear back into the general population, it is more difficult to get hold of them. He also mentioned employment. Not all, but most people who leave the armed forces are very employable, and I would encourage any employer to look favourably on them because I think that they would find that they, not just the person they took on, would gain from that.
Discrimination has been mentioned, and I was delighted to hear Labour Members describing Lord Ashcroft as an exemplar that they wish to follow, because it is fair to say that that has not always been the case over the past few years. For 18 years, I had the privilege of being proud to wear Her Majesty’s uniform. There was discrimination, but one was proud to wear one’s uniform, although, as I have mentioned, one tended not to wear it out of barracks. I recall going to a club called Joe Bananas in the Wan Chai area of Hong Kong—I see one or two Opposition Members with guilty faces; they have obviously been there as well—and there was a sign that I think said “No troops”. It was just down the road from the royal naval base, HMS Tamar. I and my two colleagues—all of us company commanders—remonstrated with the very large bouncer on the door about that, and he let us in. Such signs are not that different from others that were put up in windows in the past, which we have now outlawed.
I am glad that attitudes are now rather better—not that I have been to Joe Bananas in the past 25 years—but they are not perfect. The covenant tackles genuine problems that have been raised. I am rather sceptical about whether legislation is needed, but I am happy to talk about it. The sort of discrimination that has often hit the headlines has been, for instance, “Officer training course banned from freshers fair at university”, or “Uniform forbidden in student unions”—or indeed in schools, because some teachers object to it. Perhaps the hon. Member for West Dunbartonshire (Gemma Doyle) will pass on to the right hon. Member for East Renfrewshire (Mr Murphy) that I seem to remember National Union of Students motions about getting troops out of Northern Ireland. Such motions were pretty unfriendly to the armed forces, so I am glad that that attitude has changed—[Interruption.] The right hon. Member for East Renfrewshire was a president of the NUS, as I am sure the hon. Lady remembers. We need to be careful before we create more work for lawyers. We need to consider whether the best way forward is to introduce legislation, or whether we need to work further on attitudes, although they have changed dramatically over the past few years, as we have heard.
Mrs Moon
The right hon. Gentleman referred to the troops out of Northern Ireland campaign—I remember it well—but we have an ongoing problem with differentiation. We had it with Iraq. Many people were unhappy about the involvement of our armed forces there, just as there were people who were unhappy with our forces being in Northern Ireland, but it was not the armed forces they objected to, but our political decisions. We must be careful to differentiate between the political decisions that lead the armed forces to carry through our wishes, and the armed forces themselves. These are attacks not on the forces but on the political decisions, and I hope that the right hon. Gentleman does not object to my making that differentiation.
Mr Robathan
The hon. Lady is absolutely right. That is the right differentiation, and it is particularly true for Afghanistan. Polls show that a large proportion of the population perhaps opposes our involvement in Afghanistan, yet at the same time supports our troops there. That is an important distinction. There has been a change in attitude because, if we go back 30 years, that was not the case in Northern Ireland. Our troops there took a lot of individual abuse—I know that to be the case. The hon. Lady is right to raise this important distinction, and I applaud that. It is not our soldiers’ fault that they are in Afghanistan; it is because they are following the will of the Government and of Parliament.
It is important to recognise that we as a Government cannot do everything. The hon. Member for Stockton North talked about the community covenant. The covenant was launched by my right hon. Friend the Prime Minister last year in Oxfordshire and is hugely popular. There are now some 50 community covenants, with another 50 pending, and I will be at Westminster council next week to witness the signing of the covenant there. Covenants are voluntary statements of mutual support between a civilian community and the local armed forces community, in the form of a written pledge. Usually, such local partnerships are made between the armed forces in an area and the local authority, being joined by local businesses, organisations, charities and other public bodies. I understand that the lord mayor of Plymouth will, on behalf of the city council, sign the area’s community covenant during the national event.
To turn to redundancy and pensions, may I say that making members of the armed forces redundant is not anything that we as a Government or I as an individual would wish to do? The redundancy terms are actually quite good. The hon. Member for Strangford mentioned the 18-year period. Soldiers normally have to serve for 22 years before they qualify for an immediate pension, but the redundancy scheme has reduced that by four years so that after 18 years of service, those selected for redundancy can qualify for an immediate pension. That will enable many individuals to receive an immediate income for which they would otherwise not have qualified. I am afraid that there always has to be a cut-off date. We have shifted it by four years, as I understand it, but unfortunately there has to be a cut-off date at some time.
Jim Shannon
Through the armed forces parliamentary scheme, I had the opportunity in the past few weeks to visit Cyprus, where I met some soldiers who are facing redundancy and, as a result, losing out on their pension. I am really asking the Minister whether there can be a bit of flexibility in the system to enable people to stay on for another six months so that they can qualify for the full pension.
Mr Robathan
The problem, as I have said, is that there always has to be a cut-off. We have shifted the date by four years—that was done by the services—which is a sensible allowance. Otherwise, we would have to allow everybody to serve up to the qualifying period. Redundancy is not something we wish to do. We are faced with a very difficult situation—I will not make any partisan points—and we cannot afford the level of defence spending that we had. Regrettably, we therefore have had to instigate redundancies, but I should say that the redundancy terms are pretty good. More than two thirds of those in the armed forces who are being made redundant are doing so voluntarily because they can see that such good terms will allow them to pursue another career. Everybody has to pursue another career in the long term, even me—I had to come into Parliament because I needed a job. Everybody has to leave the armed forces at some stage.
The hon. Member for West Dunbartonshire asked about other vacancies in the armed forces. I would be grateful if she would table a parliamentary question about that so that I can give a specific answer with the assistance of my excellent civil servants. I will need to write to her about the issue she raised about the guarantee of employment that we give to reservists. I promise her that it is not our intention to disadvantage reservists in any way; if that is the case, we will make sure that we do not do it.
May I say how much I appreciated—I do not often say this—the point made by the hon. Member for Stalybridge and Hyde (Jonathan Reynolds) about valued national institutions? This is one I think a great many people believe in. I would still recommend a career in the armed forces to anybody. My son, who is 15, surprised me recently by saying that he wanted to join the Army—his mother said, “Over my dead body,” but we shall see. This is something that we should encourage.
Mrs Moon
Youngsters in cadet forces in my constituency who were planning careers in the armed forces have raised with me the uncertainty that they feel. They particularly feel uncertainty in relation to the RAF, in which I take a particular interest. A number of youngsters were days away from completing their training when they were made redundant. We have to ensure that this round of redundancies, particularly those involving youngsters who have lost early commissions, does not leave young people who are about to enter the armed forces with the feeling that they might not be able to have a lasting career and complete the service that they so wish to offer their country.
Mr Robathan
The hon. Lady speaks with passion. Each individual case can be a matter of great pain for the individual concerned, so I entirely take her view. The problem is that if we are reducing the armed forces—frankly, that is not what we want to do, but we are compelled and constrained so to do—there will be fewer opportunities, so some people, I regret to say, will have to be made redundant or will not be given the job that they would wish to do.
Nevertheless, I still maintain that joining the armed forces is an excellent career and I wish everybody the best opportunity. It is true that a lot of people who wish to get into the armed forces now cannot do so, whereas not so long ago, when the economic situation was more buoyant, we were frankly a bit short of recruits. In many ways, although it is unfortunate for those who cannot get in, we are in a fortunate position in that we can pick and choose more than before. As I said earlier, it is important that people can learn valuable things, such as attitudes, values and skills.
The hon. Member for Stalybridge and Hyde mentioned replacement medals. If he would like to grab me, I will be happy to talk that through with him. He raises an issue, but it is one with two sides, as most issues are.
Our armed forces want and deserve to be valued. Not everybody in the armed forces is perfect, but they do an excellent job on our behalf. They do not want to be patronised. Most of them are high-quality individuals who can make their way in life, and they do not want to be talked down to; they want to be given opportunities, not to be discriminated against, and to carry on their lives in the best possible way. They deserve our support and recognition because of their outstanding contribution to this country. They make personal sacrifices to defend the United Kingdom and its interests, and they contribute to international peace and security.
A wide range of support and advice is already available from the Government, ex-service organisation charities and the voluntary sector. We are unwavering in our commitment to ensure that our armed forces and their families are not disadvantaged by service, and we will continue to raise awareness of the role of the armed forces in society. I urge all hon. Members and all members of society to show their support on Armed Forces day and to make it the success that service personnel, their families and ex-service personnel so richly deserve.
Mr James Gray (in the Chair)
I thank hon. Members for an excellent debate, and may I remind everybody that at 3.30 pm we will have the opportunity of welcoming 20th Armoured Brigade through the gates of Parliament?
Cancer Treatments
(12 years ago)
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John Pugh (Southport) (LD)
I thank all the people, from a variety of organisations, who made submissions before this debate in the hope that I could do justice to their thoughts and considerations. I may not succeed in doing so adequately, for which I apologise in advance, but other people in the Chamber, who are far better informed than me, can supplement any good, important or salient points that I fail to make.
It is a fact of the human condition that we are cell-replicating machines. I believe it is true—I am not totally certain, but I believe it is a truth—that none of the cells that were elected to this place in 2001 under the name of John Pugh are now here. They have all gradually been replaced, and some of them may actually be replaced during the course of the morning. That process goes on and on, and it is a very sophisticated one. When someone looks into the details of cellular biology, they are amazed that it occurs correctly as many times as it does. However, the longer we live, the more likely it is to go wrong, and when it goes wrong, we get the disease we know as cancer. It is a sad truth that the more we are saved from other diseases by progress in medical science, the more exposed we are to cancer.
Current stats show that, due to human longevity and the like, one in four of us are likely to die directly of cancer or a cancer-related condition. That will apply no matter what our success in investigating the environmental triggers for or the lifestyle causes of cancer.
We can all point to progress along those lines. We are no longer vulnerable to all the industrial causes of cancer, such as asbestos, and we took a momentous step forward in this place a few years ago when we backed the smoking ban, which remains the most useful thing I have done in Parliament, because it will undoubtedly reduce one of the major triggers for cancer. We now have to address other issues linked to cancer, such as obesity.
The disease is aggressive in youth and progresses slower with age, but, frankly, the longer we live, the more vulnerable we are to it. It is also true that many people will die with, but not of cancer. The challenge to any health system confronted with that crude biological fact is straightforward, and it is the same for any health system anywhere on the planet. I have divided the challenge under four headings. First, any health system needs to try to comprehend better the causes of cancer and initiate research. Secondly, any health system needs to try to prevent cancer and forfend its incidence. Thirdly, any health system—this is, of course, paramount—needs to cure people of cancer, where possible. Finally, any health and social system in any civilized society must help people living with cancer. Those four challenges are precisely the same for any health system anywhere, no matter how they are configured or delivered.
We have made substantial strides in the UK and our record should not be demeaned or lessened. During the passage through Parliament of the contentious Health and Social Care Bill, cancer stats were referred to and international comparisons were used to justify some of the changes. The oncology community had some misgivings about that, because its members felt that their real and substantive achievements were overlooked and that, for political purposes, people dwelled on what they had not achieved rather than on what they had.
The debate pack includes a good account of research by the King’s Fund and others on success in dealing with cancer. On European and international comparisons, an article in the pack states:
“While cancer deaths fell everywhere, England and Wales saw the biggest drop in mortality among males aged 15-74”—
that is, most males. The article continues:
“While mortality among women the same age declined by less, at 19%, that was the third biggest improvement”
in any civilised developed country in the world. We can, therefore, bank appreciable benefits and progress.
The difference between good and not-so-good policy is determined by the efficiency and effectiveness with which we approach the four fundamental tasks of comprehending the causes of cancer, curing people of cancer, trying to prevent cancer and trying to help people living with cancer, and by how intelligently we prioritise those tasks. An enormous amount of resources could be provided to address the problems presented by cancer, but such resources are not unlimited and we have to consider how we prioritise in every one of the four tasks. That applies to research, where people are continually examining how to prioritise the appreciable sums of money at their disposal in the most effective way. There are many debates about how we are to prioritise prevention and public health. Moreover, on prioritising treatment, recent discussions have centred on whether treatment for the elderly should be rationed or limited, because they may live longer with cancer but not actually die of it. There is also considerable debate, spearheaded by the likes of Macmillan Cancer Support, about the welfare provision for cancer patients.
I would like to turn briefly to public health, although it is not my main bone of contention. There has been a debate about how accurately we pitch our public health campaigns. Some have been excellent, particularly that on screening for bowel cancer, which I think has had an immediate and dramatic beneficial effect. My former colleague John Barrett is the former MP for Edinburgh West—he was elected in 2001—and he was diagnosed with bowel cancer through the screening programme shortly after leaving Parliament. He had absolutely no symptoms, but it is believed that it was caught in time. In fact, he was in Parliament recently and looked in pretty good shape to me. However, had the cancer not been detected—remember that he had no symptoms—it would have progressed as the years went by.
Glyn Davies (Montgomeryshire) (Con)
I thank the hon. Gentleman for giving way and allowing me to associate myself with the point that he is making. I am one of those whose cancer was found early, and I received treatment and survived. A younger friend of mine was diagnosed at the very same time, but his cancer was more advanced and he died aged 31. This is about catching it early and I want to emphasise the importance of screening, which saves a huge amount of lives. I have played a big part in driving forward the screening programme in Wales. Screening for bowel cancer is one of the best ways possible to save people’s lives.
John Pugh
I am sure that the hon. Gentleman is right and that he is also aware that there have been debates about screening for cervical cancer, breast cancer and so on, and about the age at which that should be done and the effect it would have. Although it is possible to screen everybody all of the time, that is not the most rational way to use resources, so any screening programme needs to be judged in the light of its subsequent evidence, which is very strong indeed for the bowel screening programme.
I was slightly, not amused, but distracted by the recent Department of Health advertisements—there were big adverts on buses—stating that anyone who has been coughing for three weeks should definitely go to see their doctor, because they might have lung cancer. When the advertising programme was launched, a horrible virus had gripped my office, the most lingering symptom of which was a cough that lasted for three to five weeks. Had we all trooped to our doctors’ surgeries saying that we might have cancer, a good deal of national health service time would have been wasted. Any campaign needs to be sophisticated and reviewed in the light of evidence. The one thing that we do not want a public health campaign to do is provoke alarm, because that would distract doctors from the things that we genuinely want them to address. People are not slow to be alarmed by any suspicion of cancer, which, I believe, after pornography and some other subjects, is one of the most researched topics on the internet. It is frequently referred to on various medical sites as a suspicion, rather than a diagnosis.
The academic community also has to prioritise. A lot of people leave substantial amounts of money for cancer research and it needs to be used as effectively as possible, as do welfare payments to cancer patients. Those issues need to be prioritised—Members may care to discuss that in the context of the Government’s ambitions for the outcomes framework.
I want to concentrate on the connection between treatment and health policy. The clinical armoury and tools available to medical science are pretty well known and can be put under four headings: chemotherapy, radiotherapy—possibly supplemented by more sophisticated treatments, such as proton beam therapy—drugs and surgery. A cocktail of those methods is used to treat cancer. All, in their place, can be extraordinarily useful and effective interventions, but the key thing that determines whether they have the maximum effect on and benefit for patients is whether they are used with skill—the right skill at the right time in the right place, and probably in the hands of the right doctor or consultant.
I learned relatively recently that, although we talk broadly about categories of cancer, there are sub-categories within those categories, and not every sub-category is responsive to the same treatment. Knowing which treatment is best tailored to which patient is a genuine art, because patients and their histories are all very different, as are the remedies that work with them.
Improved outcomes are to some extent determined not simply by having the tools but using them with better and greater skill. It is the skill or its absence that explains differential outcomes. There are differential outcomes across the UK. The chance of recovering from certain cancers in some areas is greater or less than in others. The chances of acquiring certain cancers appear to be greater in some areas than others. Genuine skill—knowing what to use on what person at what time—is in extraordinarily short supply. That sort of skill, the really effective intervention, is often allied with establishments that not just treat cancer, but research into cancer. Great skill is often, not unsurprisingly, aligned with a greater understanding of what is being dealt with. Treatment of cancer is not usually a journeyman matter or one of bog-standard clinical intervention and practice. That is why organisations such as the Christie hospital have such a well-established reputation.
I know the Government have put extra money into the drugs fund. Using the right drug in the right place at the right time is a fairly refined process. People can be given drugs that work with a cancer in general, but not for that particular patient or not at that stage in the disease, by organisations relatively unaware of the futility of the intervention. Therefore, we have all understandably come to the conclusion that we need clinical networks. We need to have people dealt with in the appropriate centres of excellence. There is a genuine readiness by patients to travel as far as they need to get the treatment. Most people in my constituency who contract any form of cancer travel across Liverpool, normally to Clatterbridge on the Wirral, generally without too much complaint, to get the treatment they want. The same group of constituents has been extremely angry and provoked by the need to travel 11 miles down the road for A and E assessment and triage.
Mr John Leech (Manchester, Withington) (LD)
My hon. Friend may not be aware that the Christie hospital has opened satellite centres in Oldham and Salford, so that patients do not necessarily have to go all the way to Christie, as they would have had to in the past. They still get Christie service, but in their local community in Salford or Oldham.
John Pugh
I think that is becoming the common pattern and could create some problems, given the way we intend to structure the NHS. However, it is a wholly desirable pattern. Clatterbridge is looking at a similar arrangement across Liverpool in collaboration with the Royal Liverpool University hospital. There is a sensible willingness on the part of the ordinary district general hospital to refer patients into an area where the maximum competence exists and where it is a matter of life and death. That is a totally laudable example of integrated service.
We can all accept there is a need to have an adequate clinical network, particularly for the more common cancers—lung, colorectal, prostate and breast cancer—in pretty well every area. That is a template that either is rolled out across the land or we wish to see rolled out around centres of excellence. We must always bear it in mind that, with cancer, a certain number of standard procedures can be done locally, without the full expertise of the top consultant.
There are certain cancers where that is not the case, for which we need national centres of excellence. To return briefly to the Liverpool Cancer Research UK Centre, that deals with pancreatic cancer almost as a speciality, with people there researching it very intensively. Its view is that there are probably about only two cases in the UK—and there may only ever be, given the relative distribution of that disease—where whatever treatment the patient gets can make a difference to outcomes, because the cancer is almost invariably fatal. It is necessary to vary the mix depending on the cancer in question. However, for the most common cancers, having a centre of excellence, having hubs around which standard procedures can take place and having a clinical network that works, is the way to go.
That sort of network does not happen by accident. Other hon. Members, apart from me, have asked how under the new regime it will be maintained and sustained. The construction of such networks in the past was the function, duty, mandate and overview of the strategic health authorities and they, of course, are to go. I saw in the notes that they would still be dealt with under the strategic health authority bundle within the NHS Commissioning Board. Clearly, “strategy” is the word to be used here. The hon. Member for Leicester West (Liz Kendall) was fond of saying that during the passage of the Health and Social Care Bill. The key point is that the strategy and the template are clear; the question is how to get them in place, sustained and maintained over time under the new regime. I would like the Minister to reassure me on that point.
It is not obvious how such a desirable template would emerge through simple market forces, or through bottom-up agreements by local commissioners. Even if those things could happen, it is not obvious that that would represent the most secure or quickest way to bring about the outcome. That is especially so when one acknowledges that the best treatment often occurs in environments where there is not only integration between providers, but research is taking place. I repeat the point that there is a need to deliver various levels of intervention and care in various settings. That will not happen by accident, or without some institutional resistance. One proposal in Liverpool is to move some of the activities currently conducted in Clatterbridge to the Royal hospital and get very substantial funding for that. That proposition, though supported by the bulk of people, is not supported by all. A certain amount of controversy may still arise about the level of care that could be delivered or result from such changes, which are not effortlessly brought about.
I guess that I am trying to say that ironing out the inequalities in cancer outcomes, ensuring there is the same provision and that each network is as good as any in every area, is possibly susceptible to a more dirigiste approach or Stalinist-like solution. I understand that the chief executive of the NHS was once a member of the Communist party—I hope I am not maligning him. That approach has its attractions. If the NHS Commissioning Board, which shelters the skeletal remains of the strategic health authorities, could play a dirigiste role, acting like the Politburo to impose the right template in every place, one could see how facilities could be aligned and personnel put in the right place. There would also be an opportunity to use central funding to effect. The Government have set up some central funding both for drugs and other purposes.
I have no issue with that way of doing things, provided it is rendered accountable. However, under the new dispensation, I can see problems in going down that particular road. Some of the provision we would want in place, for example, proton beam therapy, will require substantial capital investment. Under the new regime, if I understood what the Minister said during Health questions, substantial capital investment is primarily the responsibility of providers. So we have to hope that, in all places across the UK, all providers dealing with the common cancers feel obliged to make the same level of investment. I am not sure that there is an easy way to ensure that that happens. Clearly, the NHS Commissioning Board can commission clinical networks, just as it can commission any other piece of health provision. However, providing a substantial capital grant to a provider might create problems, particularly if it is contested by other providers. Providers may be reluctant to provide the kind of intensive capital resource that might be required when they have budgets to meet and control.
Last Tuesday, an hon. Member talked nostalgically about the days when we used to have fundraising for all kinds of scanners in hospitals. That does not seem to have taken place in the past decade or so because the money has been flowing a little more plentifully. However, we could be back in that territory if providers have difficulties in acquiring appropriate capital investment, or do not see a business case for doing so, without subsidy, by themselves.
I imagine that there are concerns about patterns of referrals within clinical networks, which, again, will test the new system. For example, dermatology providers that are unable to cope with cancer and oncology outcomes—there are such dermatology providers; I think they are now called Virgin Medical—will, under any willing provider, be one of the first ports of call for referrals, especially if they have partners in GP practices who are inclined to use them. At the same time, that may not be the right thing to do clinically, given its complexity. As incidences of melanoma have increased, it may be far better to refer people not to a dermatology provider that cannot do oncology, but to a dermatology provider that can—essentially, the existing hospital base. I can see that being a good thing clinically, but something that is contested in practice if it becomes a settled pattern.
I think we all know where we want to get to. I know that many other things need to be said and I hope other hon. Members will say them. My question is, given that there is a whole raft of agreements and evidence about the objectives and the point at which we want to end, how, under existing or future arrangements, will we ensure that the best outcome is delivered? In other words, how do we get the right clinical configuration to achieve the right clinical outcomes?
Mr Virendra Sharma (Ealing, Southall) (Lab)
It is a pleasure to serve under your chairmanship, Mr Gray, and to contribute to this important debate. I congratulate the hon. Member for Southport (John Pugh) on securing it.
Macmillan Cancer Support estimates that 2 million people in the UK today have had a cancer diagnosis—the number is expected to continue to rise by 3% a year—and that nearly 4 million people will be living with cancer by 2030. Currently, 8,000 people are living with, or beyond, cancer in my constituency alone. Those figures show clearly that the NHS has a demographic challenge on its hands. It will need to become ever more efficient in treating and supporting cancer patients if it is to continue to meet clinical and non-clinical needs and deliver improved outcomes.
Surprisingly, the findings of the international cancer benchmarking project 2010 revealed that survival rates of cancer patients in England continue to lag behind countries such as Denmark, Sweden, Australia, Canada and others. Decisive steps are needed to ensure that England matches the European average and to prevent the country letting down people affected by cancer. The Government have acknowledged that, despite some improvements, cancer outcomes in England remain poor when compared with the best outcomes in Europe, highlighting a significant gap that remains in both survival and mortality rates. In response, the Government put together a cancer strategy that set out a commitment to improve the outcomes and experiences of cancer patients and an ambition to save 5,000 additional lives a year by 2014-15.
I wish to focus first on how we plan to measure how well the NHS has responded to that cancer challenge and whether providers and commissioners are sufficiently incentivised to meet the Government’s ambition. The updated NHS outcomes framework for 2012-13 includes two cancer-specific measures to drive improvements in the earlier diagnosis and more effective treatment of cancer: for one and five-year cancer survival rates for breast, lung and colorectal cancer; and for the under-75 mortality rate from cancer. Although that is a welcome first step on the road to meeting the cancer challenge, I understand from charities such as Macmillan that those indicators are currently too limited, as they measure survival rates for the three most common cancers only. The NHS should be encouraged to improve earlier diagnosis of rarer cancers, which account for almost 50% of all new cancer diagnoses.
I have learnt recently that the commissioning outcomes framework for 2013-14, which will be used to measure improvements in cancer services and outcomes locally, might not even include one and five-year survival rates for breast, lung and colorectal cancer. That unhelpful disparity could result in clinical commissioning groups not placing enough emphasis on the early cancer diagnosis and, ultimately, undermine the ambition of saving 5,000 extra lives a year by 2015. At present, the cancer-specific indicators are too limited to truly measure how well the NHS is responding to the cancer challenge. I should be grateful if the Minister updated hon. Members on the plans to extend one and five-year cancer survival rates to cover more cancers and to include those indicators in both the NHS and commissioning outcomes frameworks.
The cancer strategy also provided that early diagnosis would continue to be a top priority and
“will be included in the mandate for the NHS Commissioning Board for the future”.
Ahead of the Department of Health consultation on the mandate, will the Minister provide assurances that the mandate will include an objective to improve early diagnosis for all types of cancer, as a way of improving outcomes?
Alongside improving early diagnosis and outcomes, the Government have placed a welcome emphasis on improving the experiences of cancer patients. I, too, congratulate the Government on agreeing to run the national cancer patient experience survey again in 2012-13. The national cancer patient experience survey 2010 revealed that
“white cancer patients report a more positive experience of care than other ethnic groups—particular differences were noted on questions around receiving understandable answers, being given enough care after discharge and staff working well together.”
Similarly, people with a disability or mental health conditions, people from the lesbian, gay, bisexual and transgender community and people with rarer cancers also reported a less positive experience.
In Ealing Hospital NHS Trust, only 48% of patients responded that they got understandable answers to questions all or most of the time and only 51% responded that patients had confidence and trust in all ward nurses. The Department of Health has stated that
“commissioners will wish to encourage providers to take note of the differences and to consider positive action to address the distinct need of people from different groups.”
I believe that the Government’s approach to improving patient experience could be even more proactive. The national cancer patient experience survey should be developed as an indicator and included in the NHS outcomes framework. That is the only way that commissioners, providers and the NHS Commissioning Board will have a clear incentive to address areas identified for improvement. Will the Minister explain whether there are plans to correlate the cancer patients experience survey with the NHS outcomes framework to improve outcomes?
Now that the Health and Social Care Act 2012 has been passed, the Government have an opportunity to refocus on effective implementation of their reforms and, more specifically, on delivering their commitments to improving cancer outcomes. It is my view that every cancer patient—regardless of who they are, where they live or what cancer they have—has the right to high- quality care, support and treatment. I ask the Minister to consider the contributions that he hears today to make sure that England’s health and social care system is not just meeting the European average for cancer outcomes, but taking the lead.
Mr John Baron (Basildon and Billericay) (Con)
I congratulate my hon. Friend the Member for Southport (John Pugh) on securing this important debate. The all-party group on cancer, of which I am chairman, has consistently called for us to see the NHS reforms as an opportunity to improve outcomes for cancer patients, and I welcome the chance to highlight that once again.
Perhaps I should start by briefly taking us back to 2009, when the all-party group produced its report on reducing health inequalities. After a long evidence session, with oral as well as written submissions, we discovered that those patients in this country who reached the one-year point stood as much chance of reaching the five-year point as patients in any other country in Europe, but we fell down badly in getting patients to the one-year point. That tended to suggest that the NHS is as good as anybody else at treating patients—once detected—but poor at detecting cancers in the early stages in particular. Other hon. Members have made that point in this debate.
How do we encourage earlier diagnosis? There are few magic keys to solutions in life, but perhaps earlier cancer diagnosis is one of them. The 2009 report concluded that the best way of doing that was to focus on outcomes—to get the NHS actually to look at one and five-year survival rates, because late diagnosis makes for poor outcomes. Getting the local and national NHS to focus on one and five-year rates would encourage the local NHS in particular to drive forward initiatives and earlier diagnosis. We were grateful when the Government accepted the logic of that argument and included one and five-year outcome measures in the NHS outcomes framework. The NHS reforms essentially boiled down to two strands—two initiatives. One was the change in the commissioning structure; the second was the focus on outcomes. For me and for many in the all-party group, the focus on outcomes was by far the most important bit of the NHS reforms.
We welcome the Government’s response so far. The all-party group was pleased that, at the beginning of 2011, the Government released their strategy for cancer, which clearly highlighted the importance that they attached to the issue. They came up with a figure—an ambition—to save an extra 5,000 lives a year from cancer by 2014-15. We should remember that that would take us up to only the European average, not the best in Europe, but it is still a laudable ambition that we very much welcome.
We have had a constructive dialogue with the Government, experts and patients. I want to touch briefly—I am conscious that other hon. Members wish to speak—on some of the key recommendations from the all-party group that flowed from the 2009 report. We welcome the Government’s response to that report. Many others have made the same argument, but we played a small part in moving the Government in the right direction.
However, we are still ambitious with regard to some of our recommendations. For me, the first is key. There seems to be an anomaly in the different outcomes frameworks. We have the commissioning outcomes framework, which has the five-year survival rate as an outcome measure. We have the NHS outcomes framework, which has the one and five-year measures. The COF is the framework by which the clinical commissioning groups will be held to account for their performance, and we are arguing for the one-year measure to be included in the COF, just as the one and five-year measure is included in the national outcomes framework. In other words, we want standardisation.
Our concern is that if we have different outcomes frameworks focusing on slightly different things, or certainly not the same things, a disjointed message can be given. It is important that both the local and the national NHS focus on the same things. I raised that question—the Minister will forgive me for raising it in this debate—in Health questions last week. I was slightly worried about the response. The Minister will correct me if I am wrong, but he cited concerns with the quality of the data available for the one-year measure within the COF. If the one-year data are good enough for the NHS outcomes framework, why are they not good enough for the COF, particularly given that the NHS Commissioning Board will shortly provide geographic boundary data for the clinical commissioning groups? It should not be beyond the wit of man to transfer what we have in the NHS outcomes framework across to the COF once those data from the NHS Commissioning Board are available. I am led to believe that there should be no problem at all with how the data are cut. What does the Minister have to say about that?
To pick up the point made earlier by the hon. Member for Ealing, Southall (Mr Sharma), I also want to question the Minister about why we are not expanding the number of cancers in the outcomes framework. I have a little more sympathy with the Minister on the quality of the data on this one. Whereas I cannot understand why the one-year figures, which are in the NHS outcomes framework, are not included in the COF, I have some sympathy because of the quality of the data for expanding the three cancers that are already there. Those three cancers are obviously common cancers. They account for some 40% of all new cancer diagnoses—we are talking about breast, lung and colorectal cancers. The Minister accepts that there can be a disparity in survival rates between the common cancers and the rarer cancers. Our recommendation would in some respects help to close that gap with the more common cancers. Will the Minister address the point that was made earlier and the point that the all-party group has been pushing hard on for some time?
The Minister appreciates that we hon. Members in the all-party group have had a constructive dialogue, which continues, but this debate is too good an opportunity to miss, so I should like to raise some relevant issues in a more public forum. The all-party group has tended to focus on proxy measures. When we had primary care trusts, the one and five-year figures were statistically robust, because the population sizes allowed them to be so. However, we have started tinkering with the commissioning structure—first, general practitioners and fundholders and then clinical commissioning groups—and the population sizes are somewhat smaller. Therefore one and five-year figures, on their own, are not as statistically robust as we should like. That is why we in the all-party group suggested that staging and emergency admissions could be used as proxy measures to complement, rather than replace, the one and five-year figures, for the benefit of the local NHS.
Hon. Members should not forget that this is all about trying to introduce measures that allow the local NHS to focus on outcomes and introduce, through its own initiative, initiatives such as screening, which was mentioned earlier—there are many others—to try to drive forward earlier diagnosis.
In respect of proxy measures, I understand that the public health outcomes framework, published at the beginning of the year, has already identified the importance of staging data. Certainly, that is so with regard to cancers diagnosed at stages one and two. I am not alone in the all-party group in thinking that it is important that those data are shared across the outcomes framework to ensure a coherent approach throughout the NHS. I am interested in what the Minister says about that. Once again, I accept that we have to be reasonable. This is about quality of data. I hope that the Minister accepts that coherence is needed in respect of the frameworks for public health outcomes, NHS outcomes or commissioning outcomes.
If the big picture of what the NHS should focus on in respect of cancer is coherent—whether top-down or bottom-up—we stand a greater chance of achieving our goals. At the moment, there is a risk that we do not have such coherence. I know that the process is at an early stage, but I am interested in hearing the Minister’s response.
Picking up a point that was raised earlier, all hon. Members accept that improving patient experience is important, which is why the all-party group thinks that we need to do more to push on an open door. We recommended that the national cancer patient experience survey should be conducted annually. Although there is a question about feasibility, there is much merit in that suggestion. The survey should also be included in domain 4 of the NHS outcomes framework and the COF, just to ensure that the message, which is that we regard it as important, is clear. Patients can have the best treatment in the world, but unless their experience is good, particularly at a traumatic time when they have cancer, negative experiences can often act as a dampener and can affect recovery rates as well. It is important to recognise that.
I thank my hon. Friend the Member for Southport for securing the debate. The Minister knows that the all-party group is keen on a constructive dialogue—it is ongoing—and I thank him for the meetings that we have had and for the constructive way that he has liaised with us. I apologise to him for making an early exit, because I have to attend a meeting of the Select Committee on Foreign Affairs. However, he should not think that I am not interested in his response: I shall scan Hansard carefully tomorrow morning.
Jim Shannon (Strangford) (DUP)
I congratulate the hon. Member for Southport (John Pugh) on bringing this matter to Westminster Hall.
There is not one of us who has not personally been affected, or who does not have family members affected, by what is referred to as the dreaded big “C”. Last year, my sister, who lives in England, had kidney cancer. The medical services here were good in addressing that and she is on the way to recovery. My father had cancer on three occasions and, due to the skill of the surgeons, his faith and the prayers of God’s people, he got over those cancers and is still here coming up to 83 years old—or young, perhaps, which is another way of looking at it. Our health care system is good at what it does. I want to make that clear.
We have the best palliative care in the whole of Europe. That matter has been debated previously in the House. However, that does not always mean that we have the best cancer treatment in every category and sector. We must look at that.
The hon. Member for Southport spoke about pancreatic cancer. Recently, I met representatives from Pancreatic Cancer UK, who gave me some shocking figures, which are available to all hon. Members. Survival rates for pancreatic cancer have not improved for more than 40 years, making it the most deadly of all cancers diagnosed in the UK, with fewer than 3% of patients surviving beyond five years. Some 8,000 people are diagnosed with pancreatic cancer every year and it is responsible for 5% of deaths from cancer, yet it receives only 1% of research funding. There was a debate on pancreatic cancer in Westminster Hall a month or two ago. It is often regarded as a death sentence—if people get it, their chances are minimal. Perhaps the Minister can tell us what has been done to address that matter in particular.
John Pugh
I am glad the hon. Gentleman mentioned that, because two close friends of mine died rapidly of pancreatic cancer. One point made by the people in Liverpool to whom I spoke was that, given the almost invariably fatal outcome from this cancer, it would not be a bad idea if some of the rules regarding drugs approval were relaxed a little bit, so that people could find out what worked, because in this case there is very little to lose.
Jim Shannon
I thank the hon. Gentleman for that valuable contribution and agree wholeheartedly. If it comes to the stage where people’s life expectancy is minimal or reduced, I believe that they would be quite happy to take advantage of new drugs, if those were available.
All hon. Members know that finances are finite in the health budget. That being so, we are grateful for the many charities that do such magnificent work, including Cancer Research UK, Macmillan Cancer Support and Marie Curie Cancer Care. However, we must get a handle on our treatment process and outcomes, which can only come through the correct use of funding. I hope that the Minister will tell us how that will happen.
In the NHS document, “Improving outcomes: a strategy for cancer”, published in January 2011, it is clear what the Minister regarded as the way forward:
“In order to achieve these principles we must also ensure that every possible penny of money the NHS has is spent improving the quality of care and outcomes that patients experience. The Government protected the NHS in the Spending Review settlement, with cash funding growth of £10.6 billion (over 10%) by 2014/15. Compared to many other government departments, that puts us in an incredibly privileged position but this is the toughest settlement the NHS has faced in a long time.
At the same time, we need to respond to the longer term pressures the NHS faces; of an ageing population and the new demands created by new treatments and technologies. That means that, as set out in the Spending Review and the 2011/12 Operating Framework, over the next four years the NHS will need to achieve up to £20 billion of efficiency savings. These savings will be reinvested back in continuing to give patients the care that they need.”
Will the Minister say whether we are on target to make those savings? If so, when will that money go back into the system?
The document contains many examples of cost-efficient care, such as people having certain treatments as day procedures and then care at home, which makes a lot of people feel more secure as well as being cost effective. We understand the reasons and the thinking behind that: it is essential that the patient is at the heart of any decision made and any strategy must incorporate this.
I am not an argumentative person—far from it, I try to get on with most people in this world—but the hon. Member for Southport commented on the advertising campaign “Have you had a cough for three weeks or more?” We do not know how successful it was. The campaign has a role to play, and those who have had a cough for more than three weeks might well have a problem. We do not know how many people went to see their doctor and, as a result, have been made aware of problems. That is perhaps a different opinion from that expressed by the hon. Gentleman.
Jim Shannon
The facts will be the number of those who take up the campaign and see their doctors, perhaps ending up with the diagnosis of a problem.
I have read different consultation responses and have seen how different cancer organisations respond. All have been positive that, to improve patient experience outcomes, it will be important for patient experience to be measured and bettered throughout the entire patient pathway. Bowel Cancer UK points out that it is important that patient conditions are not ignored by an overarching patient experience indicator. For example, the overall patient experience reported by patients at a particular provider is likely to be less relevant than the specific experience reported by patients with the same condition. Thus, bowel cancer patients should be consulted about their treatment and given the necessary support and tools to make informed decisions about their care.
I will quickly outline seven suggestions that might lead to improvements in patient experience and care. Steps need to be taken to ensure continuity of care throughout the patient pathway. Key workers and clinical nurse specialists should play a central co-ordination role to achieve that—their involvement is critical. The meaningful data on service performance should be provided, to allow commissioners to make informed choices on the services that they commission and to inform patients about the services that they might wish to access.
Sometimes it is about knowledge and patients’ understanding of how the system can work to their advantage. Tailored patient information should be provided to guide patients through their care, in the form of information prescriptions; that should also include support to self-care, because that is sometimes the best way to deal with their problems and medical condition.
Symptom management should be offered to ensure that patients have the knowledge and tools to look after themselves when they can, but also so that they know when they need specialist support. In other words, when they need to call on the specialist support, they should have the chance to do that.
Patients should be given access to treatments in the most appropriate location for them, whether surgery, radiotherapy or chemotherapy—again, knowing the full choice.
Patients should be offered signposting and support to help them return to work, as well as ongoing support to manage continuing symptoms and the side effects of treatment. We might not always see such things directly, but they are important: trauma, the effect on the patient and their families, the financial implications and knowing about rights to benefits to get through that period, such as an application for disability living allowance.
Palliative care pathways should be considered alongside active treatment and not simply at the end of life. For many of us, palliative care is end-of-life care, but it has another role as well.
Lastly, the end-of-life care strategy should be rapidly implemented. Those seven suggestions are a method for the health system to address the care needed for those who have cancer.
I shall make a quick plug for those who do the experimentation and whose task is to find new drugs, which the hon. Member for Southport mentioned in relation to pancreatic cancer care. Queen’s university Belfast is at the forefront of experimentation in the investigation of new drugs—renowned the world over—and I commend the people there for what they do, and what many others do, because we cannot do without that experimentation to find the new drugs. Nearly every other month a new drug is announced—okay, there might yet be three or four years of experimentation and investigation, but the work of the researchers is tremendous and I commend them for it.
All the responses have been noted and the document that the Minister released is precise, yet more than a year later some feel that we have not moved forward as much as we should have done. Are we achieving better patient-focused care and outcomes? I am not so sure about whether that has been achieved, but the Minister will indicate where we are. That is why I am particularly thankful for the opportunity to debate the issue here in Westminster Hall. We do not need pretty words in a document—if I may use that terminology, and not facetiously—we need action. The Minister must turn all the words into action, and that is why I support the hon. Member for Southport and thank him for bringing the matter before the Chamber today.
Liz Kendall (Leicester West) (Lab)
I thank all hon. Members who have taken part in this important debate. I congratulate the hon. Member for Southport (John Pugh), hard-working as always, on focusing on the issue.
Several hon. Members talked about the context of the debate and the improvements made over recent years. Several mentioned the research—published, I think, in the British Journal of Cancer—that showed that, over the past 20 or so years, the NHS in England and Wales has achieved the biggest drop in overall cancer deaths among 10 leading countries worldwide. There have also been significant improvements with individual cancers. For example, death rates for breast cancer have fallen by 40% since 1989, virtually closing the gap with other countries such as France. Furthermore, the NHS has done so despite having a smaller budget, which led the British Journal of Cancer to conclude that the NHS had achieved more with proportionately less than in other major developed countries.
It is clear, however, that far more can and must be done to bring cancer outcomes for all cancers and all patients up to the very best standards achieved in other countries. Hon. Members have rightly said that our overall survival rates are still not as good as those in countries such as Canada, Australia, Sweden and Norway and that, although survival rates are good for breast and skin cancer, for example, they are low for lung and pancreatic cancer. I am also particularly concerned about differences in outcomes for people from different minority ethnic groups or from different social and economic backgrounds. As the shadow Minister with responsibility for older people, I am concerned about the worse outcomes for older people in the UK compared with those in other countries, even after we have taken social and economic factors into account—I shall say a bit more about that in a moment.
Hon. Members welcomed the focus in the NHS outcomes framework on one and five-year survival rates but rightly questioned why the three cancers mentioned account for 40% of new cancer diagnoses and asked about the other cancers that could be included. Although survival rates are absolutely vital, other issues need to be addressed to improve the patient experience and the quality of care—in particular, for those who will not survive cancer, at the end of life.
[Mr Edward Leigh in the Chair]
I want to focus my comments on three key areas of care in which we need to improve services: first, early diagnosis and intervention; secondly, tackling treatment variations; and thirdly, ensuring that the patient experience is at the heart of all aspects of cancer care. There is a very important issue about how we prevent cancer from happening in the first place, but I will not focus on that in this debate.
The hon. Member for Basildon and Billericay (Mr Baron) —I pay tribute to the all-party parliamentary group—hit the nail on the head when he said that the survival rates at one year are crucial, and the differences between our survival rates and those in other countries are largest around that first year. We have to ensure either that patients present to their doctors earlier or that we identify them through effective screening. We then have to ensure that GPs properly examine, diagnose and quickly refer patients to appropriate specialist and other services.
International comparisons generally indicate that England has high-quality cancer screening programmes, although there is considerable regional variation in uptake. The key to improving uptake of screening programmes and ensuring that patients present early is to improve public awareness. I am worried about who will be responsible for promoting public awareness of cancer and running cancer awareness campaigns.
In April 2013, local authorities will take over responsibility for public health. The main focus will be on strategic needs assessment for their local population and developing joint strategic health and well-being strategies, but they will also be responsible for commissioning specific public health services, and they will be free to set their own priorities.
Mr Baron
The hon. Lady is absolutely right in saying that cancer survival rates have been improving for 30 to 40 years, but we still lag behind the European average, although I accept that we must be careful when comparing statistics. Will she confirm that, although we heard a lot about the Opposition’s concerns about changes to the commissioning structures, we did not hear much about the other key element of the NHS reforms: the importance of focusing on outcomes, particularly in cancer, as a way to drive forward earlier diagnosis? The spotlight should be on the local NHS and areas with poor outcomes, which should introduce initiatives to drive forward earlier diagnosis, including awareness of cancer screening programmes and so on, but we did not hear a lot about that from Opposition Members.
Liz Kendall
I thank the hon. Gentleman for his intervention. He was lucky enough not to experience the 16 weeks of the two Public Bill Committees that considered the Health and Social Care Bill, when I regularly raised the key concerns, such as how to improve outcomes for cancer and heart disease and how services, not structures, needed to be reformed to do that. If he has a spare moment and reads the report of those debates, I am sure that he would become aware that I was very concerned about how to improve patients’ lives, their experience and the quality of care, which is always the issue for me. My concern was always about whether the reforms would do that.
I return to the point that I was making about local authorities’ role and the concern that, under the mandated public health services that local authorities will have to commission, public awareness campaigns, including those for cancer, are not included. There is a real worry among public health professionals and those working for and with cancer patients about whether public health awareness campaigns, such as the bowel cancer awareness campaign, which certainly attracted my attention, will continue.
A second issue is how to improve GPs’ skills and their awareness of cancer. Many GPs see cancer patients relatively infrequently, particularly those with rare cancers. Will the Minister explain what national or local action may be taken to ensure that skills and awareness improve?
We want to ensure that, when people are referred by a GP, they have swift access to diagnostic tests. That is about not just good outcomes, but the quality of their experience. Anyone who has had the misfortune of themselves or a family member waiting for cancer diagnostic tests knows that it is a frightening experience and that it should be done as quickly as possible. There were big improvements under the previous Government in speeding up diagnostic tests, but there is evidence that the service is going backwards. Some 78% more patients now wait more than six weeks for diagnostic tests compared with May 2010, and there are even bigger increases in the number waiting for vital tests to diagnose cancer. Some 230% more patients now wait more than six weeks for endoscopic diagnostic tests, and that includes a 242% increase in the number waiting more than six weeks for colonoscopy and a 140% increase in the number waiting more than six weeks for MRI scans. What action could and should be taken to reduce those diagnostic waits, which is vital to improve one-year survival rates?
Turning to the important issue of treatment variation, I want to put on the record the excellent briefing from the King’s Fund, “How to improve cancer survival”, which goes through the issues in detail, with the best clinical evidence and the implications for services on the ground. Treatment factors can be divided into four main groups: surgery, radiotherapy, cancer drugs and the overall co-ordination of care. On surgery, there is a lot of evidence that the outcomes for many types of cancer might be better in centralised, specialist centres, particularly for complex surgery, because their use can lead to better training for surgeons. If they have a higher case load, doctors develop greater expertise and experience. More specialist support is available, such as nursing and intensive care, as well as superior equipment. One concern that we raised when discussing the Health and Social Care Bill and reorganisation was who will lead the strategic configuration that is needed to centralise some services, such as cancer, into specialist centres.
Radiotherapy has a significant although modest overall impact on five-year mortality rates. Obviously, the optimum proportion of patients with cancer who should receive radiotherapy varies by tumour type and stage, but it is thought that overall around 50% of patients with cancer would benefit from radiotherapy. However, in 2005, the radiotherapy access rate in England was 38%. That was one reason why the former Government introduced a new strategy, “Radiotherapy: developing a world class service for England”, in 2007. Can the Minister update me on any progress on that?
I am sure that the Minister will talk about the cancer drugs fund and the Government’s aim of improving access to such drugs. He will know that concern remains that the fund has not removed variations from the system. There have been underspends in some parts of the country, and some regional cancer drug funds approve drugs that others do not. The King’s Fund raises a bigger question in its document. It says that it is more important to improve access to surgery and radiotherapy overall. It is worried that there has been almost too much attention on the cancer drugs fund and not enough on the variations in radiotherapy and surgery.
I am really concerned about older people and the variation in their care. Will the Minister say whether the Government will look into that specifically? Older people are under-treated, and their outcomes for cancer are worse as a result, even when account is taken of the different types of tumour and the presence of other diseases or co-morbidity. Older people are less likely to receive intensive treatment and more likely to be admitted as an emergency.
Crucially, major international studies show that differences in survival rates between the UK and other countries are greater for older people. We are not sure of the reasons for that based on the evidence, but the King’s Fund suggests that there may be three key issues: even later presentation; co-morbidity with older people having two, three or more other long-term chronic conditions, which may lead to cancer then being misdiagnosed or not diagnosed; and age discrimination and the feeling that, because someone is getting older, their health is perhaps not so important. I am pleased that the Minister will implement the ban on age discrimination in public services that the former Labour Government introduced. I am very keen that the Government look more into that issue as part of their work on cancer.
I wish to say something about co-ordination of care, which, as we know, is important for patients and the patient experience. During debates on the Health and Social Care Bill, we asked whether cancer networks would continue in the NHS and, if so, how they would be funded. In May last year, the Secretary of State for Health said that the Government would fund and support cancer networks in 2012 and that, after that, the NHS Commissioning Board would continue to support and strengthen them. Over a year later, however, the future of cancer networks is still unclear.
The NHS Commissioning Board has recently published early proposals for clinical networks, which include the new strategic clinical networks prescribed by the NHS Commissioning Board. The proposals also mention 14 to 15 overarching networks in England that will cover a specific geographical area and review the work of the prescribed strategic clinical networks every six months. I think, however, that people are still quite confused about how that will work, and the Government’s proposals do not refer specifically to the 28 cancer networks. I therefore ask the Minister whether all 28 current cancer networks will become prescribed strategic clinical networks, or will their number be reduced? How will they fit into the umbrella networks?
Funding is crucial. In response to a parliamentary question on 21 May this year, the Minister stated that strategic health authorities will be given £18.5 million to fund cancer networks in 2012-13, just as in the previous two years. Page 6 of the recent document from the Department of Health, “Progress Update on the Design of the NHSCB” states:
“Around £10 million of the costs of supporting Networks and Senates are expected to count against running costs.”
That seems to imply that the £10 million is to run not only cancer networks but all clinical networks and senates and that would be a cut of £8.5 million to the cancer networks. Will the Minister say whether the £10 million referred to in the document about the future functioning of the NHS Commissioning Board covers all networks, or cancer networks alone? That is a real concern for people who work in cancer networks and are already worried about the future.
I will conclude by mentioning the patient experience. Several hon. Members have rightly mentioned the need for the patient’s experience of a service to be placed at the heart of what the NHS is trying to achieve. I agree with the call from Macmillan Cancer Support and Breakthrough Breast Cancer for the NHS cancer patient experience survey to be included as part of the fourth domain of the NHS outcomes framework, which is about ensuring that people have a positive experience of care.
The cancer patient experience survey shows that the NHS does well on issues such as waiting times, pain control and patients who feel that they have been treated with dignity and respect. It does not, however, do as well as it could on issues such as patients receiving written information about their condition, financial help, clinicians who work well in a hospital and the community and whether there is enough nurse support. Those are important matters for patients.
Mr Virendra Sharma
Does my hon. Friend agree with expectations that the system will work more closely in partnership with the third sector, so that when patients come into the community they get support from that as well? We need a partnership that works together to improve the condition of patients once they are released from hospital.
Liz Kendall
I absolutely agree. Last year, I visited the oncology and radiotherapy wards at Leicester royal infirmary, and I saw the work done by Macmillan Cancer Support to help patients with cancer and their families. It had a multi-disciplinary team that worked around the needs of the individual patient and their family and involved not only doctors, nurses and radiographers in the hospital, but GPs, physiotherapists, occupational therapists, dieticians and pharmacists in the community. Macmillan Cancer Support does excellent work to improve the information and advice that is given to patients and their families, and it deals sensitively with issues such as when patients might want information, how it is provided and what is wanted by different family members. I am very supportive of that.
Mr Edward Leigh (in the Chair)
Order. I know that the hon. Lady will wish to leave time for the Minister to reply. The debate must finish at 12.30 pm.
Liz Kendall
I am about to sit down, Mr Leigh. The Minister will know that the Opposition have put forward proposals for social care to be free at the end of life, to avoid the awful situation in which families have to fill out means-test forms and might struggle to get the care package that they need at that crucial time—the end of their loved one’s life. There is evidence that such a proposal would be cost-neutral, as it would reduce the number of more expensive bed days spent in hospital. Survival rates are absolutely critical, but we must not forget other issues, such as the quality of the patient experience and end-of-life care.
The Minister of State, Department of Health (Paul Burstow)
I congratulate my hon. Friend the Member for Southport (John Pugh) on securing the debate and on setting out—as he always does so admirably—the terrain that he wished us to traverse. Other hon. Members have done just that, and it is helpful to have this opportunity to mention the progress that has been made since the publication of the Government’s cancer outcome strategy in 2011. The annual report that we published last December set out that strategy in greater detail than I fear I will be able to provide in the time available today, and I commend it to Members.
Interestingly, one common theme in this debate has been touched on, quite rightly, by most of those who have contributed. Health inequality has been raised in the context of patient experience surveys—with which the Government will continue—and of age. The Government take health inequality so seriously that we have placed for the first time clear duties on commissioners and other parts of the NHS to act to reduce it, and we will say more about that soon when we publish the draft mandate for the NHS Commissioning Board.
The hon. Member for Leicester West (Liz Kendall) referred to age and the differences in outcomes from cancer services for older people. I approved funding for a joint piece of work by Macmillan Cancer Support and Age UK to explore some of the obstacles and barriers that may prevent people from taking up cancer treatment or accessing it in the first place. We recently visited Barts Health NHS trust, which is taking part in that pilot programme, and we are looking at issues such as comorbidity and services in the community. We will report accordingly and take action to ensure that lessons are learned. The hon. Lady was right to raise the issue, and the Government have decided to implement provisions on age with regard to goods and services in the NHS and social services. On taking office, one of my first responsibilities was to take the necessary decisions to ensure that no part of the NHS would be exempt from those provisions, and key decisions needed to be taken to make it clear that age can be used only on an objective basis in health care and social care decision making.
I will say something about the NHS outcomes framework, and then respond to as many of the points that have been raised as I can in the time remaining. Recognising that many people have more than one medical condition, we have deliberately taken a generic approach to the NHS outcomes framework, rather than focusing on specific diseases. We recognise, however, that cancer is a big killer, and we have said repeatedly that improving health outcomes for cancer patients is a priority for the Government. We have aimed to reflect that in the framework by including seven specific indicators on cancer. Those include the under-75 mortality rate from cancer, and the one and five-year survival rates for the three major cancers, to which other hon. Members have referred: colorectal, breast, and lung. In addition, two overarching indicators include data on cancer: potential years of life lost from causes considered amenable to health care; and life expectancy at 75.
The indicator “under 75 mortality rate from cancer” is shared with the public health outcomes framework. By having that shared indicator, with joint accountability for delivery, Public Health England and the NHS Commissioning Board will have the incentive to work together to improve cancer mortality and survival. That relates to the question about the commissioning of public awareness campaigns. I can confirm to the hon. Member for Leicester West that Public Health England and the NHS Commissioning Board will have a joint responsibility, and a clear obligation, to commission in that regard.
John Pugh
On the point about indicators, a clear theme throughout the debate has been late diagnosis. Late diagnosis is not the same as late treatment. With GPs probably under more pressure than ever before not to make unnecessary referrals to secondary health settings of one kind or another, do the Government keep or have they any intention of keeping statistics on whether, where people are diagnosed late, the cause of the late diagnosis was that they presented far too late or that the GP and whoever they saw figured out what was wrong with them far too late?
Paul Burstow
I am coming to that. It relates to the point raised by my hon. Friend the Member for Basildon and Billericay (Mr Baron), who chairs the all-party group, about staging data. I will say more about that in a minute.
Outcomes for cancer patients and survivors will also be covered by other areas of the NHS outcomes framework. For example, we will measure patients’ experience of the NHS by looking at different patient surveys. We have been talking about that in this debate.
In addition to the indicators in the outcomes frameworks, the cancer outcomes strategy sets out a commitment to improve cancer survival rates generally and—we have heard the figure—to save an additional 5,000 lives a year by 2014-15. The strategy is supported by more than £750 million of investment for implementation during this spending review period.
Our aspiration is to have cancer survival rates as good as the best in Europe, but we have to stage progress to that goal. Our ambition during this spending review period is to halve the gap between England’s survival rates and those of the best in Europe. The estimate, based on the latest figures available, is that that would save an extra 5,000 lives. To deliver on that ambition, we must tackle survival rates for all cancers. To realise our goal, we are taking action to achieve earlier diagnosis of cancer, to extend existing screening programmes for breast and bowel cancer and to improve access to radiotherapy.
Let me deal specifically with early diagnosis. My hon. Friend the Member for Southport referred to the recent lung cancer awareness campaign—the “coughing” campaign as I think he described it. Obviously that campaign has not just dropped out of thin air into the broadcasts of our media around the country. It is the product of a detailed process of testing, trialling and evaluation. Indeed, the original idea came from a local campaign in Doncaster. Then there was a series of regional pilots to see how it would affect behaviour and what benefits would arise from that. I will be more than happy to send my hon. Friend the details of that and, as we evaluate the national programme, how that is going as well.
Early diagnosis is central to our strategy. It is one of the areas to which our international benchmarking has pointed us. By diagnosing cancer earlier, we will improve patients’ chances of being successfully treated, as other hon. Members have said. Through the national awareness and early diagnosis initiative, we have worked with the NHS and other stakeholders to run a number of campaigns to raise awareness. That is about getting people to talk about things that they would not necessarily normally want to discuss—getting them to overcome embarrassment, because embarrassment never killed anyone, but not turning up at the GP’s and asking key questions about particular cancers certainly does.
The hon. Member for Leicester West asked about support for GPs. A range of support is available to help GPs assess when it is appropriate to refer patients for investigation of suspected cancer. Obviously, there are the National Institute for Health and Clinical Excellence referral guidelines. However, we need to do more and we are investing in better GP access to diagnostic tests. I will say a little more about that in a moment. The national cancer action team, Cancer Research UK and Macmillan Cancer Support are working together to develop a broader GP support programme for the coming years. That includes working with the Royal College of General Practitioners.
The hon. Member for Strangford (Jim Shannon) raised the issue of pancreatic cancer. We are working closely with Pancreatic Cancer UK. In fact, we will be working through many of the issues of early diagnosis in a workshop specifically on pancreatic cancer next week. I will be speaking at that event.
We know from the latest diagnostic waiting times and activity figures that despite increasing demand, the proportion of people waiting more than six weeks for an endoscopy has decreased during 2011-12. I hope that hon. Members will join me in congratulating the NHS on the way in which it went about preparing for and dealing with the increased work load that arose from the bowel cancer symptoms awareness campaign that ran between January and March this year.
The Department is working with partners to support the NHS to improve the management of diagnostic demand. There are a couple of things that we are doing in particular. We are promoting the uptake and spread of efficient and productive service models. Some places have no problem in utilising the capacity that they have. Other trusts have struggled, and we are using NHS Improvement to target the trusts where the highest waits have occurred. We are also providing a variety of tools and information to support commissioners. Data are a key component in driving improvements, and we have a new data set for diagnostics, which is providing a wealth of new information.
In our cancer outcomes strategy, we said that access to appropriate treatment, delivered to a high standard, was critical to improving outcomes. That is why we have made available £150 million more over the spending review period. In April 2012, we confirmed plans to develop proton beam therapy services in Manchester and London by the end of 2017. Those services will have the capacity to treat up to 1,500 people a year. Much has been achieved with regard to access to radiotherapy in recent years. Radiotherapy waiting times are now within the 31-day operational standard for both first definitive and subsequent radiotherapy. Modelling shows that that improvement saves 2,500 lives annually in comparison with waiting times in 2007. Data are playing their part, and there are other issues around that.
I want to touch on investment. In answer to a question last week, I said that the first and foremost responsibility for maintaining equipment and identifying when it needs to be replaced does, of course, sit with the provider that uses that equipment. However, in March 2012, we announced the establishment of a £300 million fund, to be operated by NHS Supply Chain, to bulk-purchase medical equipment to achieve better prices for the NHS and to encourage trusts to keep their equipment up to date. It is therefore a combination of responsibilities, but we certainly see the foremost responsibility sitting clearly with providers in that regard.
About 1.8 million people living in England have had a diagnosis of cancer, and the number is growing. We know that we can do more to improve their quality of life, which is why we have been working in partnership with Macmillan Cancer Support on the national cancer survivorship initiative. The use of patient surveys has been a key aspect of that. We will publish a full analysis of the detailed work that we have undertaken jointly this autumn.
We have committed to the next cancer patient experience survey in 2012. We find those data invaluable. The shock to the system when a provider finds itself at the bottom of the tables is very powerful indeed and is leading to significant improvements.
The hon. Member for Ealing, Southall (Mr Sharma) talked about the limited scope of existing indicators. I can tell him and other hon. Members that we are considering how we can make progress on bringing a number of indicators together. My officials are working with the information centre to consider the resource implications of substituting existing indicators and whether it would be appropriate for a composite indicator to replace some of the individual survival rate indicators. Ensuring that we cover more cancers was a concern that several hon. Members raised in the debate.
On funding cancer networks, my right hon. Friend the Secretary of State has made the position clear. We have provided funding for the remaining year for which the Department is responsible. Indicative figures have been set out. A review is going on of clinical networks and how they are governed. That will ultimately determine precisely how much resource is allocated. There is no final figure at this stage.
Regretfully, I shall conclude now, as I am about to run out of time. There is much going on in respect of cancer. I will write to the hon. Members who took part in the debate so that they can see what I would have said if I had more time. However, the cancer outcomes strategy remains the guiding light for the Government to deliver the world-class cancer care that people deserve in this country.
Crisis Loan Funding
(12 years ago)
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Dr Eilidh Whiteford (Banff and Buchan) (SNP)
I am pleased to have the opportunity to debate crisis loans and the changes to the social fund ushered in in the Welfare Reform Act 2012. My primary purpose in requesting today’s debate was not to rehearse arguments we have already had on the substance of those changes, although a number of issues remain unresolved and undoubtedly inform today’s debate, but to seek clarity from the Government about the implementation of the new system and assurances about the funding allocations accompanying the policy changes.
Although social fund crisis loans and community care grants will disappear from April next year, the need for emergency and one-off support for people on low incomes will not. We know that funding will be made available to local authorities in England and the devolved Administrations in Scotland and Wales to provide discretionary social assistance, but we do not yet know how that will work in practice or how local authorities and devolved administrations are expected to deal with the shortfalls. Questions raised throughout the process on the merits of ring-fencing the social fund allocations remain acute. We need to know what guidance the Government will issue to support implementation and whether resources will be allocated to establish a replacement system.
In terms of contextualising our discussion this afternoon, it is worth drawing attention to the important role that social fund crisis loans and community care grants play in our welfare system. They act as a safety net for people on low incomes who face unexpected or unplanned costs and help people to acquire essential furniture or equipment if they are setting up home in very straitened circumstances.
As the debate about crisis loans progressed last year, the Government repeatedly relied on the argument that the cost of crisis loans was spiralling and needed to be brought under control. Back in March last year, I suggested to the Secretary of State for Work and Pensions that the rise in the uptake of such loans was largely attributable to the recession. Given the ongoing economic turbulence, financial insecurity and high unemployment of the past few years, that might seem to most of us to be a no-brainer, but the Secretary of State insisted that the cost of crisis loans was rising prior to the recession.
I am glad to have the opportunity this afternoon to scrutinise that claim in more depth. It is clear that there is a link between the rise in demand for crisis loans and the onset of the financial crisis. We should be honest enough to face up to that. Members who have followed the issue will be aware that the Department for Work and Pensions annual reports on the social fund have been published from 2006-07 onwards only. If we use 2006 as our pre-recession baseline, as the Government appear to have done, there is clearly a dramatic year-on-year increase in both the number of claimants and the amount spent on crisis loans as the recession began to bite.
Mr Andrew Smith (Oxford East) (Lab)
I congratulate the hon. Lady on securing this debate on a very important subject. Underlining the point she makes, does not the DWP’s own research, “Local Support to Replace Community Care Grants and Crisis Loans for Living Expenses in England”, show that there is indeed a close correspondence between flows on to jobseeker’s allowance and the number of crisis loan applications?
Dr Whiteford
The right hon. Gentleman makes a salient point, which backs up the point I am making.
I want to look back a little further, using information that had to be obtained from the Government under a freedom of information request by a non-profit company called Full Fact. Looking at that, we can see that, in reality, prior to 2006-07 and the start of the banking crisis, the amount spent on crisis loans was remarkably stable between 2000 and 2005-06. During that period, the gross amount spent on crisis loans did not fluctuate—up or down—by more than 5%, and spending dropped in 2003-04 and the following year. Although overall there was a slight upward trend prior to 2007, it would be misleading to compare that with the dramatic increase in applications and expenditure once people started to experience hardship, as work dried up and costs for basic foods and heating started to rise. I am concerned that we are still in that position and that we can expect demand to continue to rise for as long as the economic turmoil continues.
I am struck by briefings from Citizens Advice Scotland and others that outline the wide range of circumstances in which people try to access the social fund. Those seeking crisis loans and community care grants include people moving into independent living and those who need basic furniture to set up home after a family breakdown or a period of homelessness. They also include people with employment problems, those with complex benefits claims, who are caught in the quagmire of the system with no immediate source of money for food or heating until their claim is resolved, and those who incur unexpected travel costs due to the illness or hospitalisation of a close relative.
Those eligible for crisis loans face a wide range of circumstances, but what they all have in common are cash flow problems, compounded by an underlying low income. That is a temporary state of affairs for some, but some others, such as those who are disabled or have long-term health problems, have little financial resilience to deal with unexpected costs. They have limited means to absorb financial shocks, such as the cooker or fridge breaking down or the aftermath of exceptional events such as burst pipes or a break-in. Burst pipe problems came home to me in the past couple of very severe winters. People living in homes that are not well heated are often those who would particularly struggle if faced with having to redecorate or get a new carpet. Such events are not only a burden on those on very low incomes, but on anybody living on a modest income who has to count the pennies.
Hywel Williams (Arfon) (PC)
Does the hon. Lady share my despair at the report in The Guardian today and the series of reports that will come out this week? About 3.5 million families are one step away from disaster. They have no resources, no savings and are potential claimants of the social fund. The potential is enormous.
Dr Whiteford
The hon. Gentleman’s point is well made. There are connections to be made across a wide range of policy agendas. His point is particularly important because it acknowledges that the prolonged economic stagnation we are experiencing has eroded the savings and assets of many, not only the unemployed or disabled. For the very poorest however, things have become a lot more precarious. I am sure that many MPs here today will have cases in their constituencies and can think of people who have been living an insecure, hand-to-mouth existence for some time, because work is so hard to find in the current circumstances.
The situation with crisis loans presents us with risks and challenges. Welfare organisations have expressed marked concerns about what will happen in practice when the social fund disappears. Their chief concerns relate to ring-fencing and whether set eligibility criteria and binding policy guidance will be attached to the funding allocations. They fear that without ring-fencing and clear guidance, big disparities could emerge in different parts of the UK and that, at a time of substantial cuts in the public sector, it will be all too easy for allocated funding to be absorbed into more general social work budgets or used to plug funding shortfalls elsewhere.
Those are legitimate, serious concerns. I hope that the Government will take the opportunity today to offer reassurance that they will put in place robust measures to ensure that there is good provision across the country and to prevent wide divergences emerging.
Dr William McCrea (South Antrim) (DUP)
I congratulate the hon. Lady on securing the debate. Does she agree that without appropriate crisis loans many of our constituents in crisis will be left hostage to high-cost and illegal lending, which will lead them into greater disaster?
Dr Whiteford
The hon. Gentleman makes a critical point and, incidentally, the Secretary of State has acknowledged that that is a risk.
The welfare system is different in Northern Ireland, where it is more fully devolved to the Assembly. I am conscious that a lot of my remarks today are not so pointedly directed there, but the general principle very much pertains. In Northern Ireland and Scotland, the risk of payday loans is real and causes untold misery in communities. MPs are presented with those stories, but are in many cases helpless. Once people are caught in a spiral of uncontrollable debt, it is difficult to get them out and reschedule those debts, particularly if they already have limited means. That is an issue for another day, but it is an important point that I hope I can come back to before I conclude my remarks.
I have some concerns about the way the changes will work in practice. We are less than 10 months from a substantial change to the welfare system, and it is not yet clear what resources will be available to the devolved Administrations and local authorities to help with set-up costs and administration associated with implementation, and whether those resources will be enough. I hope that the Minister will provide clarity about that this afternoon, and set out in more detail how the Government intend to proceed, and on what time scale. Given the substantial administration costs of the current arrangements, we must accept that there will be significant cost in setting up a new system. Local authorities and devolved Administrations need to be properly resourced to do that. I hope that a ministerial commitment will be set out today, with an explanation of what is being done and how far towards implementation the plans are.
A crucial underlying issue that cannot be ignored is the fact that, while demand for social fund support has risen dramatically since the start of the financial downturn, the budgets are not keeping pace with the growing need. For example, the community care grants budget has been frozen since 2005-06, so it has fallen in real terms in the past seven years. The 2012-13 community care grant budget in Scotland is 7% down on last year. I am sure that MPs, who work alongside their local authorities, will be aware of the increased strain on their budgets. I am sure I am not the only one who has met constituents who are waiting far too long for simple home adaptations or equipment that they could not otherwise afford, to enable them to live independently.
The budgetary constraints often prove to be a false economy. They put more pressure on local authority social services when they must step in with more intensive and usually more expensive interventions. The Government have made it clear that they aim to pull back crisis loan spending to its 2005-06 level, with the spend reduced from about £10 million in Scotland in 2009-10 to a projected £4.7 million in 2011-12. On the basis of the existing spend, that will create a funding gap in the region of £5 million to £10 million in Scotland alone next year. That is just one manifestation of problems that will arise in Scotland, England and Wales as the devolved Administrations and local authorities attempt to establish a fair and efficient way of distributing resources from a diminishing pot, against a background of increasing demand for support.
As the hon. Gentleman pointed out, the real losers will be people on very low incomes who turn to unscrupulous lenders and loan sharks who charge eye-watering levels of interest for modest loans. Googling the words “crisis loans” results in the search engine bringing up a range of sites offering very high-interest loans. Those are listed well before the Government website that makes it clear how to get access to Government crisis loans. In fact, crisisloans.co.uk is the website of one such high-interest lender. I am concerned that those lenders of last resort are becoming lenders of first resort. Increasingly, they are the only way people can obtain the money they need just to keep going. That often gets people into a downward spiral, and means that they get caught in debt. How on earth can someone on a limited income who is paying back four-figure interest ever hope to meet such debt servicing? Even people on modest incomes—or quite high incomes—get into trouble with credit cards and find it difficult to live within their means. We must take responsibility for the alternatives if we do not get crisis loans right.
It is not in anyone’s interest if the system is not fit for purpose, or if there are wide disparities within it between different parts of the country or local authority areas. There is pressure on us all to prevent that, and to avoid the avoidable. The people we are discussing are not, for the most part, the ones who caused the economic problems that we face, but they are being asked to carry a disproportionate share of the responsibility for them, and take a disproportionate part of the pain. I look forward to hearing how the Minister intends to tackle the funding shortfalls and the implementation budget, in particular, and, more generally, how she hopes the system can be made to work.
The Parliamentary Under-Secretary of State for Work and Pensions (Maria Miller)
I thank the hon. Member for Banff and Buchan (Dr Whiteford) for securing the debate and giving the Government the opportunity to consider some of the details she discussed. It is a pleasure to serve under your chairmanship, Mr Leigh.
The hon. Lady rightly wants clarification about aspects of implementation, and I hope I can provide that. However, it is important to remind hon. Members of some of the reasons for the importance of reform. Clearly, some financial situations are incredibly difficult to plan for, particularly if a family is already struggling to make ends meet. Various pressures can affect different communities, from the flooding of homes, as happened in the recent storms, to the loss of the main breadwinner’s job, when there is a large family. It is important that the welfare state should have the flexibility to cope with the realities of people’s everyday lives, and the needs of different communities. That is the principle on which our reform is built.
For some, crisis loans have, as the hon. Lady pointed out, made a real difference in times of financial crisis. However, I remind the House that we are retaining the alignment payments that make up the majority of crisis loan payments. In future they will be called payments on account. In relation to the costs that the hon. Lady has been discussing, which arise in situations where people need support and, perhaps, lower-cost loans—or, in the case of budgeting payments on account, zero-cost loans—those payments will continue to be available. The change on which I want to focus the House’s attention is not to those alignment payments, which are the majority of crisis loan payments at the moment; it is to personal payments, which are a minority of crisis loans. It is important for the House to understand that; otherwise the discussion will be confusing.
It is important also to understand that demand for crisis loans has tripled in the past six years. That started well before the current economic downturn. Accordingly to the analysis that we have done, that is driven by young, single people on jobseeker’s allowance, many of whom are still living in their parents’ home. That was very out of kilter with trends in other parts of the benefits system, and that is why we felt it was important to take action. It is clear that for some the discretionary social fund had become something more akin to an open credit facility, with crisis loans and community care grants funding everyday expenditure and not being used to deal with the extraordinary financial pressures that, as the hon. Lady pointed out, were the original purpose of crisis loans. That has meant that availability for others, particularly pensioners, who might benefit from some additional support to smooth financial pressures, was not really considered. Some important groups were not necessarily getting access to the support that could have been helpful to them. Our reforms are intended to simplify the currently complex situation, improve targeting, and remove the element of remoteness that has crept into the system. I shall come on to that because it is important in relation to driving the increase in demand of recent years. We want to ensure that the support is focused on its main purpose, and that it gets to people who really need it.
The hon. Lady talked about the increase in demand among those who were going on to jobseeker’s allowance. In reforming the social fund we are doing two things, as I have pointed out, the first of which is maintaining the national payments of budgeting loans and advances of benefits, which make up more than 60% of the discretionary social fund. The change is in the flexible support. We want to get support to the most vulnerable people and enable them to have support at a local level when they most need it. We will ensure that that flexible support gets through to people via the local authorities in England and the devolved Administrations in Scotland and Wales. This new local provision will replace community care grants and crisis loans for living expenses.
For total clarity, we need to ensure that we see the difference between those two budgeting streams. Budgeting loans and advances for alignment payments will continue to be there, and they currently make up the lion’s share—some 60%. The change is in that flexible support, which can be better delivered at a local level. By putting in place such changes, we can improve the support that is available to people who find themselves in difficult situations.
The hon. Lady was rightly concerned about the people who are in financial crisis and who might be seeking short-term loans. As she pointed out, some organisations charge extortionate levels of interest to individuals who have little choice over where they borrow their money. Let me reassure her that the new system will provide no-interest loans to claimants who are suffering financial hardship, especially those who are waiting for their benefit payments. Such a scheme will be developed and delivered under the new universal credit system. Let me also reassure her that since 2011, we have invested more than £5 million in a crackdown on illegal lenders, which has resulted in a number of arrests. Hopefully, she will see that we are as serious as she is about the problems that those sorts of lenders can create for very vulnerable individuals.
Ultimately, these reforms will constitute part of the Government’s wider social justice strategy which will try to deal with some of the root causes of poverty while still maintaining a safety net for the most vulnerable in society.
Local authorities are well placed to provide personalised support. We feel strongly that what has happened in recent years, particularly as a result of changes that were made under the previous Administration, that the allocation of personal funding under the crisis loans scheme has become somewhat detached from communities and that it has been difficult to judge the claims. Councils’ local knowledge, broad responsibilities and experience of benefits administration put them in an ideal position successfully to take on the role of delivering the sort of support that is currently being delivered through community care grants and crisis loans.
Dr Whiteford
Let me reiterate the question that I posed during my own remarks. Will the local authorities and devolved Administrations receive funding to help them implement and set up this new system? If so, how much and when will it come on stream?
Maria Miller
I can reassure the hon. Lady that any administrative costs will be covered outside the budget that is there for supporting vulnerable individuals. I do not have the details of what those budgets will be, but I can write to her with that information.
We are working closely with the Scottish Government as we develop options for the successor scheme. They also agree that local authorities are best placed to deliver the new provision and have agreed with local authority leaders in Scotland that they will work with councils on the replacement scheme from April 2013.
On the Budget, the hon. Lady is right to ensure that funding is available. The Department for Work and Pensions’ current annual funding allocation of £178 million for the discretionary fund will be passed in full to the devolved Administrations and the local authorities. As I have said, any administrative costs will come on top of that.
The Department is basing the division of this £178 million allocation on the amount spent in 2012-13. It is important that the hon. Lady notes that because spend on the crisis loan element of the discretionary social fund is being managed back to 2005-06 levels—the levels before the significant increase that resulted in the change of process. We will be managing this particular aspect of the funding back to those sorts of levels.
As I have said, crisis loan awards have almost tripled since 2006. There were 1 million such loans in 2005 and 2.7 million in 2010. Such an increase can be directly linked to the structural changes that were introduced by the previous Government and not to the recession.
Maria Miller
If the hon. Lady could let me finish this point it might help her understand why the changes were so large. We moved from a controlled administration of this benefit to a remote telephone application, which allowed people to push up their number of claims. Claimants were not seen and their cases were not properly known about, which made it difficult to decide whether the loans were accurate or needed. Local areas will be far better able to recognise who requires this support, what conditions they are in and what circumstances apply to them. Localising the process will be a very important part of ensuring that money is getting to people who need it the most.
Dr Whiteford
I take on board the Minister’s argument, which I have heard from the Government many times before. However, I just do not accept that this is about process. Evidence that was found through a freedom of information request showed that the spending prior to that had remained remarkably stable. It really was not fluctuating. It went up one year and down another year. I am no economist, but I cannot help thinking that it has more to do with the state of the wider economy than with the change of the telephone system. I wish the Government would be more honest in facing up to that.
Maria Miller
The hon. Lady needs to accept that if we open up the benefit gateway in such a way as to make it difficult to manage or police, it is entirely unsurprising if we see a significant increase in the level of demand. I take her back to one of my earlier comments about the nature of that increase. It is among a very distinct and particular set of people. It is not at all representative of any increase or changes in the nature of those claiming benefits in total.
In 2011, some 17,000 people received 10 or more crisis loans in a 12-month period. Crisis loans are about preventing serious risks to health or safety or about an emergency. Is it entirely possible that an individual could be in such serious risk and danger over such a prolonged period of time? The hon. Lady must agree that some urgent change is required here. As this is cash limited, any shortfall that is created would have had to be met from the budgeting loan scheme, which would have meant less money for those people who were trying to regulate their borrowing in a responsible way.
Mr Andrew Smith
In the time that remains, will the Minister address another important point that the hon. Member for Banff and Buchan (Dr Whiteford) raised about what safeguards there will be to ensure that vulnerable people who need this support actually get it from local authorities and that other local pressures do not absorb the money?
Maria Miller
The right hon. Gentleman neatly brings me on to my next point. Although there is no need for any new statutory duties on local authorities and the money will not be ring-fenced, the money will be sent out via a specific identifiable grant and it will be accompanied by a settlement letter that will set out what the funding will be used for and the underlying principles, and it will describe the outcomes that must be achieved. The funding will concentrate on providing resources for those facing the greatest difficulty in managing their income and it will enable more flexible responses at a local level. The letter will be explicit that the funding is to provide a replacement provision for community care grants and general living expense crisis loans. It will set out the sort of detail that the right hon. Gentleman and the hon. Lady are looking for to ensure that the most vulnerable people in our society get the support that they need.
Public Sector Pensions
(12 years ago)
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Richard Fuller (Bedford) (Con)
It is a great pleasure to serve under your chairmanship, Mr Leigh, for, I think, the first time, and it is a particular pleasure, if I may say so Sir, to have the Economic Secretary as the Treasury Minister responding to the debate.
We live in a time when nation after nation is being told: “You are not as rich as you thought you were.” As a result, nation after nation is facing cuts—sometimes mild, sometimes severe—in the services their Governments can provide, the real incomes that their labour can earn and the value of their assets, calculated as the debt that can be raised against their businesses and homes. We are living in such times because for more than a decade nation after nation rapidly increased the amount of its borrowings as a proportion of its economy—its national leverage. It was not just excessive Government borrowing, but an entire national pastime undertaken by millions of households, companies and banks in many nations. That beggaring of future generations is now—sometimes harshly but ultimately correctly—being brought to an end, and it is in that context that we review a future fund, including how it may help and how it might fit with current Government policies.
So, what is a future fund? A future fund is shorthand for moving the burden of paying for public sector pensions from the current tax-as-you-go model to a proceeds-from-invested-capital, or fully funded, model. It is fair to say, and I am sure that the Economic Secretary will confirm this, that Lord Hutton’s recent review of pensions ruled out a move to a future fund. Like you, Mr Leigh, I do not have any wish to be a champion for lost causes, but I hope that I am able to make some strong points about why the Treasury should reconsider Lord Hutton’s proposal to move on and not make a transition in the way in which public sector pensions are funded. This is not about public sector pension negotiations or about changing public sector pensions; it is about the process that the Government undertake to fund the pensions.
I encourage the Economic Secretary and the Treasury to reconsider a future fund for three main reasons. The first is that it promotes intergenerational fairness, and reinforces the Government’s view about long-term thinking for the security of our economy. Secondly, it offers an opportunity to rebalance the structure of earnings, to restore emphasis on pension provision—deferred income—rather than on immediate income and, thirdly, it enables the creation of a UK sovereign wealth fund, to stimulate investment in long-term projects.
I shall take each reason in turn. First, on a future fund promoting intergenerational fairness, those of us of a certain age look back on our lives and, being part of a bulge bracket of population—some of us at the latter end of it—perhaps realise that we have taken a lot for ourselves and that, as a generation, we have been somewhat greedy on the nation’s resources. That is one reason why this Government came into office at a time of such enormous debts, which future generations will need to repay. One thing that guides me as a Member of Parliament is looking for ways in which we can use fiscal probity to unburden future generations of some of those liabilities. Let us be under no illusion: it will not be easy for our children and grandchildren to compete in the future world economy. It will be tough. We have new competitors coming up all the time, so they will need every advantage, one of which is to bequeath them lower taxation rates than they otherwise would have.
Mr Angus Brendan MacNeil (Na h-Eileanan an Iar) (SNP)
Does the hon. Gentleman consider the Norwegians to have been a great example of setting up an oil fund for future generations to ensure that their oil wealth was not squandered in one generation?
Richard Fuller
The hon. Gentleman makes an extremely fair point. I was not in Parliament in the 1970s, and I am not sure whether such points were made at that time, but clearly countries that have received the beneficence of resources—Norway is one example, and Australia another—have seen the value of looking at the long-term investment of natural resources, and have set up future funds to provide for future pension liabilities. The hon. Gentleman makes an excellent point in support of my argument. Of course, we are not as endowed with natural resources as those countries are, but the fundamental point about fairness between the generations is still solid.
Let us remind ourselves that the current level of public sector debt—the debt that we all talk about and are so worried about—is £1 trillion. The public sector pensions liability, which we do not often talk about, is £1.1 trillion. All those obligations have to be paid by future generations and, as we have so significantly ramped up this first amount of debt, should we not look for ways to reduce the unfunded part of public sector pensions for future taxpayers? A future fund would, over time, eliminate that burden from taxpayers and transfer it to the returns that would be generated from a funded pension scheme.
The Intergenerational Foundation has noted some questions about public sector pensions, and also some of the risks, and this change would reduce risk. At the moment, Lord Hutton’s proposals manage risk by way of a view of a cost ceiling on total public sector pension liabilities, which is based on projections of economic growth. The projections show the liability as a steady share of gross domestic product, falling in the long term. I am not sure that history is littered with Governments who under-predict economic growth; in fact, I think that it is often the other way around, with Governments having a rather rosy view of future growth. So, inherently, as we consider the risk that will fall on future generations, there is a likelihood that the Government, under current systems, will underestimate the liability that they are passing on. As Lord Hutton said:
“What we’ve seen is how very quickly the assumptions which underpinned my assessments of the long-term sustainability of public services pensions have been shown to be too optimistic…That is going to affect the sustainability of public sector pensions in a negative way.”
The change in the pensions structure would considerably eliminate that risk.
I shall now talk a bit about the second point, which is the rebalancing of the structure of earnings, to restore the emphasis on pensions. Over the past few decades, the role that pensions have played in the round of the compensation offer made to potential employees has reduced considerably and, I would say, undesirably. There is much more emphasis today on the immediate levels of compensation, on “How much will I earn this year?” rather than on “How much of what I earn am I putting away for my long-term retirement needs?”.
House of Commons statistics have tracked the active membership of occupational pension schemes for private sector and public sector employees, and have compared 1995 with 2010. Over that period, the number of public sector workers in such pension schemes increased, from 4.1 million to 5.3 million, but the number of private sector workers halved, from 6.2 million to 3.1 million. That was a halving in the coverage of occupational pension schemes in a very short period—15 years—which is why I say that the change has been dramatic. Being conservative, I like to see things in the round of their consequences. We are now seeing that many people fear that they do not have enough money for their retirement, and the Government have rightly recognised the need to encourage pensions through auto-enrolment programmes. This would be another measure that would encourage people by, as I shall explain in a minute, creating a floor on public sector pensions that would enable the focus to turn back to how pensions will be provided for private sector workers.
The third point is the role of a future fund in creating a sovereign wealth fund. To create a future fund, we have to fund it—and, boy, does it take a lot of money. If we have £1 trillion of liabilities, that is a lot of money to save up, so a long period is needed. The Australian future fund set a period of 14 years before money could be taken out: the law was passed in 2006, and no disbursements can be made until 2020. For the UK, taking a 20-year period, it would require a minimum of at least £20 billion a year—probably significantly higher than that; somewhere between £20 billion and £30 billion a year—fully to fund all the Government pension schemes over those 20 years.
To put that in context, that figure is equivalent to 3% of total Government expenditure. It sounds a lot, but the Government spend a lot—it would be 3% of expenditure—and it would be only half the money that the Government are spending on the interest on their own debt. It is therefore a manageable amount of money, even though the amount is significant. In addition to looking to fund that out of annual public expenditure, it would also be possible to make asset sales into the fund. In fact, the Australian future fund started with an asset transfer, from the sale of part of the telecommunications company Telstra, for its seed investment. I have checked—with the Minister here, I wanted to be absolutely sure—and the Government’s deficit reduction targets would not be imperilled by any future sale of assets going into a future fund. Quite rightly, if I may say so, the deficit reduction targets are set absent of any funds from the proceeds of the disposal of certain assets, such as those of Royal Bank of Scotland.
Some may say that taking £20 billion out of public expenditure when we are trying to create demand is a very odd suggestion, but of course the £20 billion would not be lost from the economy. Essentially, £20 billion would be transferred from current expenditure to an investment fund for long-term investment. That money would become a fund of resources that could be used to invest in long-term projects. If we take the Ontario teachers’ pension fund—I hope you will look it up later, Mr Leigh—it involves patient capital that is invested in long-term investment projects. It is there to secure the pensions of those wonderful teachers in Ontario; they are not quite, but almost, as good as the teachers in Bedford. It is there to protect their pensions, which it does by looking for long-term investment returns. It is the fund that seeded the money for Birmingham airport. If we had our own infrastructure fund set up as a future fund for public sector pensions, we could provide resources to fund long-term investment projects.
Let me say something that I rarely say, which is that I agree with the comments made by the Secretary of State for Business, Innovation and Skills, who spoke yesterday about the need for a significant investment in housing construction. Of course, we need other construction projects, but we understand that we are under fiscal restraints because we must demonstrate that our deficit is being reduced. I ask the Treasury team to consider this very carefully: in current market conditions, particularly with the constraints of fiscal responsibility and the lenient conditions for monetary policy, a future fund would be uniquely placed to provide the long-term patient capital to fund such infrastructure investments, without there being any challenge to the probity of the Chancellor’s deficit and debt reduction policies. This environment provides an opportunity to fund and seed a future fund with the resources from the Government’s credit easing or quantitative easing programmes, and that would happen in such a way that markets would see that it was matching a reduction in the country’s long-term public liabilities for funding public sector pensions.
Dr William McCrea (South Antrim) (DUP)
The hon. Gentleman is making a visionary proposal. How does he believe that he could bring the public with him, not only in accepting his proposals but in having a profitable engagement about them?
Richard Fuller
I am grateful to the hon. Gentleman for his intervention. I recently got the box set of “Yes Minister”, and “a visionary proposal” has echoes of “a courageous decision” in the lexicon of that show. However, he raises the important point of how we are to bring the public along with us. That can be done in a number of ways. First, it is a responsibility of our generation to show young people that we are doing everything we can to give them a better future. That is what mums and dads are doing around the country right now—cutting back on their own budgets to make sure that their kids have a few extra luxuries and are protected from some of the problems that we are going through as we try to reduce our deficit. The future fund would be another way of engaging with and doing something for younger generations, and I hope that groups such as the Intergenerational Foundation will press that message.
I am conscious that I am taking up the Minister’s time, but I want to make these points, if I may, Mr Leigh. Secondly, trade unions have been very concerned about a race to the bottom on pensions and—you know what—for many reasons, they have been fair in making that point. We do not want to have minimal or zero pension provision. It would be too attractive to take that headline number for this year’s income; it would be far better for us to have a structure in which people understand the proper role played by pensions. If we said to trade unions, during the process of reviewing public sector pensions, “That’s it—no more reviews,” that would deal with all the fears of people enlisting in pension programmes about another change somehow coming in. They have already had one change and now there is another, so they are thinking, “Well, there’ll be another one, so why should I contribute to a scheme when I don’t know where it’s going?” If we called a halt to that while investing in a public fund—the future fund—we could tell trade unions, “That’s the floor in public sector pensions. Now work with the Government on trying to encourage the private sector to start rebalancing the ways in which it looks at compensation, so that the role of pensions is restored to its rightful place.” In those ways, we can bring people along.
Of course, the person I most wish to bring along with me in relation to this opportunity is the Minister, but I am fearful that I am not in a position to do so today. However, I hope that, much like the hon. Member for South Antrim (Dr McCrea) and me, she is at least engaged to look at what the hon. Gentleman called the “visionary” idea of having a proper and fair way between the generations and of accounting for public sector pensions through a future fund.
The Economic Secretary to the Treasury (Miss Chloe Smith)
It is a pleasure to respond the points made by my hon. Friend the Member for Bedford (Richard Fuller). A number of us have heard him make those points passionately and eloquently in the House, and in a fairly factual way, I shall lay out what the Government are able to say in response.
Before doing so, I congratulate my hon. Friend on securing this debate, because he has been able use this platform to draw attention to the importance of ensuring affordability. He has spoken in robust and wise terms of the bombs that an irresponsible Government might leave for future generations, and I particularly congratulate him on raising such themes in his well-informed and practical discussion. I suspect that he will agree that it is a great shame that no Front Bencher from Her Majesty’s Opposition is here to join us in the debate. After all, they have a sizeable charge to answer in terms of what they left for future generations in this country.
I shall describe the situation that we face. As I expect you know well, Mr Leigh, the annual cost of public service pensions paid out has risen by more than a third over the past 10 years to £32 billion. To put that in context, as my hon. Friend did for other areas of spending, that figure is more than what is spent on police, prisons and the courts combined. Put simply, costs have of course increased because people are living longer. Although improvements in longevity are very welcome, the Government are therefore paying public service pensions for much longer than was expected when the schemes were designed. The bulk of that extra cost has mainly fallen on the taxpayer.
My hon. Friend is well aware that rebalancing the costs of providing pensions more fairly between employers, employees and other taxpayers requires bringing expenditure under control. We must make far-reaching structural changes to scheme designs, and that is what the Government are doing.
My hon. Friend has teed me up to deal with the remarks of Lord Hutton, who produced a landmark report—Members are well aware of it; perhaps you even have it on your bedside table, Mr Leigh—that took an impartial and comprehensive look at public service pensions. The Government are committed to implementing that blueprint, which will give us a new public sector pensions landscape. I do not intend to examine that landscape in detail, but I will make some points about it.
I emphasise, as my hon. Friend already has done, that this is not a race to the bottom. It is important to get public service pensions on a fairer, more affordable footing, but the Government must also ensure that the hard-working public service workers continue to receive pensions that are among the very best available. That is what has encouraged us to consider the changes so carefully. They have been discussed extensively with trade unions and other scheme representatives for more than a year, and those discussions continue.
The changes will deliver the Government’s objective to ensure that most low and middle earners who work a full career will receive pension benefits that are at least as good, if not better, than they would get now. They will also deliver our commitment to protect accrued pension benefits for those closest to retirement.
I have digressed somewhat, so let me return to the key point from Lord Hutton’s report with regard to this debate: the concept of funded versus unfunded. My hon. Friend has referred extensively to the Australian Government’s future fund, but we must bear in mind that we in this country are not alone in providing unfunded public service pension schemes. It is also fair to note that all pensions, whether funded or unfunded, are claims on the output of our successor generations. The great and truly visionary questions raised by my hon. Friend relate to intergenerational fairness, which is an issue that spans both funded and unfunded schemes. The funding status does not determine the sustainability or affordability of pensions, or the size of liabilities built up over time. Unfunded pension schemes are commonly used by Governments, because they are the most cost-effective way to provide pensions benefits over the long term. The method is available to Governments, but not necessarily to the private sector.
Lord Hutton’s report—or, to give it its full name, the interim report of the Independent Public Service Pensions Commission—found that keeping schemes unfunded has many advantages. It also dealt with some areas of funded public service pension schemes in this country, but recommended no change. The report stated that keeping schemes unfunded avoids potentially significant investment management costs and the risks involved in investing, whether in the UK or overseas. The report also noted that there are risks involved in the Government—in one guise or another—controlling up to £1 trillion or more of financial assets. It also stated that, even when the funds are placed in the hands of trustees, in an emergency the Government could still be compelled to underwrite the funds, which represents a further risk.
My hon. Friend spoke of the Ontario teachers pension plan as an example in support of his cause, but I feel honour bound to put a few points on record about its current performance, which is a cause of concern. The plan has experienced recurring funding shortfalls for the past 10 years. Indeed, as of 1 January, it is projecting a $9.6 billion shortfall, because the cost of future pensions continues to grow faster than the planned assets. That is connected to how the plan’s members are living longer and to interest rates.
Ireland’s national pension reserve fund also gives us cause to reflect on what can happen with such funds. My hon. Friend may have read the same Financial Times article as I did in November 2011 that reported on how that reserve is to be tapped for €12.5 billion of the bail-out costs with regard to Ireland’s public finances. There are risks connected to some of the schemes, so I do not necessarily agree with my hon. Friend’s interpretation that all is rosy in the land of funded schemes.
Richard Fuller
I do not think that anyone is saying that all is rosy in one scheme or another. Equally, I am sure that the Minister would agree that all is not rosy in the current system. One of the reasons why we have an off-balance sheet is that Governments do not like to talk about the obligations that they incur when they take on additional work. Does she accept that, if we transition to a fund, rather than the current scheme, and Governments add it to the public sector payroll, they would have to justify the full obligation of those pensions to the fund?
Miss Smith
My hon. Friend makes a valid point. Such a scheme could be designed in that way, to entrench the principles of responsibility that have been the key note of what he has outlined today, and for which I respect his argument.
To respond to the debate and to offer the Government’s view on funded pension schemes, we support the conclusions of the Hutton report, as my hon. Friend knows. I think that he will therefore understand why I acknowledge the report’s concerns about funded schemes. I think that he will also appreciate why I want to finish by talking about the problems that can result from moving to a different scheme structure. The transitional costs are difficult to contemplate. As is often the case—perhaps in those countries that have already tried this—a move to funded schemes involves significant financial costs.
Contributions in respect of current employees would have to be diverted to the new pension funds. Pensions in payment would therefore have to be financed through extra Government borrowing or taxation. To put a figure on that for the UK economy, it would cost more than £25 billion next year alone, with costs declining only very gradually over the 21st century. It would be problematic for the UK Government to contemplate that at this time, owing, as my hon. Friend has already said, to the actions of previous Governments and to current global trends.
My hon. Friend referred to the Government’s credit easing schemes, which were announced earlier this year. He is interested in how the funds connected to those schemes could be used in relation to a future scheme, but, although the national loan guarantee scheme will provide up to £20 billion of guarantees to banks, that is not a case of guaranteeing loans to individual businesses. The full credit risk of the loans remains with the banks, so no cash is set aside for the project that could be redirected, as my hon. Friend suggested, to setting up a pension fund. I will direct his interest—I am sure that he is already, as the phrase goes, “all over it”—to the memorandum of understanding with the National Association of Pension Funds and the Pension Protection Fund that was announced in last year’s autumn statement. That might be a way to gain direct investment from pension funds into UK infrastructure assets, which I am sure my hon. Friend is interested in.
To sum up, the Government will introduce legislation in the autumn to implement the final proposals that have been reached based on Lord Hutton’s recommendations, including maintaining the current funding agreements. The Government believe that those deals should not need to be revisited in the next 25 years. We have said so publicly and deliberately, and stand by that position. That should reassure pension scheme members that they are right to remain in their schemes, which will remain among the very best available. The Government’s commitment to continue to provide guaranteed, index-linked benefits in retirement should encourage young and old people alike to take up the pensions savings baton. The reforms should achieve the objectives of sustainability, fairness and responsibility within the public finances.
Parkinson’s Disease (Employment and Support Allowance)
(12 years ago)
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Mrs Linda Riordan (Halifax) (Lab/Co-op)
It is a pleasure to serve under your chairmanship, Mr Leigh, and I am delighted to have secured this debate on Parkinson’s disease, which is a very important issue for many of my constituents and thousands across the country.
A few weeks ago, a number of people with Parkinson’s came to my surgery and I listened with astonishment to the account of the impact that Government welfare changes could have on their lives. They felt penalised for things out of their control. At a most difficult time in their lives, they were being dealt yet another blow due to the heartless system that is in place.
Before I come to my main points, I will set out some background about Parkinson’s disease. It is a progressive and incurable neurological condition. Although it can be well managed with medication and treatment, there is no prospect of a person’s condition improving over time, and there is currently no cure. It is a fluctuating and unpredictable condition. Everyone with Parkinson’s is different, but many people report that symptoms can fluctuate rapidly during the day or week by week. That can include sudden freezing, tremor, muscle-tightening and slowness of movement, or other less visible symptoms such as pain and fatigue. As chair of the all-party parliamentary group on chronic pain, I care passionately about the issue.
Parkinson’s onset is common in people in their 50s and early 60s, which presents an additional age-related barrier to employment for those affected. Many people with Parkinson’s are able and want to work, but many find it difficult to return to work because potential employers make discriminatory judgments about what it means to have Parkinson’s. Many people with the disease now receive employment and support allowance. Currently, claimants with Parkinson’s need to show that they have significant functional impairment that creates serious barriers to work to be eligible for ESA.
I was staggered to hear the stories of people with Parkinson’s—how their illness is dealt with and how the, to be frank, rather cold and heartless system in place fails to recognise the nature of their condition. It fails to understand what people might be going through and offers a fairly rigid process that is the same for any other group of people looking to claim benefits. The process that determines someone’s qualification for ESA uses a points category, as the Minister knows. People are assessed on different criteria and currently if someone scores 15 points they are found to be eligible for the work-related activity group. I will say more about that in a minute.
Through listening to people, such as my constituent Ian Barraclough, I found out the reality of the process, which, as is often the case, is somewhat different from the spin. Sadly, the assessment system fails to recognise, let alone understand, the condition of Parkinson’s. The group that visited my office outlined how there are good days and bad days. Sometimes they can feel fine and then suddenly freeze and their movements become much slower. However, that is barely recognised by the current system; it needs to be changed urgently. I ask the Minister: when do the Government plan to recognise the unique nature of Parkinson’s in the current welfare system and when will they adapt the claim form to ask specific questions relating to the fluctuating and progressive nature of this and other similar conditions?
As things stand, people with Parkinson’s are not asked their prognosis and what precautions they have to take in everyday life because of the sudden and unpredictable nature of their condition. For each of the simple tasks on that form, they are not asked if they can do something repeatedly, reliably or safely, or even how long it takes to perform a task. Surely those are common-sense matters to establish if an assessor is to make a judgment about ability to work. Parkinson’s UK and other charities representing those with fluctuating conditions have given their recommendations to the Department for Work and Pensions on how the claim form should change and they see no reason why those cannot be adopted as a matter of urgency.
Jessica Morden (Newport East) (Lab)
I congratulate my hon. Friend on securing this debate, which I know will be much appreciated by all those caught up in the work capability process. The Minister’s stock response when questioned about it seems to be to imply that it needs time to bed in. Does my hon. Friend agree that we need the Minister now, after all these months, to step in, get a grip and take responsibility for the process, which is not only deeply unfair to those with serious conditions but is costing the taxpayer dearly through the appeals process?
Mrs Riordan
I absolutely agree with my hon. Friend. It needs to be looked at now because people are suffering and it is costing the taxpayer in the long run. I will say more about that later. With respect to the Minister, the people with the condition are best placed to comment on what should be in the forms and what needs to be done to serve people with the disease best.
The nature of the work-related activity group also needs to be addressed.
Sheila Gilmore (Edinburgh East) (Lab)
Before my hon. Friend leaves the issue of forms and tests, proposals were brought forward, and were endorsed by Professor Harrington. The Minister promised what he calls a gold standard review in his response to Professor Harrington, which we were told would start early in the new year, to look at this and other issues about the test and descriptors. Does my hon. Friend agree that must now be done urgently? We are now in June and there is no sign that the review has even started.
Mrs Riordan
I absolutely agree with my hon. Friend. That is the message I picked up from the visitors to my surgery. I will move on to when things changed and to show that they are already losing benefits.
That work-related activity group is for those people with Parkinson’s and other conditions and disabilities where it is recognised that the person cannot currently work but may, with considerable support over time, be able to move into employment, which is what the majority of those suffering with Parkinson’s want. Around 45% of people with Parkinson’s assessed for ESA are placed in that group. By common consent, far too many people are placed in that group because the process is very crude and simplistic—as my hon. Friends and I have outlined—and does not take into account the fluctuating and progressive nature of Parkinson’s. Indeed, I have heard of people with Parkinson’s being repeatedly reassessed in the WRAG.
Dr William McCrea (South Antrim) (DUP)
Bearing in mind how Parkinson’s effects can change from day to day, surely those making decisions on benefits for sufferers must have a more sympathetic and helpful approach, rather than giving a clinical and cold decision?
Mrs Riordan
I absolutely agree with the hon. Gentleman. As I said, people are reassessed in the WRAG with a computer-generated report churning out recommendations that the person should return to work in six, 12 or 18 months. To imply that someone with Parkinson’s will miraculously recover and get back to work is frankly insulting. The matter does not end there. The person then has to attend meetings with Jobcentre Plus, but the support that is meant to be offered to find work just is not there. Sometimes a person is told, quite bluntly, “Come back in six months or a year’s time; we know you’re not going to get a job.”
The final insult from the Welfare Reform Act 2012 is that many people with Parkinson’s in the work-related activity group are now losing their ESA after a year. That happened to my constituent, Ian Barraclough. Those who have paid their national insurance now have the safety net of the financial support from ESA whipped away from them. They have done the right thing yet have an uncertain future, and they now have to rely on a working partner or on eroding their modest savings because the state will no longer support them.
Herein lies the contradiction at the heart of the Government’s policy. They ruthlessly means-test people’s allowance and fail to have an adequate system in place to check the seriousness of a person’s Parkinson’s disease. When everything is finished, they tell people that they should recover and get back to work. For many people with Parkinson’s, this leads to a feeling of lack of worth and that they are not being listened to. A computer-generated system tells them that they are fit to work when that is not the case.
There are not many jobs to go to anyway. Even if a person feels they can, with support, do some work, many employers are not willing to take on people with Parkinson’s, as they know that the condition can change from day to day. Sadly, the Government fail to recognise that, and people with Parkinson’s do not get the welfare support they need and deserve. These cold-hearted, unnecessary and disgraceful reforms need to be looked at again.
Instead of being placed in the work-related group, it is my belief, and that of Parkinson’s UK, that many more people with Parkinson’s should be in the support group. That group is for those with the most severe functional impairment, where there is no expectation that they can return to work. However, currently only 27% of people with Parkinson’s are placed in that group. The Government need to extend the range of the criteria that allow people with severe and progressive neurological diseases to be placed in the support group. Yet again, the Government fail the compassion test with their dogmatic insistence on placing people in the work-related activity group. They fail to acknowledge that many people with Parkinson’s have reached a stage where they are not able to work again. Can it be right that someone whose tremor is so bad that they cannot hold a pen or do up their trousers is placed in the work-related activity group? Yet there are many examples of people affected by Parkinson’s who are being put into this group.
The Government need to think again. They need to recognise that, by the time they are assessed, many people with Parkinson’s have given up work because it is making their condition worse. They are not scroungers. They have worked hard all their lives. My constituent Ian Barraclough has paid his tax and national insurance for four decades, since he was 17. They need to stop means-testing and put more people with Parkinson’s, who are clearly unable to work, in the support group. They need to stop the heartless treatment of people with this condition. I have heard story after story in my office from people about how they had been treated; none had many positive things to say. At a time when they need society to support them, they think the Government are walking by on the other side.
The independent review by Professor Harrington, who was mentioned earlier, made recommendations last year for what he calls a “gold standard review” of the validity of the tests for those with fluctuating conditions and mental health, intellect and cognitive issues. Only now has the Department seemingly woken up to the need to do that. The longer that people with Parkinson’s are subject to these unfair tests, the greater the stress on them and their families. I urge the Minister to make this his priority—both testing thoroughly the validity of the descriptors and those put forward by charities, and revising the claim form.
I secured this debate because I was moved by the countless stories of despair in people’s lives, when what they need is hope and support. I hope the Government recognise that they are wrong, and have the decency to look again at their approach to people with Parkinson’s. I hope that they put in place policies that are decent, fair and just, rather than the current system that, disgracefully, leaves people with Parkinson’s feeling like second-class citizens.
The Minister of State, Department for Work and Pensions (Chris Grayling)
It is a pleasure to serve under your chairmanship, Mr Leigh. I congratulate the hon. Member for Halifax (Mrs Riordan) on securing the debate.
I am glad to have the opportunity to set the record straight on many of the things the hon. Lady said. However, let me start by saying that we understand and are hugely sympathetic; we care very much about people with Parkinson’s. It is about providing the right mix of support for those people who can still remain in the workplace. It is clearly better that they should be able to do so. When they reach a point where that is no longer a possibility, it is entirely appropriate for the state to provide them with unconditional support. However, I am afraid that the picture painted by the hon. Lady was rather one-sided. I hope to set out why I think she has got it wrong.
The hon. Lady talked about cold-hearted and disgraceful reforms, and about a tick-box system. I gently remind her that that system was introduced by her party when it was in government. In the past two years, we have tried to improve and humanise it. When Professor Harrington first reported on this, he said that one of the great failings of the system we inherited was that there was not enough of a human dimension. He also said that we were not making enough effort—by “we”, he meant the system set up by the previous Government—to secure a proper mix of evidence about an individual. I will briefly walk the hon. Lady through the changes that we have already made. I will also explain to her what is happening about the gold standard review—the work on that has already started. I want to say a little bit about the support we provide to help those people who can still work to do so. On all those matters, she is wrong in the conclusions that she has reached.
Let me be clear and say that there is no such thing as the perfect system. We will never get this entirely right. I would love to say that we could, but these are difficult judgments to make. Often, we are encouraging people to take a step that they may be reluctant to take. If one loses belief in one’s ability to work, it may take some time to be persuaded that there is a way of getting back into the workplace. There is no doubt that this is a difficult process for all those who go through the work capability assessment and the reassessment process. We want to do the right thing. That is why we have introduced changes that increased the size of the support group, and why we have taken steps to ensure that we broaden the unconditional support available to people who are some of the sickest and most challenged in our society. However, we have to try to find the right balance.
I certainly believe—we certainly believe, and I thought it was the view of the hon. Lady’s party—that, where it is humanly possible, it is better either to get people back into the workplace or to help sustain them in the workplace before they eventually reach a point where that is no longer possible. Parkinson’s disease is a deeply distressing and difficult condition. As she said, it is a continuously degenerative condition—it fluctuates, but there is no cure. Of course, it is difficult and stressful for the families of those who suffer from it and for the sufferers themselves. However, it is certainly better—I am sure that all those who work with Parkinson’s sufferers agree—to provide support to keep those people in the workplace in some form of work for as long as possible. It is better for them in terms of quality of life and their overall morale, and it is likely to enable them to lead a longer and more fulfilling life with the condition.
Let me start with the process itself. As I said, I do not pretend that it is perfect, but I think that we have made significant improvements in the past two years. We have implemented all the recommendations in Professor Harrington’s first report. We took steps that humanised the process so that, instead of getting the classic computer-generated letter from Jobcentre Plus saying, “You will attend an assessment”, at each stage of the process, people get phone calls that explain in detail what will happen to them. We ask and encourage them to bring forward additional evidence.
We have rebalanced the process so that the work capability assessment plays a smaller role in the decision than was originally the case. We have done that because we want to take into account additional medical evidence about a person’s condition so that it is not just a computer-generated exercise. We must bear it in mind that the decision is not taken by the assessor who carries out the assessment, but by a decision maker in Jobcentre Plus, who looks at the assessment and the ESA50 form that the claimant has submitted setting out the nature of their condition, as well as any medical evidence that they wish to submit to Jobcentre Plus. We have introduced a process of automatic reconsideration—a second opinion in Jobcentre Plus—so that if we have got it wrong the first time, there is a quick, simple process for looking at that decision again. The process does not require the claimant to go immediately to appeal; they get a second opinion before they reach that stage, so I think we have a better process.
Chris Grayling
I cannot give the hon. Lady the updated numbers, because they are national statistics and will be published shortly. However, they are still too high. We are in dialogue with judges who preside over tribunals to look at the reasons for that. The reality is that a large number of people go to appeal because they have the opportunity to do so. Sometimes they fall into the fit for work group, which, typically, does not apply to people with Parkinson’s. Of course, they are losing money, as was set out in the process that the previous Government set up, so they have a particular reason to appeal. However, we are working as hard as we can to ensure that the decisions are right first time so that we minimise the number of tribunal successes for claimants. We want to get it right; I do not want people to have to go to tribunals to overturn decisions.
Jessica Morden
Is it not true that the last time we saw those figures, between 40% and 70% of people were successful on appeal, depending on whether they were represented or not?
Chris Grayling
The average figure was about 40% in the last figures that were published. That represents only about 6% of overall claimant numbers. In the case of decision making for Parkinson’s, people are much more likely to end up in a support group. On the average numbers for new claims going through a work capability assessment, 40% are entitled to ESA; 13% are put in the support group; 26% are put in the work-related activity group, and 60% are fit for work. That is the whole gamut of applications.
For Parkinson’s, 71% are entitled to ESA; 33% are in the support group; 38% are in the work-related activity group, and 29% are fit for work at that stage. We expect those who are fit for work—as they reapply and are reassessed as their condition develops—to enter the work-related activity group and then the support group. Of course, when people are not able to work again, they will receive support in the support group.
The hon. Member for Halifax mentioned the case of the constituent affected by the time-limiting proposal. She is right to highlight that. It applies only to people in the work-related activity group and only to people who have money in the bank or who have another form of household income. It establishes the same principle to contributory ESA as has always applied to contributory jobseeker’s allowance. In the way our welfare state works, if someone is a JSA claimant with another form of income or with money in the bank, we have always allowed them to get a contribution back in recognition that they themselves have paid contributions. They get six months of contributory JSA if they have other financial means. We have simply applied that same principle to contributory ESA. We have done that for reasons that the hon. Lady well knows. We face enormous financial challenges, and we have had to take back that part of our welfare state into the safety net that it was originally intended to be, and we have had to accept that we cannot afford to pay benefits to people who have got another form of household income. We debated that extensively in the welfare reform debates. I would rather that we had not had to make that decision, but financial necessity meant that was inevitable.
We are not talking about people who have no other means of support. They are not people whose condition has developed so that they can no longer realistically work again. They are people in the work-related activity group who may be able to return to work with help and support, but possibly not in the profession that they worked in previously. It may be that their condition has made that impossible, but that does not mean that it is impossible for them to work.
Sheila Gilmore
The Minister has given us figures for the proportion of people in the work-related activity group, but he has not really addressed the issue of Parkinson’s. The figures that the Parkinson’s Society presented suggest that 45% of claimants are being placed in the work-related activity group. Such people will have lost their previous jobs and are often in their 50s and early 60s. With the loss of the contributory benefit, they have to use up their retirement savings. Will the Minister address the specific issues around Parkinson’s?
Chris Grayling
Nobody has to spend their pension funds while they are of working age. Realistically, if people put aside money for a rainy day, and they become ill and lose their job, but have money in the bank, what else constitutes a rainy day? There will always be limitations on the amount and breadth of support that the state can provide through the welfare state. There were limitations under the hon. Lady’s Government; there are under our Government. The constraints on us are greater than on hers, because the money is not there any more. The reality is that the state has never provided unconditional support for everyone. There are limits inevitably created by an individual’s financial means.
We have only five minutes remaining, so let me touch on a couple of the other points that the hon. Member for Halifax raised. Let me give the context for the gold standard review. We invited the mental health charities and the fluctuating condition charities to bring forward their thoughts on how we could adapt the work capability assessment to reflect more closely what they believed to be the best approach. I am open about this. I want continually to improve this process and I want it to be as good and effective as possible.
What the charities came back with was extremely ambitious, not just in changing the current descriptors. It would involve rewriting and recasting the whole work capability assessment for not only fluctuating conditions or mental health problems, but physical conditions as well. It would involve re-engineering all the software and the assessment. It would probably be a two-year process and extremely expensive. Before we embark on that process—I am open to looking seriously at that—we need to understand the impact of the changes.
More than a year ago, I was told by the charities that if I implemented the internal review that I had inherited from the previous Government, with recommended changes to the work capability assessment, it would disadvantage particularly people with mental health problems. The advice that I had internally was that we had done a similar review to the gold standard review on the work capability assessment, as it was then structured, and it showed that more people with mental health problems would end up in the support group—the opposite of what the charities had said. History has shown that the internal advice was right and the charities were wrong, so I really want to get this right. I do not want to embark on a grand project to reorganise this without getting it right.
Work has started on the gold standard review. The terms of the project have been agreed. There are meetings between the Department and the charities virtually on a weekly basis at the moment. The work is being carried out over the next few months. We will judge the outcome of that work and ascertain whether there is a need to make changes or whether the charities have got it wrong. We have to do that. The hon. Lady would expect us to do that. In the meantime, we are looking to embed some of the recommendations that they have made into the way the ESA50 form is structured. If that enables us to tease out more information that is of value to the decision maker, informing the decision about a person’s condition, that is clearly the right thing to do.
The other point that the hon. Lady made was about the support not being there for people in the work-related activity group. That is not correct, either. Every single person in the work-related activity group on ESA has access to the Work programme tomorrow. They will receive specialist back-to-work support from one of the providers operating up and down the country—a mix of public, private and voluntary sector organisations, some with specialisms in fluctuating conditions. There is a specialism within each supply chain for those who are on ESA. One of the challenges that we have at the moment is trying to encourage more people to come forward and take advantage of that support. It is absolutely not the case that people cannot access help and support. Everyone has access to support, and it works.
We had a case a few months ago—not a Parkinson’s sufferer, but a gentleman from the north-east who was partially sighted and in a wheelchair. He had applied for thousands of jobs and got absolutely nowhere. He did not believe he could get back into work in a part of the country where the labour market is weak. He joined the Work programme and within a small number of weeks was in employment with a job and his life turned round. That, fundamentally, is what this is all about. I know it is difficult and sometimes challenging. I know that it takes many people through a process that they do not want to go through, because they do not actually believe that they can make a return to the workplace. Is it not better if we can help them get there? Even if they happen to have had to give up the profession that they have had for years, because their condition makes that no longer possible, surely it is better to get them back into doing something that they can do with their condition, that can keep them in the workplace for a few more years and give them a chance to live a more fulfilling life. That is what we are trying to achieve. We will not always get it right. The system is not perfect. It never can be perfect. I wish that it could be, but it cannot.
In conclusion, I can tell the hon. Lady that this is absolutely about saving lives, not saving money. I genuinely want to see more people given a chance to live a more fulfilling life. We will do everything that we can to help them, but those who cannot work again will get ongoing unconditional support.
Written Ministerial Statements
National Minimum Wage (Seafarers)
The Parliamentary Under-Secretary of State for Business, Innovation and Skills (Norman Lamb)
I have today published an updated policy statement on enforcement of the national minimum wage (NMW). The statement confirms that the Government will enforce the NMW on behalf of seafarers who ordinarily work in the UK and sets out our approach to determining whether this is the case.
I have arranged for copies of the updated policy statement to be placed in the Libraries of both Houses.
Financial Services Authority
(12 years ago)
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The Financial Secretary to the Treasury (Mr Mark Hoban)
The annual report 2011-12 of the Financial Services Authority (FSA) has today been laid before Parliament.
The report forms a key part of the accountability mechanism for the Financial Services Authority under the Financial Services and Markets Act 2000 and assesses the performance of the Financial Services Authority over the past 12 months against its statutory objectives.
Early Education and Child Care
(12 years ago)
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The Minister of State, Department for Education (Sarah Teather)
I am pleased to announce that Professor Cathy Nutbrown is today publishing the findings of her independent review of training qualifications and careers opportunities for people working in early education and childcare. Copies of her report, “Foundations for Quality: Review of Early Education and Childcare Qualifications” will be placed in the Libraries of both Houses.
The importance of the early years—as a foundation for life and for future attainment and success—cannot be overestimated. Children’s personal, social, emotional, language and physical development are of paramount importance, and without strong foundations in these areas, children will struggle as they develop in life, with friends, and in school. That is why the Government have taken action to extend access to free, high-quality early education, and to reform and simplify the early years foundation stage.
It is essential that people working in the early years have the right skills and training to give children the best start in life. One of the most important factors affecting a child’s healthy development is the quality of the education and childcare they receive in the earliest years. That is why, in July last year, I set out my intention to commission a review of existing early years qualifications and training. I asked Professor Cathy Nutbrown of Sheffield university to undertake an independent review, to consider how best to strengthen qualifications and career pathways, focusing on the qualities needed to ensure that young children receive the best quality pre-school education.
I asked Professor Nutbrown to consider four main areas:
The content of early years training courses testing their strength and quality;
How to build on the work to date to develop qualifications to meet the needs of all learners, including young people undertaking full-time college courses and those who currently work in the profession;
How to ensure that entry qualifications are of a high standard and meet the needs of employers, and offer sufficient scope for progression within the sector;
Options for helping new qualifications acquire the equivalent status and currency of the nursery nurse education board (NNEB) qualification.
Professor Nutbrown is making recommendations in all these areas, and her report makes a strong case for further progress in improving quality and professionalism in the early years workforce.
I am hugely grateful to Professor Nutbrown for conducting this important review and to those who have supported her. I warmly welcome Professor Nutbrown’s thoughtful and thorough report, which takes a balanced look at the needs of the sector. The early years are immensely important and this report will be invaluable in helping the Government consider the best way to encourage talented people to work in the sector and improve outcomes for babies and young children in this important stage of their lives. We will read her report with care, and respond in due course as part of our continuing commitment to ensuring that childcare remains high quality and affordable to parents.
Agriculture and Fisheries Council
(12 years ago)
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The Secretary of State for Environment, Food and Rural Affairs (Mrs Caroline Spelman)
The next Agriculture and Fisheries Council is on Monday 18 June in Luxembourg and is the last under the Danish presidency. My right hon. Friend the Minister of State for agriculture and food will represent the UK. Richard Lochhead MSP and Alun Davies AM will also attend.
The main item on 18 June will be the presentation and discussion of the presidency’s report of the reform of the common agricultural policy (CAP). This is expected to highlight areas of emerging agreement, as well as key issues remaining to be addressed under the forthcoming Cypriot presidency.
There will also be an orientation debate on the proposed rural development regulation as part of the CAP reform package. The debate is expected to address the issues of the level of spend under pillar two that will have to be focused on environmental outcomes and whether funds transferred from pillar one to pillar two need to be subject to national co-financing.
There are two COREPER points down for possible discussion and the adoption of Council conclusions: the 2012-15 EU animal welfare strategy and the protection of animals during transport.
Under any other business there are five confirmed items:
An update from the Commission on the implementation of the group housing of sows by 1 January 2013;
Report from the presidency on the G20 meeting in Mexico City 17-18 May 2012;
Presentation from the presidency on animal health aspects of Health Council conclusions on the impact of antimicrobial resistance on the human health and veterinary sector; and
A Commission report on the application of a Council regulation on organic production and labelling;
Reports from Poland and Lithuania regarding the situation in the milk and dairy market.
British Waterways Board
(12 years ago)
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The Parliamentary Under-Secretary of State for Environment, Food and Rural Affairs (Richard Benyon)
In advance of the forthcoming debate on the draft British Waterways Board (Transfer of Functions) Order 2012, I am placing in the Libraries of both Houses a copy of the draft British Waterways Board transfer scheme 2012 and a copy of the draft Waterways Infrastructure Trust.
If Parliament approves the transfer of functions order, it will, when made, transfer the statutory functions of the British Waterways Board in England and Wales to the Canal & River Trust. The transfer scheme will come into force in conjunction with that order and will be made under section 23 of the Public Bodies Act 2011. It will divide and transfer the property, rights and liabilities of the British Waterways Board between the Canal & River Trust, the Canal & River Trust Community Interest Company—Canal & River Trading CIC—and the British Waterways Board, as it continues to operate in Scotland.
As a default provision, except where provided for elsewhere in the transfer scheme, all property, rights and liabilities of the British Waterways Board will transfer to the Canal & River Trust. This is to ensure that the British Waterways Board, when operating solely in Scotland, is not unexpectedly burdened with liabilities. Schedules 1 to 3 list the division of property between the recipients.
The British Waterways Board, operating solely in Scotland, will receive all of the property, rights and liabilities relating to the activities of the British Waterways Board in Scotland as well as a portion of the British Waterways Board’s cross-border contracts. The division of assets between the Canal & River Trust and the British Waterways Board, when operating solely in Scotland, was agreed by the UK Government and the Scottish Government through a disaggregation process. The draft transfer scheme was also made available to the Scottish Parliament during its consideration of the transfer order. The Scottish Parliament gave its consent to the draft transfer order on 9 May 2012.
The transfer scheme will divide the commercial property assets between the Canal & River Trust (in England and Wales) and the British Waterways Board, operating solely in Scotland, and will provide for their respective transfer.
In England and Wales, the transfer scheme will transfer the heritage infrastructure to the Canal & River Trust to be held as permanent endowment in a specially created trust, the Waterways Infrastructure Trust. We intend to settle the Waterways Infrastructure Trust on the Canal & River Trust as sole trustee. I am also placing in the Library a copy of the draft trust settlement, which will be executed in due course as part of the overall transfer process.
The Canal & River Trust will be charged with safeguarding the infrastructure of the waterways on behalf of the nation. The canals, towpaths, locks and other parts of the waterways are to be looked after for the benefit of future generations and the Waterways Infrastructure Trust will ensure this happens.
The Waterways Infrastructure Trust ensures that all of infrastructure property (as defined in the trust) is held as a permanent functional endowment. This means that the Canal & River Trust will not be able to sell any part of the infrastructure property without gaining the Secretary of State’s and in some cases the Charity Commission’s prior consent. Before granting such consent, the Secretary of State will hold a public consultation.
The trust settlement also requires the Canal & River Trust to grant free pedestrian access to the towpath (except in certain very tightly defined circumstances and again with the prior consent of the Secretary of State, following public consultation).
Under the transfer scheme, certain assets will be moved directly to the Canal & River Trading Community Interest Company, a wholly owned subsidiary of the Canal & River Trust. The Community Interest Company will receive the property, rights and liabilities for its trading activities which, under charity law, have to be kept in a separate vehicle from the charity itself.
European Councils
(12 years ago)
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The Minister for Europe (Mr David Lidington)
My right hon. Friend the Secretary of State for Foreign and Commonwealth Affairs will attend the Foreign Affairs Council (FAC) on 25 June. I will attend the General Affairs Council (GAC) on 26 June. Both meetings will be held in Luxembourg.
Foreign Affairs Council (FAC)
The FAC will be chaired by the High Representative of the European Union for Foreign Affairs and Security Policy, Baroness Ashton of Upholland.
Southern Neighbourhood
Ministers are expected to discuss the Commission’s report on activities in 2011, and the road map for future action. We welcome the communication and recognise the broad range of activity the EU supports in the region. We particularly welcome the increased focus on developing the political relationship through task forces held in Tunisia and Jordan, and the promotion of civil society through the new civil society fund.
Ministers will take stock of the latest situation on the ground in Syria, following the G20 summit in Los Cabos (18-19 June), and before a possible contact group meeting on Syria. The Council is an opportunity to outline our policy, along the lines of the Foreign Secretary’s statement to Parliament on 11 June. We need to support the Annan plan, increase the pressure on the Assad regime, and keep up a push for humanitarian assistance and on accountability. Ministers are likely to adopt conclusions reinforcing our messages.
On Egypt, Ministers will take stock of recent events, including the 14 June decisions by the Supreme Constitutional Court and the 16-17 June presidential elections. The Council conclusions are likely to reaffirm EU support for the political transition, and keep pressure on the authorities to maintain the momentum of tackling the pressing economic and human rights concerns.
Pakistan
High Representative Ashton is expected to report back from her recent visit to Pakistan. The subsequent discussion will be an opportunity for the Foreign Affairs Council to set out the EU’s support for Pakistan’s forthcoming elections and the EU’s commitment to improve market access for Pakistan.
Bosnia and Herzegovina
We expect Council conclusions to welcome the political progress achieved so far in 2012, and reaffirm the EU’s strong support for Bosnia and Herzegovina’s EU perspective. The conclusions are likely to reinforce the message that Bosnian leaders must urgently make a credible effort towards bringing their constitution into compliance with the European convention on human rights, thereby enabling their stabilisation and association agreement to be brought into force as soon as possible. We also expect there to be a reference to key priorities that local leaders should aim to address before making a credible membership application. We expect the Council to call for a swift and sustainable resolution to the current political uncertainty in Bosnia and Herzegovina.
EU Human Rights Strategy
We expect a discussion on the proposed EU human rights strategy, which consists of a strategic framework (a political declaration by the Council on the EU’s direction on human rights) and an action plan. There may also be discussion of an EU special representative on human rights, on which a draft mandate has been circulated amongst member states. There may be Council conclusions.
Freedom of Religion
Ministers may discuss freedom of religion or belief, following an increase in violence directed towards religious communities in Nigeria. We are active in working to defend this fundamental freedom and encourage the EU to continue to give full attention to promoting freedom of religion or belief in its bilateral and multilateral relations.
Iran
Following the limited progress in three rounds of talks between the E3+3 and Iran, there will be an opportunity for Ministers to ensure the EU maximises pressure on Iran, including reviewing the oil embargo and protection and indemnity insurance ban, ahead of implementation on 1 July.
General Affairs Council (GAC)
The meeting will be the last under the Danish presidency, and will be chaired by Denmark’s Minister for European Affairs Nicolai Wammen. There are three main items on the agenda: the multiannual financial framework (MFF), cohesion policy and preparation for the 28 June European Council. There will also be a discussion on whether to open accession negotiations with Montenegro.
Multiannual Financial Framework
As with previous meetings of the GAC, my main focus for these discussions will be for the negotiating box to reflect the UK’s objective of delivering a restrained EU budget, limited to a real-terms freeze. Within a restrained budget, a greater share should be directed to priority areas such as external action, research and climate change. I will also defend the rebate and argue against any new EU taxes. The presidency intends the negotiating box to establish parameters for the discussions after their presidency and for MFF discussion at the June European Council.
Cohesion Policy
The presidency will seek agreement of a partial general approach on several issues: on concentrating future programmes on fewer objectives; on the rules for financial instruments; on the performance framework; and on proposals on revenue generating projects. We will need to look horizontally at the specific regulations for the funds covered by the common provisions regulations, including those for the European agricultural fund for rural development and the European maritime and fisheries fund to ensure consistency between them and to maximise the opportunities for harmonising the rules to reduce burdens for final recipients and authorities.
June European Council
Over lunch Ministers will discuss the priorities for the June European Council with President Herman Van Rompuy. This conversation will continue into the afternoon, following the Council’s approval of the country specific recommendations when the plenary session reconvenes. The June European Council agenda is broad, covering growth, trade, the MFF, energy, enlargement, justice and home affairs and foreign policy. We expect the focus to be largely on economic issues in the eurozone.
Montenegro’s EU Accession
As agreed at the December 2011 European Council, the GAC will also discuss whether to open accession negotiations with Montenegro. The Commission’s May 2012 report on Montenegro’s progress implementing its reforms again concluded that Montenegro continues to make good progress and that accession negotiations should be opened. The UK supports this recommendation.
Terrorism Prevention and Investigation Measures
(12 years ago)
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The Secretary of State for the Home Department (Mrs Theresa May)
Section 19(1) of the Terrorism Prevention and Investigation Measures Act 2011 (the Act) requires the Secretary of State to report to Parliament as soon as reasonably practicable after the end of every relevant three-month period on the exercise of her TPIM powers under the Act during that period.
The level of information provided will always be subject to slight variations based on operational advice.
TPIM notices in force (as of 31 May 2012) | 9 |
TPIM notices in respect of British citizens (as of 31 May 2012) | 9 |
Variations made to measures specified in TPIM notices | 21 |
Applications to vary measures specified in TPIM notices refused | 19 |
During the reporting period: no TPIM notices were imposed; no TPIM notices were extended; no TPIM notices were revoked; and no TPIM notices were revived. A TPIM review group (TRG) keeps every TPIM notice under regular and formal review. The TPIM review group met twice during this reporting period.
One individual was charged in relation to an offence under section 23 of the Act (contravening a measure specified in a TPIM notice without reasonable excuse) during the period.
Section 16 of the 2011 Act provides rights of appeal against decisions by the Secretary of State in relation to decisions taken under the Act. Four appeals were lodged under section 16 during the reporting period.
One judgment has been handed down by the High Court in relation to a TPIM notice. On 27 March 2012, the High Court handed down the first judgment in relation to the review of a TPIM notice under s.9 of the Act. In Secretary of State for the Home Department v BM [2012] EWHC 714 (admin) the High Court upheld the TPIM notice and the control order which preceded it.
Most full judgments are available at: http://www.bailii. org/.
Personal Data Directive
(12 years ago)
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The Lord Chancellor and Secretary of State for Justice (Mr Kenneth Clarke)
The Government have decided not to exercise their right to opt out of the draft Directive on the protection of individuals with regard to the processing of personal data by competent authorities for the purposes of prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, and the free movement of such data under Protocol 19 of the Treaty on the Functioning of the European Union (the Schengen protocol).
The Government have taken this decision in accordance with the commitment in the coalition agreement, which states that we will approach legislation in the area of criminal justice on a case-by-case basis, with a view to maximising our country’s security, protecting Britain’s civil liberties and preserving the integrity of our criminal justice system.
The Government believe that our national interests are best served by participating in this Directive so that we are party to the common framework governing data sharing for policing and criminal justice across the EU. By participating, we can best build trust across member states for the necessary sharing of data to protect our citizens and make the strongest case possible for this to be done within a framework of appropriate and proportionate rules.
Social Security Advisory Committee
(12 years ago)
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The Minister of State, Department for Work and Pensions (Chris Grayling)
Later today, my noble friend the Minister for Welfare Reform will publish the outcome of the review of the Social Security Advisory Committee. I am pleased to announce that the Government support the continuation of the Committee in its current form. The Department for Work and Pensions has completed a robust examination of the Committee’s functions, delivery arrangements and governance structure. The review was carried out in line with the Cabinet Office’s key principles for reviews of non-departmental public bodies. The SSAC is a cost-effective advisory NDPB whose functions are integral to improving the quality of policy making and of secondary legislation in the Department for Work and Pensions. My noble Friend will also place a copy of the review report in the House Library later today.
Grand Committee
European Union Committee: Multiannual Financial Framework
(12 years ago)
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Lord Boswell of Aynho
That the Grand Committee takes note of the reports of the European Union Committee on the multiannual financial framework 2014-2020 (13th and 34th Reports, Session 2010-12, HL Papers 125 and 297).
Lord Boswell of Aynho
My Lords, this Motion invites the Committee to take note of two reports of your Lordships’ European Union Committee, which I now chair, regarding the European Union’s multiannual financial framework, or MFF for short. These reports were published as the Commission produced its overarching framework for the MFF for 2014 to 2020, and following the Commission’s detailed proposals. These proposals are complex but at heart this is a simple, and hugely important, debate. It is about how much money the EU should spend, what it should spend money on and how that spending should be funded.
I should like to begin by thanking my predecessor, the noble Lord, Lord Roper, and the committee members who worked on these two inquiries. Each of our specialist sub-committees examined in detail the spending proposals within its remit, so these two short reports distil a massive amount of research and deliberation. It is indeed a privilege to introduce this timely debate on such a vital topic.
At a time of rapid and wrenching change in the European Union and the euro area, the MFF matters more than ever. The committee is following closely events in the eurozone, but short-term action to stem the current crisis must be consistent with the EU’s long-term objectives. The most crucial of these are enhanced competitiveness to support economic growth, based on a fully functioning single market, and greater value for money spent at European level.
Of course, these reports recognise other important factors in deciding where the EU’s money is spent: for example, the principles of cohesion and solidarity and the importance of environmental action. Yet these must be fitted into a budget of financial restraint and considered on an objective basis. Such an important budget should not contain fudged political deals, but should be transparent about where money is being prioritised, and why.
There are a number of difficulties with the MFF as it has been proposed. There needs to be more restraint, and we call for the next MFF to be no higher in real terms than the current one, which will end in December 2013. Equally important, however, is that this limited budget is spent wisely and directed to where it will do the most good. In our view it is disappointing that the Commission’s proposals contain largely cosmetic changes to the current distribution of spending. Economic circumstances have changed radically; so, too, should strategic budget plans.
In practical terms, the proposed MFF lacks transparency in calculation. Noble Lords will be familiar with the problem of comparing apples and pears. They will also note that there is no systematic resource accounting in it. Anyone reading the Commission’s very lengthy set of proposals, or indeed the Government’s responses, would struggle with the mixed use of real terms and current prices. The overall size of the MFF, and the way each year’s budget increases, are based on out-of-date calculations of gross national income and out-of-date growth forecasts. I submit that more up-to-date figures must be used in negotiations so that a realistic budget can be set. We call for sensible restraint based on accurate figures.
A particular difficulty in such a volatile economic climate is the length of the MFF itself. We would prefer a five-year framework, which could be made consistent or congruent with the European Parliament’s political term, offering some real democratic accountability on the strategic budget. Europe’s economic climate may look very different in five years’ time, and there is no imperative that demands a seven-year MFF.
In any case, long-term projects, such as the Galileo project, do not fit into a seven-year term either. The Commission’s proposed solution, which we oppose, has been to take large-scale or unpredictable projects such as Galileo and ITER out of the MFF entirely, calling them off-budget expenditures. Member states will still have to pay for these, just as they will pay for everything else, but they are not counted as part of the MFF when the Commission talks about the size of its budget. This is not good financial sense; the MFF must be negotiated with the same rigour as a proper business plan. Taking major spending lines off-budget will weaken accountability and reduce transparency. Instead, we would prefer to see more flexibility introduced within and between budget lines so that the MFF can offer a more agile growth agenda.
What of the MFF’s five major headings? Many members of our sub-committees are going to speak in this debate, so I will not speak for too long on the specific programmes that they scrutinised. However, I would like to say a little on the committee’s main conclusions on each heading. Heading 1, “Smart and Inclusive Growth”, is a complicated heading taking up almost half of the MFF. It contains several big programmes, such as cohesion funding, the new cross-border infrastructure programme Connecting Europe, and the new Horizon 2020 programme that will fund research and innovation.
The committee supported much of what was proposed for this heading. Cohesion funding can offer an important counterbalance to stringent austerity, which might have an undesirable impact on vital civil society programmes. It can also, if appropriately targeted, facilitate growth in weak regions, which is vital in the present climate. I am sure that the noble Lord, Lord Harrison, will speak in more depth about the work of his committee on cohesion funds.
The committee also supported efforts to boost research and innovation via Horizon 2020. If implemented correctly, this new programme offers benefits over the current structure with a single set of rules and fewer controls and audits to reduce bureaucracy in the research field. It also offers a more joined-up approach to ensuring that research progresses through the innovation cycle and into the marketplace, so that innovation does not stall. These measures will foster innovation in SMEs, which are vital for Europe’s growth.
Connecting Europe is an ambitious infrastructure programme covering energy, transport and tele- communications. Although EU-level action is important in these areas, the committee questioned whether such a large budget was really necessary for the programme. We recommend a strategic review to ensure that EU spending is secondary to market investment and that only projects that offer real added value are taken forward. I am sure that the noble Baroness, Lady Young of Hornsey, will speak to some of the other programmes in heading 1, such as ERASMUS for All and Creative Europe. However, as an introductory and personal remark, I say that these are important proposals that are sometimes overlooked owing to their smaller size. These programmes can support growth by promoting lifelong learning and supporting the creative and cultural industries in the EU.
The committee found the proposals for heading 2, “Sustainable Growth”, more unsatisfactory. The bulk of this heading is taken up by the common agricultural policy; I remind the House of my personal interest in this area, as a farmer and landowner. The Commission’s proposals reduce only slightly the proportion of the MFF being spent on the CAP. Evolutionary change offers the best path to sustained reform, but the committee strongly disagreed with the semi-status quo that we feel is on offer. The new CAP proposals include the greening of Pillar 1 payments. The committee was sceptical about whether the proposals would deliver the intended environmental benefits. Instead, we supported greater funding for Pillar 2, which will target the challenges of biodiversity and climate change. I know the noble Lord, Lord Carter of Coles, will say more on this.
Regarding heading 3, “Citizenship, freedom, security and justice”, the committee urged that the EU’s growing responsibilities under justice and home affairs should not be ignored. We disagreed with the Government’s suggestion that the budget for this heading should not rise above that over the previous financial framework. We proposed instead funding that matched 2013 expenditure in real terms. This would offer support for the EU’s increasing activity. The noble Lord, Lord Hannay of Chiswick, will have more to say on this heading, I am sure.
Heading 4, “Global Europe”, funds pre-accession instruments and many others, such as the instrument for the promotion of democracy and human rights worldwide. The noble Lord, Lord Teverson, chairman of our sub-committee on external affairs, will lead our discussion on this heading. However, overall the committee supported the funding and increased flexibility that was proposed. We also called for the European External Action Service to have a separate, ring-fenced budget to improve accountability. Perhaps the Minister will tell the Committee whether he thinks this will be possible when negotiations are finalised.
Finally, there is heading 5, “Administration”, which is often in the headlines. The Commission proposes to keep spending in the next MFF level with spending during this MFF. The Commission is also proposing revisions to the staff regulations, which dictate 65% of the spending in this heading, although they are not technically part of the MFF. The committee recognised the Commission’s efforts to bring the EU’s administrative costs more in line with those of member states. However, it agreed with the Government that more should be done to reflect the difficult decisions being taken at national level. I would be grateful if the Minister could update the House on the progress of negotiations over the staff regulations.
I should also mention another aspect of the Commission’s proposals that has been prominent in the news: the financing of the EU budget, particularly the proposals for a financial transaction tax. We concluded that no case had been made for an FTT. The proposal is unsuitable because it would fall disproportionately on a minority of member states, such as the UK, and because it cannot be linked to any genuine EU policy objectives. The committee also questioned whether a VAT-based own resource was appropriate, either as proposed, or in its current form.
The committee also objected strongly to the proposals to eliminate the UK’s permanent abatement and to replace all current correction mechanisms, of which there are many, with lump-sum payments. It cannot be overemphasised that these mechanisms are designed for a purpose: to correct unfairness in member states’ net outcomes. For the UK, such imbalance is particularly owing to the CAP. I hope the Minister will confirm that the UK is strongly opposed to these proposed changes.
Two key themes run through these reports: first, all EU spending must support growth and competitiveness. Secondly, today’s economic crisis is no excuse for ill considered or profligate spending, but reinforces the need for sound underpinnings for work aimed at recovery. The MFF is still very much under negotiation by the Council. The Danish presidency has prepared a “negotiating box” that will be carried forward by the Cypriot presidency. The first major discussion of the MFF will be at the Council meetings on 28 and 29 June. It is therefore important for the House to debate and give its input on these issues so the Minister and the Government are able to take the House’s views into account as negotiations progress. I look forward to the contributions from noble Lords. I hope the Minister will be able to update the House as much as he is able on the Government’s position regarding the Danes’ negotiating box, the alliances being forged with other member states and the way forward at the next Council meeting. I beg to move.
Lord Carter of Coles
My Lords, as chairman of the Agriculture, Fisheries, Environment and—now—Energy Sub-Committee of the EU Select Committee, I will focus my remarks on the aspects of the MFF that relate to agriculture, fisheries and the environment. Since they account for more than 40% of the EU budget, it is a significant matter. I shall also stray into the important areas of research, development and innovation. I declare an interest as a farmer and landowner.
In its consideration of the proposed MFF, the sub-committee was clear that, in the light of current economic challenges, new approaches were required. It is a matter of strong regret that the opportunity to introduce them appears to have been missed. The risk of even greater disruption to the European economy cannot be ignored. Were this to materialise, long-standing budgetary models such as the CAP could become obsolete overnight.
The proposals to reform the common agricultural policy, for which the framework is set by the MFF, fall far short of the commitment to radical change that is needed. We consider that the commissioners missed the opportunity to introduce new approaches. There is a sense that the Commission is sometimes rather like a dog watching television. It can see it but it does not quite get it. We need to see these changes brought forward to reform the whole programme. Simply, we favour a reduction in the overall agricultural budget and, within that smaller budget, a redistribution of funding away from direct payments towards environmental protection and sustainable innovation.
There are three specific areas where we see a need for greater emphasis. The first is that of agricultural research. We are pleased to note the very positive proposal to double the funding to €5.1 billion, which will make a significant difference. However, set in the context of the total Pillar 1 payments—the direct payment of €280 billion in the period—it is still relatively modest.
Secondly, we should like to see much greater emphasis on rural development, the diversification of the rural economy and a much more ambitious transfer of funds from Pillar 1 to Pillar 2. One key aspect of Pillar 2 is the funding of farm advice, which has not been done very well in England recently. On the other hand, it is comforting that other parts of the UK have done better and it will be interesting to hear what the Minister has to say about recent progress, which we hope is being made in that area.
Thirdly, the environmental impact of farming is critical. Historically, this has been very much a Pillar 2 issue and the mechanisms have been used in that context. However, it is proposed to green Pillar 1—which is, I know, a matter of great concern to many of your Lordships—by tying 30% of the direct payments to cross-compliance. We just hope that that ambition is rigorous enough in its introduction when it comes. We are also concerned that the rather centralist view—the “one size fits all” approach that is being proposed by the Commission, particularly for greening—may be better dealt with if the mechanism for these direct payments could be identified at a national or, even better, regional level. This is a matter of some debate in Brussels. The noises that we hear from there indicate that these views are held more widely. The Minister may wish to comment on this matter when he sums up.
Turning to fisheries, your Lordships will recall that the committee has been extremely robust over the years in calling for radical reform of the common fisheries policy. The new European maritime and fisheries fund does not quite do it. Discussions about these reforms are ongoing. We are clear that the new fund must support a reform policy. We are concerned that the proposed fund is too broad and insufficiently targeted. It certainly needs to be more focused on conservation objectives such as discard reduction. We want to see the objectives and the instrument narrowed so that money will not be spent on some of the things it has been in the past, such as infrastructure and fish farming, at the expense of conservation. Sadly, I have to say that in correspondence with the Government we have made little headway with them on this matter. Perhaps the Minister will update us today.
Finally, I offer some comments on the financial instruments for climate change and the environment. We see a future characterised by risk and uncertainty. There are several aspects to that: economic uncertainty, great demographic change and challenge, and of course the risks linked to climate change, which we regard as very significant. For that reason, we support the distinct sub-programme for climate change, which is an innovation of this instrument for the new MFF. We have argued that there is a strong case for an increased budget for this programme in order to address the challenges of biodiversity and climate change. Climate change is an important issue. The €0.9 billion over seven years will go some way towards meeting the challenges but we regard it as insufficient, even though it has received a marginal increase.
The consideration of climate change throughout the EU budget and the issue of mainstreaming are therefore of great importance. One example may be the use of the European Social Fund to boost training in the renewable energies area. It is in the sort of way that I hope the whole EU budget can be used as a tool to make significant steps towards a green economy. There are those who believe that one of the ways through the economic challenge that we face is to build on the expertise of the green economy and develop world-class industries in that area.
In conclusion, I return to agriculture, where I started. A central recommendation of both the reports we are debating today is to support a substantial reduction in the agricultural budget and a much greater focus on innovation. I totally agree with that. However, this is not about impoverishing farmers across Europe. We were recently told by the chairman of the European Parliament’s Agriculture Committee, Mr Paolo De Castro, that,
“agriculture is at the centre of an Innovation Union and the new global challenge”.
I think what he meant by that was that in order for Europe to prosper in a very important sector, we have to innovate and invest. We cannot work that much harder but we probably have to work a great deal smarter. The question on the final deal for the MFF is whether we are going to let innovation flourish and encourage it, or whether we are going to revert to the old EU policies of suppressing innovation and have seven further sterile years.
Lord Maclennan of Rogart
My Lords, I currently have the honour to serve on the sub-committee chaired by the noble Lord, Lord Carter of Coles, the fourth sub-committee of the Select Committee upon which I have served. However, I do not propose to follow him on the subjects that he has been talking about today. The report is very timely and we need more time to consider what an appropriate budget for the European Union should be, in very changed circumstances from those in which the Commission began its deliberations.
The current debt crisis could leave us with very different parameters. It seems somewhat artificial to contemplate total budgetary expenditure in such an uncertain situation. Priorities are expressed within the multiannual financial framework with which we can agree or disagree. Broadly, the committee is in agreement with most of the direction, although there is the very major issue of the common agricultural policy, on which I should declare an interest as a partner in a farming enterprise.
One of the conclusions referred to by our chairman, the noble Lord, Lord Boswell—and his presence and remarks are most welcome—was that the duration of the multiannual financial framework is too long. While that is an important view to express at this time, the uncertainties connected with the budget proposals are not conceivably going to be resolved before the end of this period. I strongly support the term of this framework being reduced from seven to five years.
There are other general principles to which we have drawn attention. I would mention the requirement for greater flexibility in spending, as between the different heads, with a controlled mechanism for moving funds towards the spelled-out objectives. With growth and competitiveness scarcely recognised as the principal targets of the Union within the ministerial councils—though I am happy to see that there is some movement in that direction—and against the backdrop of the debt crisis and the threat of contagion from Greece and Spain to other countries, we need to recognise that cohesion is vital. It is satisfactory that the largest head of expenditure is standing at a proposed 36.7% of the budgetary proposals. This is, however, only 1% more than in the current multiannual financial framework. One may wonder legitimately whether that shift of priorities is sufficient to deal with Europe’s situation. It is also welcome that among the categories of regions for assistance a new one has been proposed: the transition region. That is a move towards greater flexibility.
The principles of pan-European development and redistribution of finances seem not incompatible with each other. Both are legitimate and as the report indicates we should be moving gradually towards concentrating on poorer states in the long run, but if we are to avoid a fracturing of the European Union we must acknowledge that the stronger nations will have to help other nations to pull themselves up. These interests are inextricably bound together.
The position in Greece cannot be overlooked while we are considering these matters. I was very struck by an article in the Wall Street Journal at the weekend by five distinguished economists from academic backgrounds, some of them or most of them out of Greece, who advocated that Greece should be given help by the European Union to,
“achieve immediate structural reforms to radically improve the ease with which business can be conducted, and to reduce tax evasion, eradicate corruption in procurement and liberalize the labor and product markets. It must do all this while also ensuring supervision over Greece by competition authorities, improving efficiency in its justice system and health sector, and opening access to its artificially closed markets in transportation, pharmaceuticals and engineering, among others”.
It is to be hoped that with the formation of a Government in Greece, those matters will be addressed as a matter of urgency by the European Union partners. That brings me to something slightly outside of the framework of the report—that we require a forum for considering the debt crisis and matters such as the bank situation that does not simply involve the repetitive meeting of the Council, but continues and sits until these critical matters have been resolved. The process of Heads of Government getting together and lecturing each other from the sidelines or indicating to their domestic communities what they are not prepared to have makes diplomatic negotiation much more difficult. Consequently, I hope that our Government might contemplate suggesting that the eurozone crisis merits a continuity of consideration until resolved, and that we Britons should be involved in that process although not in the eurozone, because the Government have recognised that we are crucially affected by it and have the power to influence the outcomes through not only the decision-making process of the Union but the fact of our being a relatively strong country. We have to alter our institutional approach if we are going to deliver the sort of outcomes required.
I turn, briefly, to some of the particular headings of expenditure referred to in the MFF. On research, the 46% increase over present funding proposed of €80 billion is extremely welcome, not least because it will enable us, if we persist effectively, to improve capacity and the excellence of our work to enable us to increase. On education, the 70% increase proposed from the current MFF to €19 billion is also highly appropriate and crucial for long-term growth. I was distressed to see that the Minister described that increase as “unrealistic”.
Personal enthusiasm for the arts makes me welcome the indication that we are to see a 37% increase over the separate existing programmes for creative industries. As we know in this country, they too stimulate growth. Expenditure to acquaint our citizens with what is being done in the European Union is also of great importance, since there is a lack of understanding at large as to the beneficial effects that the EU can have on our place in the global economy.
There is another omission that is the responsibility of the Commission and which needs to be rectified in further meetings: how much of the budget is to be spent on the new European External Action Service and should it be ring-fenced? It would be interesting to know the Government’s view of that.
I conclude with a reference to a recommendation on the European Court from my former sub-committee, which was chaired by the noble Lord, Lord Bowness. Our view, which the whole committee accepted, is that, because of the greatly increased volume of work being done by the European Court of Justice, we cannot cap at the present level or reduce in any way the funding that is required to enable the Court to tackle these matters. It would have a devastating effect on the operation of the Union if we suffered the sort of delays in obtaining justice that are common in the European Court of Human Rights.
This is an important report and I hope that it will be noticed. I do not have much doubt that it will be. I have heard members of the European Commission referring to House of Lords reports as being among the best reports from the most distinguished think tanks of which they aware in Europe.
Lord Hannay of Chiswick
My Lords, so far the negotiations over the European Union’s multiannual financial framework for the period after 2013 have been pursued in what can described only as a pretty desultory manner. However, that period of treading water is now necessarily coming to an end as the deadline to complete negotiations gets nearer. That means that the report that we are debating today and the Government’s response to it are particularly timely. The challenges ahead are formidable and the timing of the denouement of these negotiations could hardly be worse, as the eurozone crisis comes to a head.
The new framework will need to be fully consistent with the objectives of fiscal consolidation to which the member states have collectively subscribed, while seeking to shift EU spending towards value-added programmes that will contribute to an overall European growth strategy such as is likely to be endorsed at next week’s meeting of the European Council. The tensions between these two sets of objectives are pretty obvious and we already see them being played out in the much larger context of individual member states’ spending plans and priorities. Total concentration on one of these objectives at the expense of the other will lead only to deadlock at the EU level and will be neither politically nor economically viable.
Following the very welcome introduction given by our chairman, the noble Lord, Lord Boswell, I will concentrate the main body of my remarks on the proposals for the EU’s future expenditure in the fields of justice and home affairs—it is dealt with in a section of our report that was contributed by the sub-committee that I chaired—before making a few more general comments. On JHA spending, two salient points stand out. Here, the noble Lord, Lord Bowness, and I speak across a divide that is not a real divide. The first is that it is a small proportion of overall EU spending, some 0.9% of the total, if one takes the figures from the 2012 budget, the same 0.9% if one uses the figures in the Commission’s 2013 budget, which we all agree are excessive, and yet again some 0.9% if one follows the Commission’s proposals for the next framework period. It is not even faintly comparable in any way with the much larger blocks of spending on agriculture, which the noble Lord, Lord Carter, has spoken about, and the structural funds.
The second salient point is that JHA spending has nevertheless been rising pretty rapidly in recent years—from €354 million in 2007 to €1.4 billion in the 2012 budget. However, at least in the view of my committee, this rise is attributable in large part not to slack control but rather to decisions by member states faced by international challenges—such as drug trafficking, serious organised crime, cybercrime and illegal immigration—to do much more collectively than in the past through EU instruments and institutions to combat these challenges. This has led to the establishment of such bodies as Europol and FRONTEX. The strengthening of the latter was identified in the Government’s 2010 national security strategy as one of our national priorities. Any reduction in real terms to JHA spending post 2013 would cut into activities that relate to our national security. For that reason, we support the application to the JHA chapter of the overall guideline that the Government have agreed with a number of like-minded member states; namely, that the whole of post-2013 spending remains steady in real terms. However, we would not support a freeze in nominal terms—in effect, a quite sharp reduction—which has, at times, appeared to be the Government’s objective. It would be helpful if the Minister could confirm that it is the overall guideline of a post-2013 freeze in real terms that will be our national objective both generally and so far as JHA spending is concerned.
There are also some more detailed concerns, on one of which we have conducted several rounds of correspondence with the Home Office. It relates to the Commission’s intention to propose the establishment of a cybercrime centre at Europol. The committee and the Government are at one in supporting this proposal, which represents a welcome shift in the Commission’s thinking away from any idea of setting up a new and separate agency, but we believe that the Home Office’s position that a new cybercrime centre at Europol should be financed within Europol’s existing budget is neither viable nor negotiable. Will the Minister say which part of Europol’s existing workload, all of which appears to be of real value to this country, we propose should be cut? In any case, it surely does not make sense to take such a Procrustean approach to individual budget lines. Should we not be working to get more resources for a high priority, such as Europol and a cybercrime centre, from other parts of the budget? That has, after all, been the approach of successive Governments over many years. Going away from it now is only too likely to alienate the other like-minded member states with which we need to work in harmony if we are to get a good outcome. Perhaps the Minister could have another look at this matter. I do not ask for a response on such a detailed matter, but I would be grateful if he would take another look at it.
Turning back to more general views, I shall mention three: the need to work closely with a group of like-minded states that support a freeze in real terms; the duration of the new framework; and the rebate. No doubt there will be tensions within the group of like-minded states about the detailed application of the real-terms freeze. Some will want more of this and less of that than we do. The attitude of the new French Government will also be important and could be problematic, particularly on matters relating to agriculture, but it is important that we approach our dealings with these member states with which we have agreed a broad guideline in a spirit of give and take and with a willingness to compromise, otherwise we will soon enough find that the unity of the group will dissolve, and if that happens we will be a good deal less likely to secure our negotiating objectives.
On the question of the duration of the post-2013 framework, I merely echo the points made by the noble Lords, Lord Boswell and Lord Maclennan. The Select Committee has consistently opposed a seven-year period or even—as the Commission suggested one year—a 10-year period and expressed a clear preference for a five-year period, which is the actual treaty obligation. We took that view when the last framework was negotiated. If we had been heeded then, we might be in a better position now. However, we were not. The arguments for a five-year period seem to us even stronger now than before. No member state would dream at this stage and conjuncture of settling expenditure trends so far ahead as seven years; after all, our own Government do not go beyond three years. Nor would it be likely to fix a duration of the mandate to be so different from that of the codecider, which, in the EU’s case, is the European Parliament. I hope the Government would see the logic of a five-year settlement and move in that direction if others favour it.
Finally, there is the rebate. No doubt we shall find ourselves on our own on this issue, as we always do. This is, unfortunately, a zero-sum game and there is nothing we can do to change that. However, in defending the continuance of the rebate as a residual, to be based on actual budget outcomes—on which the committee’s report gives the Government full support—we need to put forward as persuasive a case as we can. There are not many signs of that being so at present. The fact that the Commission has put forward a lump-sum rebate approach would seem to demonstrate that it has forgotten the lessons of the period between 1980 and 1984, when such an approach was tried, with results that can only be described as aberrant. The fact that the Commission’s director-general for the budget could trot out to our committee the old chestnut about the rebate representing a “juste retour” approach, and argue that it does not reflect the greater relative prosperity of the UK and the EU of today compared with that of 1984, would indicate that he is lamentably ignorant of the extent to which the UK’s net contribution after the rebate has increased in recent years.
All this points to an urgent need to explain to all concerned the realities of the situation and the deficiencies of any ex-ante, lump-sum approach. The Minister knows very well that we are giving him full support on this issue. However, we have to be a bit more persuasive and take these arguments seriously rather than simply say: “It needs unanimity to change it, so get lost”. That may be the underlying reality of the situation, but if we wish to keep our alliance together, we need to be a bit fuller in our explanations of why we believe it to be justified.
As a final point, no Government have an easy hand to play in these complex but important negotiations, least of all our own Government. The unanimity requirement for deciding on a multiannual financial framework provides us with considerable leverage but is also a temptation to an unreasonably rigid approach. If we are to hold together the strong alliance the Prime Minister has constructed around a fiscally responsible outcome, and avoid undermining the EU budget’s contribution to any EU-wide growth strategy that is agreed next week, we will need to negotiate with flexibility as well as determination.
Lord Bowness
My Lords, I thank the noble Lord, Lord Boswell of Aynho, for his comprehensive introduction of these two reports. It is an opportunity for those of us who are members of the European Union Committee to wish him well, in a public forum, as the new chairman of the committee. No doubt he will lead the committee as successfully as did his distinguished predecessor, the noble Lord, Lord Roper, who steered the committee through the production of these reports. As chairman of the then Justice and Institutions Sub-Committee, I will make four short points which it made as part of its contribution to these reports, and which despite the changing circumstances remain relevant.
First, we agree that in this area spending for the period 2014 to 2020 should be broadly consistent with the levels of expenditure planned for the end of the current multiannual financial framework. That is constant in real terms. Citizenship, freedom and security make up less than 2% of the total, but for a five-year period it is difficult to judge what the right levels are. The current five-year programme for the area of freedom, security and justice concludes in 2014 and some agencies such as Eurojust and the Fundamental Rights Agency are being given additional responsibilities.
Secondly, because of the importance of this area of activity, savings should be sought elsewhere in the budget if the ceiling on justice and citizenship is to be raised beyond that of 2013.
Thirdly, if there is a choice between justice and citizenship headings, justice should have the priority.
Fourthly, what gives the sub-committee the greatest concern, to which my noble friend Lord Maclennan has already referred, are the resources available to the Court of Justice of the European Union, comprising the European Court of Justice, the General Court—formerly the Court of First Instance—and the European Union Civil Service Tribunal. As the Select Committee’s report into the workings of the Court noted, the workload is increasing and additional resources are required if delays are not to build up. We cannot countenance a situation similar to that which prevails in the European Court of Human Rights, where the backlog runs to over 100,000 cases. The cost of the Court comes from the administration budget. It is less than a quarter of 1% of the EU’s budget and less than 5% of expenditure on all the institutions of the Union. I am normally cautious about suggesting that budgetary problems can be solved by administrative savings, but in this instance the amounts are so modest even I believe that it may be possible.
The sub-committee’s report called for an increase in the number of judges in the General Court, something which may be achieved without treaty change. Latterly, we have supported the suggested use of recently retired judges to assist the civil service tribunal as a cost-effective way of dealing with what may be a temporary need. The court is seeking approval for changes to its working practices, which we support, but which will not in the light of our inquiry of itself solve the problem.
In this area of justice, if we are to have a full and free single market with all that means in terms of inter-member state trade, freedom of movement and European Union citizens living, working and moving in a variety of member states, we must ensure that there are certain common standards and procedures. This is not to threaten our legal system, but to ensure that British citizens enjoy elsewhere in the Union the protection and freedoms to which they are accustomed here. In many ways it is easier in the area of criminal justice, where the Commission has taken a series of incremental steps. It is more difficult in the area of civil justice, where proposals such as those on wills and succession, and matrimonial, property and contract law, create real difficulties for the countries with common-law traditions. To those who may be tempted to say that we should have nothing to do with any of it, I recall that my right honourable friend the Lord Chancellor expressed the view to the sub-committee:
“Assuming that the general objective of the proposal is one with which we are perfectly comfortable, I would prefer to opt in because I think that it gives a greater role and influence at an early stage of the subsequent negotiations and you have a vote in the course of any decisions on drafting, so you can be in a better position to remedy any queries you have about it”.
In conclusion, I hope that Her Majesty’s Government support those elements in the multiannual financial framework which support European added value, and that this is not governed by a sometimes apparent hostility to all expenditure in the European Union and a current desire to distance ourselves from our partners and the problems in Greece.
My noble friend Lord Maclennan referred to the current uncertainty. In these uncertain days we cannot know what expenditure not yet envisaged may arise. That is highlighted in an article by Bronwen Maddox in today’s Times, which gives succinct and graphic examples of some of the political dangers of which we should all be aware and which I hope Her Majesty’s Government will take into account.
In conclusion, I wish to quote briefly from the article in the Times by Bronwen Maddox. It states:
“As the EU struggles to work out how much it is prepared to pay to keep Greece in the currency bloc, or even the Union, it should take into account how Iran (and Russia) are scanning Europe’s troubled southeast in search of new allies. It is easy in Britain, where diplomacy is infused with a sense of unambiguous borders, to forget how allegiances across Europe’s eastern corner have always been twisted from many strands”.
She concluded:
“The EU’s expansion eastwards and southwards has been one of the transforming gestures of recent history, embracing countries that appeared to want to define themselves by western ideals of liberal democracy. Clearly, the creation of a single currency among very different economies was folly; Greece played to that generous romance of enlargement, extracting all the capital imaginable from its claim to be the ‘birthplace of democracy’.
All that said, the expansion of the EU carried huge symbolic value. It said to those countries, and the world: ‘They are on our side, they share the same values’. If Greece falls out of the euro, and if its links with the EU are strained—or break—it would be careless to overlook the possible consequences. A country that straddles the old fault lines of Europe might find reason to look east—and leaders in Tehran, for a start, would try to give it every cause to do so”.
Lord Harrison
My Lords, it is always a great pleasure to follow the noble Lord, Lord Bowness, and to do so here in the Moses Room as we plot a path to the promised land of growth, jobs and prosperity in the European Union through the agency of the reports before us today on the European Union financial framework 2014-20. I am very grateful to our new chairman for introducing it so expeditiously. We wish him well in his new tasks and duties.
The Sub-Committee on Economic and Financial Affairs, which I chair, focused in particular on the issues on cohesion policy set out in Chapter 3 of the report. To aid our scrutiny of the various cohesion fund proposals, and in addition to the work undertaken by the Select Committee as a whole, the sub-committee took evidence in December from the expert Professor John Bachtler, Professor of European Policy Studies at the University of Strathclyde. We are enormously grateful to him for his assistance.
Cohesion policy encompasses European Union action to address economic and social imbalances and to help less favoured regions to compete within the vital single market. Cohesion funds form a substantial proportion of the MFF proposals: €336 billion, or 36.7% of the total, compared to 35.7% in the current MFF. Spending on cohesion policy is currently supported through three structural funds. The European regional development fund—ERDF—finances direct aid for investment in companies, infrastructure, financial instruments and technical assistance measures. The European Social Fund finances projects in the labour market that improve skills, social integration and access to employment opportunities. Both these funds are allocated on a regional basis. The cohesion fund finances developments in transport networks, environmental projects and energy and transport projects with environmental benefits, and is allocated at a national level.
The overall scale is determined by two factors: objectives and eligibility. In terms of objectives, the new cohesion policy architecture retains the overarching objectives of convergence, competitiveness and European territorial co-operation. However, the Commission has proposed a change to eligibility to introduce transition regions as an intermediate category between more developed—competitiveness—regions and less developed—convergence—regions. The cohesion fund will continue to support member states with a gross national income of less than 90% of the EU 27 average. As originally drafted, the Commission proposal was that the ERDF would be available to all three categories, but transition and more developed regions would be required to focus 80% of their ERDF funds on certain areas such as renewable energy and small business competitiveness and innovation. The ESF would be available to all three categories of regions, and the Commission proposed that at least 25% of the overall cohesion funding must be committed to it, with more in more developed and transition regions. In each member state, the Commission proposed that at least 20% of the total ESF resources should be allocated to promoting social inclusion and combating poverty. I am well aware that there has been some progress in negotiations in relation to these requirements, so perhaps the Minister would be able to provide us with an update on these discussions.
There are two divergent views regarding cohesion policy’s aims. Some favour a pan-European development programme, while others see it as an explicitly redistributive tool. The transition regions proposal would allow regions in richer member states to remain eligible for structural funds including, in the UK, such regions as Cornwall, Devon, South Yorkshire and Merseyside. I have a past strong interest as Member of the European Parliament for the second largest authority in Merseyside and I invite colleagues to see the transformation that those European funds have effected in the Merseyside region.
The Government have argued that cohesion funding should be restricted to poorer member states after 2020. However, the Government accept that, for 2014-20, all regions should be receiving funding. The aim of EU cohesion policy is,
“reducing disparities between the levels of development of the various regions and the backwardness of the least favoured regions”.
The committee concluded that the new transition region should be supported, provided that it allowed for a more appropriate targeting of funding. Indeed, we found that there was a strong argument for cohesion policy being targeted at poorer member states and for it to operate at a pan-European level. Our conclusion was that, while the European Social Fund is of benefit throughout the Union, other funds, such as the European regional development fund, should be further targeted at poorer member states with a view to withdrawing it from better-off member states in the long term.
The Commission has been clear that it views cohesion policy as a primary vehicle for achieving the Europe 2020 objectives, although our previous report on the EU financial framework from 2014 noted the difficulty in turning cohesion policy into an all-purpose instrument for delivering Europe 2020. Professor Bachtler told us that there was a “tension” between treating cohesion policy as a “delivery agent” of Europe 2020 and its “traditional mission” of “reducing regional disparities”. However, the Government were of the view that targeting Europe 2020 would still mean progress in reducing regional disparities. The committee recognised the importance of Europe 2020 objectives, many of which dovetail with the traditional mission of cohesion policy. However, we stressed that cohesion policy is not merely a delivery tool for Europe 2020 and warned against its core aim being undermined by an unremitting focus on the Europe 2020 agenda. We concluded that the distinct identity and fundamental objective of cohesion, as enshrined in Article 158 of the Lisbon treaty, must be safeguarded. We also stressed that, as an expression of EU solidarity, cohesion policy is one of the most important elements of the MFF in improving public awareness of European Union action.
One of the key questions that we considered was whether, in the current economic climate, a reduction in cohesion funding would be justified, or whether spending on cohesion policy should be encouraged because of its potential to boost economic growth. Professor Bachtler emphasised the importance of cohesion policy at a time of austerity, when national budgets for regional development might be cut back. Although the Commission was keen to retain cohesion as a well funded policy area—albeit that funding had been held level in cash terms—the Government argued that the cohesion budget “should fall significantly” from the proposed levels.
The committee concluded that the economic context had strengthened its belief that cohesion policy should play a more defined role in helping member states in financial difficulties to address structural weaknesses and competitiveness challenges and that it can act as a necessary counterbalance to the effects of austerity measures. We supported the overall envelope proposed for cohesion policy, since it has an important role to play in improving growth and, in the context of a rigid seven-year framework, it is vital that funding remains available to meet changes in the economic climate.
Cohesion policy has been criticised over the effectiveness of spending and for the complexity of its management and implementation. The Commission has sought to address this through what Professor Bachtler described as,
“more concentration, more co-ordination and greater results orientation”.
The Commission has proposed a common strategic framework to improve synergies between the various funds through thematic concentration—the targeting of funds on specific chosen objectives. We agree that the Commission’s proposals represent a much needed attempt to improve the impact and effectiveness of European Union funds and to encourage a more strategic framework. We also support the proposed common strategic framework, although we are aware, from recent correspondence with the Government, of concerns over the precise form that it will take. It would be useful if the Minister provided an update on these discussions. We also recognise the case for thematic concentration on a smaller number of priorities, but remain to be convinced that the Commission’s proposals ensure sufficient flexibility for regions and local authorities to focus investment on their own development needs. I am aware that amendments have been made to the provisions on thematic concentration. Is the Minister content that these provide the necessary flexibility?
The Commission also proposes conditionalities that would place more restrictions on funding allocations. The Government have expressed support for ex ante conditionality, such as the need for compliance with EU regulations prior to funding. The committee endorsed the Commission’s proposals for conditionalities, although we had concerns about the appropriateness of macroeconomic conditionality tools, since withdrawing EU funding from an ailing economy might in some circumstances make matters worse. What is the Minister’s response to these concerns, particularly in the context of the continuing euro area crisis?
The Commission also proposes the introduction of a performance reserve, whereby 5% of the cohesion budget will be set aside and allocated to member states and regions whose programmes have met their targets in a mid-term review. The Government expressed concerns as to whether such a reserve would reward wealthier member states at the expense of poorer ones. To what extent does the Minister believe that the Commission has addressed the Government’s concerns? For our part, we expressed the view that a performance reserve could be beneficial if implemented correctly. However, we found that the proposed 2019 date for the allocation of funding would be too late to have any meaningful impact and we called for a final review and for the allocation of funds to be brought forward. In that respect, I also agree with colleagues who have already spoken about the proposed seven-year period and the five-year period that the committee has supported. Is it the Minister’s understanding that there will be any kind of break within the seven-year period to make a reassessment of the needs of the European Union—for instance, if we needed to instil more growth at that stage, as Europe comes out of its current doldrums?
The committee also heard from the Federal Trust director, Brendan Donnelly, about the wholesale examination of the budget and zero-based budgeting. I know that there has been some sympathy in the Government about this. Mr Donnelly suggested that that might not lead to an increase in the overall budget but might even lead to a decrease. I invite the Minister to talk about that. If you had such a budget, could you then concentrate better on ensuring European Union added value as an element of that?
I ask the Minister about something that has troubled the committee when we have been looking at the budgets so far provided, as we do on an annual basis, in the 2007-13 period. Repeatedly, the Government talk about their aspiration and ambition to make savings in those budgets as they develop. It would be good to have some evidence from 2010-11, for instance, of where savings were actually made in the European budget as a result of the Government pressing the other 26 member states and ensuring that they had allies to do so.
Finally, I invite the Minister to say a little more, within the context of this budget, about how we help small businesses. There are real opportunities to get growth again through small businesses. Will he understand that the essence of helping small businesses is the ambition, which has been expressed by this Government but not always carried out, of ensuring that the single market is developed, completed and made active for those smallest of businesses that wish to ply their wares and services within the European Union as a whole?
Lord Dykes
My Lords, my response to the melodious and Parnassian beauty of the descriptions of the noble Lord, Lord Harrison, today is to express admiration for his work in the sub-committee, particularly in the area that he was talking about, and to thank him very much. It removes from me the need to go into some of those areas myself, which I shall observe with some enthusiasm and try to be brief. Indeed, unlike previous speakers, I do not have a written text today. If anybody has heard this terrible story before, I apologise in advance. There was a Yorkshire vicar in the pulpit on a Sunday—I will try the accent, but do not laugh—who said, “I am afraid I do not have my usual written sermon today, because I have been so busy during the week. There were two scout camps and the guides were going away as well. I had three funerals to do and four weddings to prepare, so I don’t have one of my usual written sermons that you enjoy so much. I am relying exclusively on divine inspiration this evening, but next week you will get a proper sermon again”.
In that spirit, I will focus on only one or two things. First, I thank the noble Lord, Lord Boswell, for his report as the new chairman and wish him well for the future. This is an important exercise. One can say without complacency that the Commission’s long-term planning for these budgetary constructions worked pretty well in the previous period as well, with some ragged bits and pieces and the continuing British anxiety about the rebate. Whether the rebate was originally intended to last for ever I am not sure. I do not think that that was the case. It is interesting to reflect that, if it now involves everybody in a general recasting of the GNI component of the structures, that may be a totally different thing that the Commission can propose. I hope that it would be accepted.
There is a very small amount of money in this European Union budget, despite the recent years’ growth, with €150 billion as the first figure for the new period and €140 billion at the moment, or thereabouts. The actual expenditure is always less than the amounts allocated, year in, year out. So it is quite a virtuous budget with no debts and no borrowings; the receipts have to equal the payments, by law, and there is no exception to that. It is a very good example which certain states in the United States should look at closely. However, it belongs to the whole Union and is a very tiny mechanism in comparison with what the national member Governments do, and we have to be realistic about that. The timing now could mean that the considerations of long-term planning for a five or seven-year period in future can be irrelevant to the immediate crisis in the eurozone and the fact that there is a developing deflation—some would say a quasi-slump—in a good number of the member states, including the ominous signs in Britain after our recent double-dip recession. No one knows exactly—predictions are always difficult, particularly when they concern the future, as one sage observed—how this will pan out.
In the mean time, the budget has been improved in recent years, and that will be built on in future. I believe that about 80% of the outlays are shared with the administration of the member states, so there is a low level of mistakes, according to the Court of Auditors, in comparison with the millions of transactions every week, month and day. The amount of fraud is minuscule, as we know. So the general support for the budget, philosophically and in this Committee’s discussion, is reflected by the speakers, who feel that it is a good rather than a bad thing to have, although it is very small indeed. Now it has a greater orientation towards long-term investment and cohesion, perhaps bringing the EIB not into the budget itself but into some of the long-term outlays that will be needed for infrastructure spending and improvement. Then the trans-European networks are developing, along with other aspects of transport policy, which allows us to have a much better future. I hope that it will be successfully negotiated by the member states and the Commission.
I wish to comment briefly on what was enunciated by the section in the original report up to 2014 on page 23, from paragraph 57 onwards. For example, paragraph 58 says:
“Greater use of EIB financing and higher contributions from the private sector are desirable”,
because the Commission, with the public money available to it from the member states and its own resources, cannot do much more in comparison with what national Governments will do in future to deal with their own economic crises. The particular national economic crises in the member states will probably not spare many, although Austria and Sweden may be examples. Many member states will be confronted by these problems, so we must take great care in future to make sure that we succeed in avoiding the slump over the whole European Union that is threatening to develop.
It is interesting to see, at the beginning of the summary of the second report, at the end of the second paragraph, the admonition that,
“withdrawing funds from an ailing economy only risks making matters worse”.
That is the general proposition that may apply to more than just one or two member states.
If the Government can in future—and I wish the Minister well with these complicated negotiations—link the construction of this new period for the MFF to the immediate medium-term problems facing member states, that would be good indeed. In a phantasmagorical moment, one could imagine that if the slump was allowed to develop and continue because austerity programmes were not relaxed at all, as Governments endlessly waited for demand somehow to pick up automatically of its own accord without the necessary injections of new long-term capital, the EU budget might look like the combination of a kind of Tennessee Valley Authority and one or two other of those special measures that Roosevelt brought in to deal with the terrible recession and slump in the United States. It is in that spirit that I hope that this exercise is successful when negotiations are concluded, and I hope that the Minister will reassure us that national Governments are alert to and aware of the dangers that we all face.
Baroness Young of Hornsey
My Lords, I will cover some of the areas that were formerly allocated to what was Sub-Committee G, dealing with social policies and consumer protection. I start by saying that I very much welcome the opening remarks of the noble Lord, Lord Boswell, especially those in support of ERASMUS and the creative industries. I start with some comments about the ERASMUS section and will quote again the comment from the Minister that was referred to by the noble Lord, Lord Maclennan.
With respect to the ERASMUS for All proposal, which we examined in our inquiry into and report on the modernisation of higher education in Europe, we not only welcomed the Commission’s efforts to streamline and simplify the numerous existing programmes in the area but considered that, as lifelong learning is key for long-term growth, this programme merits a larger proportion of funding under the next MFF. Although the Minister told us that the Commission’s preferred funding increase was completely unrealistic, most of our other witnesses disagreed.
We also noted that work and study placements abroad produce obvious benefits for individuals in terms of increased confidence, language skills and employability. We considered that the UK’s prevailing monoglot culture, among other factors, prevented its students participating in ERASMUS to the same extent as those of other member states. Therefore, additional EU funding for such placements should be welcomed to support increased UK participation in ERASMUS and other mobility programmes. We also welcomed the proposed sub-programme under ERASMUS for All, which will introduce a dedicated funding stream for sport for the first time, which is in line with another of our past reports, concerning the development of grass-roots sport.
On the subject of Creative Europe, again I declare an interest as somebody who works extensively in the cultural and creative industries and support some of the comments of the noble Lord, Lord Maclennan. We considered here that the cultural and creative sector’s contribution to the EU is fundamentally important and heard much compelling evidence that the increased budget proposed by the Commission for the Creative Europe programme would stimulate job creation and growth in line with the Europe 2020 strategy.
In the context of domestic funding cuts for these sectors and UK organisations’ obvious capacity for attracting EU funding of this nature, we call for the Government to support a proportionately larger budget allocation to this area, which represents only a very small proportion of the total MFF. One component part of Creative Europe is the media programme, which provides funding for television and film productions across the EU and beyond. I am sure some of your Lordships will have enjoyed the fruits of this programme, such as “The Bridge”, a very compelling Danish-Swedish drama series that was broadcast on BBC Four and which was funded by the media programme.
I turn now to the cohesion policy, an area that was referred to by a number of noble Lords earlier in this debate, and specifically to the European Social Fund. Both reports being debated today recommend that although the ERDF should be targeted at the poorest member states, the European Social Fund is of benefit throughout the European Union. As we identified in a report on the ESF, and as was clear from our project visits in various parts of London, poverty and unemployment, and the need for new skills, do not respect national boundaries.
The European Social Fund can also make a valuable contribution to realising the Europe 2020 goals, including that of greening the economy, a point that was made earlier by the noble Lord, Lord Carter. It can do so most effectively by working strategically with the other structural funds, including the rural development and fisheries funds. For example, the fisheries fund could pay for fishermen to leave the industry and the ESF could pay for retraining and diversification. We therefore support the Commission’s proposed common strategic framework, whereby member states must plan the deployment of all these funds under one strategic umbrella.
I would like to draw on the lessons of a seminar on the ESF last December, which was one of a number of meetings we held with various stakeholders in the year. Words that kept cropping up at that meeting were “partnership”, “flexibility”, “simplification” and “local”. Of those, flexibility—the ability to respond to local needs—was crucial for those participating. It is where the Commission’s proposed thematic concentration, running through the various structural funds, may not work on the ground. We are therefore delighted that its importance is reflected in the most recent report under debate today. We also agree with the report’s support for the overall envelope proposed for cohesion funding, and argue that the ESF has a particular role within that envelope as a fund that can make a real contribution to meet the challenges of the current economic climate.
Lord Williamson of Horton
My Lords, I declare an interest, in that I worked on European affairs in the United Kingdom public service and in the European Commission, and I have pensions from my work. In this debate, I have the role of orphan Annie because I am not a member of the European Union Committee or of any of its sub-committees; perhaps I am even objective.
This comprehensive and high-quality report from the House’s EU Committee is at the heart of our policy towards the European Union, and I thank the committee for it. Subject of course to the economic future of the eurozone, there is surely nothing more important than the establishment of a seven-year budget from 2014 to 2020—perhaps it should be a five-year one—and the priorities for EU action over that period. The committee is right to state at the outset that the multiannual financial framework—the MFF—
“will dictate much of what the EU does until the end of this decade”.
Here in the Moses Room, we are in the big time.
I shall comment on some but not all of the 73 conclusions and recommendations of the committee; that number alone demonstrates the breadth and importance of the subject, and a similar conclusion can be drawn from the 81 Commission proposals for legislation and communications listed in appendix 5. Before I turn to some of those points, I would like to express general principles that in my view should be central to the Government’s approach to the negotiation of the MFF, and I attach great importance to them.
First, the Commission’s budget proposals show some restraint. Total payment appropriations under the current seven-year MFF are 0.16% of gross national income, below the ceiling that sets a cap on the EU’s own resources. The new proposals for 2014-20 would cost 1% of estimated gross national income and leave a margin of 0.23% below the ceiling. I recognise of course that some expenditure—principally the European Development Fund for the benefit of African, Caribbean and Pacific countries—is off-budget, and all off-budget expenditure requires careful scrutiny.
However, while the Commission shows some restraint, I strongly believe that the Government are right to stress the importance of savings and to press for them. After all, this is not an abstract exercise. We are dealing with public expenditure right up to 2020. Recent events have demonstrated that a major cause of the economic crisis in Europe, apart from incredibly bad judgment of risk in many banks, is the too-high level of public expenditure and the extreme difficulty for some member states to finance it. Some 86% of current EU own resources are derived directly from GNI-based and VAT-based resources. Restraint on public expenditure and a rigorous approach to justifying it is a solemn duty on Governments and is in the EU’s interest. Furthermore, in assessing the priorities, investment and employment-creating expenditure—for example, on infrastructure—should have some priority in the EU’s overall interest.
To a considerable degree, our national interest in this seven-year EU budget coincides with that of the EU as a whole. We want savings and strict attention to priorities, both to ensure as far as possible that particular items of expenditure are disproportionately favourable to the UK and because our net contribution has recently risen quite strongly. It is well known that I am rather proud of the UK rebate—I played a small part in negotiating it—which has so far delivered about £68 billion to the UK economy. It is an intrinsic part of the EU budget system and, being subject to unanimity, cannot be changed without our agreement. However, the UK Government agreed to exclude non-agricultural expenditure in new member states from the calculation and this has led to an increase in our net contribution from £3 billion in 2008-09 to £9.2 billion in 2010-11. A hard-headed approach to this change means a tougher negotiating stance on the total EU budget.
On our priorities, I begin with cohesion policy, which is heading 1 in the MFF and is supported by the European regional development fund, the Social Fund and the cohesion fund. In financial terms, this is, as noble Lords have said, an important part of the MFF. In the new proposals, it is 36.7% of the total and is comparable to expenditure on agriculture, food and environmental policy. Evidently, the key issue is to identify the European added value. I favoured regional development when I had some responsibility for European policy, and I still do, but we have to balance it with available public finance. The analysis by the committee is good and I agree with much of it. In particular, I favour the transitional region category, noting on a personal level that it would apply to Devon and Cornwall. It would be sensible to have a performance reserve and some ex ante, but not too bureaucratic, conditionality. Like the Government, I do not favour macroeconomic conditionality.
Agriculture, the food supply and the environment are subjects that I used to know a lot about. Of course, the old CAP has long since vanished. It was a market-based policy with little or no direct payments to farmers. The support prices were set at too-high levels leading to high expenditure on disposing of public intervention stocks and on export subsidies called “refunds”. We have replaced it with a policy that is largely based on direct payments to farmers, which is where the budget costs arise. The question we now have to consider is whether the objective of a viable agricultural industry and a secure and diverse food supply for our people can be obtained with a slightly lower level of direct payments. Some environmental conditionality is already present, which is good. I am not in favour of the Commission’s proposal to add further environmental conditions to 30% of direct payments, which would certainly be more complex and would have doubtful added value. I support the committee’s view that some transfer of resources from Pillar 1 to Pillar 2—that is to say innovation, research and knowledge transfer—should be an objective.
Finally, in view of the time constraints, I will make three bullet points. First, the European Development Fund, which is the biggest element off-budget, should be brought within the multilateral financial framework and, separately, the cost of the European External Action Service should be identified and ring-fenced. Secondly, the case for an EU-wide financial transaction tax has not been made. The last thing we want is more taxes. Thirdly, the committee states that,
“a VAT-based own resource is not appropriate for funding the EU budget”,
and that it might be removed entirely. It also states:
“This need not necessarily prejudice the UK abatement, although we acknowledge that determining a new base for calculating the abatement might require a difficult negotiation”.
The committee’s overall report is truly excellent, but this point seems a trifle naive. I am with the Government when they are quoted in paragraph 233 as having fundamental objections to changes to the own-resource system, notably because the Commission’s proposal,
“would remove the permanency of the UK’s current abatement mechanism”.
The new own-resource decision would require unanimity, so I say to the Government: stick to your fundamental objections.
There is only one ministerial statement that I currently always carry in my wallet. It is a statement by the noble Lord, Lord Sassoon:
“We are very concerned about those growing contributions, and we are working hard to moderate them”.—[Official Report, 8/11/10; col. 1.]
Lord Giddens
My Lords, I congratulate noble Lords involved in producing these two reports. I also congratulate the noble Lord, Lord Boswell, on his new role and wish him well.
Apropos of nothing, I note that previous EU debates in which I have spoken have tended to be very male dominated. That is also true of this debate. For some reason we have 14 noble Lords speaking but only one noble Baroness; why this should be so, I am not clear.
The EU today is a strange contradictory entity. On the one hand, it has its traditional structure still functioning with long time horizons and with the Commission as its policy engine—the background, if you like, to these two reports. In this version, the EU moves in a closeted, bureaucratic way. I shall call this EU1. On the other hand, there is the EU, dominated by the eurozone, as a firefighting mechanism enmeshed in almost daily crises and having to make rapid responses to them. I shall call this EU2.
As we know, EU2 has a de facto president, Angela Merkel, even though she has no formal legitimacy. In EU2 the Commission, and even to some extent the Council, have receded into the background. They are not arenas where significant decisions are initiated, just confirmed. In EU2 vast amounts of money are being channelled around Europe to shore up states and to protect banks. These sums of money are massively greater than the orthodox EU budget. Far from the,
“smart, sustainable and inclusive growth”,
talked about in the Europe 2020 literature, in EU2—in other words, in the real Europe of the moment as opposed to the paper Europe of plans for the future—there is no growth at all. Europe is essentially mainly mired in recession.
The question at the moment, I suggest, is how to bring these two Europes together. The second of the two reports is much more conscious of this fundamental issue than is the first and reflects the essentially continuing nature of the crisis between the time at which the first and second reports were produced. The second report rightly observes that,
“the euro area crisis has not stimulated … radical thinking”,
about the immense challenges the EU now faces. I think that this is true.
In the light of this, I ask the Minister to comment on three primary issues. First, Mrs Merkel rightly and necessarily wants far greater fiscal integration in Europe. This is where the real Europe—EU2—is moving. As far as I can see this will not be possible without a budget for the eurozone countries, and most of the colleagues with whom I have discussed this agree with me. That budget will not be the same as the budget being discussed in these documents. When the Government say that they will oppose any new taxes, does this apply to taxes specifically established within the eurozone as part of a new fiscal integrated system?
Secondly, Europe 2020 has to become Europe 2012. The report refers to:
“An industrial policy for the globalisation era”,
and to:
“An agenda for new skills and jobs”.
This cannot be just a leisured anticipation of the future—in other words, the sort of paper Europe that we have always had in the past with very slow incremental change—but has to have bite in the here and now.
The politicians of EU2 are trying to drive through, almost overnight, reforms that should have been made over a decade or more. The fundamental issue of how to reconcile austerity with growth remains hugely problematic. What do the Government make of President Hollande’s proposal for an injection of €120 billion into the eurozone economy as a stimulus? I understand from the French newspapers that this would be primarily based on project bonds, which are touched on in these reports, and would be massively greater than anything that would come within the orthodox EU budget.
Thirdly, if it survives as a recognisable entity—and I hope that it does—EU1 has to resemble EU2 far more closely. The EU has to be more innovative and, as others have said, much more flexible and less bureaucratic. The mountains of bureaucratic literature that come to you when you are on an EU committee in this House are amazing. I am on the same one as the noble Lord, Lord Carter, who chairs it brilliantly, but we get enormous amounts of this. I do not think that this is possible in the EU’s new environment. It must act quickly. It is not just a matter of the moment, responding to crisis. This is an immensely fast moving world, so the EU must be reconstructed if it is going to be effective. It must be much more fast moving.
The second report has interesting proposals of its own to make and considers some proposals from the Commission. What is the Government’s view of how these goals are best achieved? How can the EU become much more adaptable and fast moving for the future? It cannot survive unless it does so. You cannot just revert to EU1, away from EU2. If it is to survive the EU has to be dramatically more adaptable.
In conclusion, even in the horrible crisis in which the EU is enmeshed, as a pro-European I would not want to give up the European dream. Even against the backdrop of this crisis or perhaps using it as a mechanism for necessary change, I would like to see the EU creating a model for growth different from that of the United States and from China’s and integrating it with the European social model. American growth is based on cheap credit, cheap energy and endless mobility. This is surely not a way for the future. The Chinese model for growth is environmentally far too destructive to be profitably copied elsewhere. In Europe a different model of growth can be still be pioneered which would be environmentally as well as economically sustainable.
Lord Teverson
My Lords, I will echo one or two of the points made my noble friend Lord Dykes. Although we are sometimes very critical of EU finances we should remind ourselves that we have a ceiling of around 1% of GDP—I think that it is 1.23% at the moment. We have to have a balanced budget. We look seven years ahead and maybe five would be better. We have a strong and frustratingly active audit process that seems to give the rest of the organisation a bad name, but it is very thorough. If many member states copied that model, or perhaps even if we did in some areas, we might not be where are at the moment.
My own committee, now called the External Affairs Sub-Committee—a name easier to understand than it used to be—was pleased with most of the way that heading 4 on external affairs was looked at. We agreed with the Government in seeing this as an area where Europe was particularly important; in that cliché, it added value on a global scale. There were important roles that it was fulfilling.
An area which has generally been seen as an EU success in the past—certainly over the past two decades—is its exercise of soft power, driving and motivating the instinct of other European states which want to shed the shackles of central economies or dictatorial regimes and to join the body politic of Europe and the European Union. It thereby reinforces the commitment to both social democracy in terms of economy, liberal democracy, politics and trade, and to an open and outward-looking global view. It has been very successful in that area. Under this process, some €70 billion is expected to be spent on the external affairs area, which is a relatively modest part of the almost €1 trillion which is being talked about for this seven-year period. That €70 billion is spent on development policy and all the things that have to be done in helping pre-accession candidate nations move towards membership. As we learnt in some of the recent accessions, we have to ensure that things such as energy, border control, civil administration, corruption and organised crime are set right before new member states join. It is spent on partnership programmes, particularly in the east but also in the Mediterranean—our own are close to home—through to humanitarian aid and all the stability initiatives, development and nuclear safety.
One area of interest, although not a large area of the budget, was a particular instrument for Greenland. That seemed quite strange at the time, but I am sure that under Arctic policy, Greenland is going to become even more important.
The European budget, through different mechanisms, tends to pay for civil missions of CSDP, although not on the whole the military planning procedures. It pays for civilian missions as well. That is part of the EU outside its borders.
Where did we have some criticism? I am grateful to those who have mentioned the European External Action Service. That did not come under our purview because it is in administration. The External Action Service is relatively new; it came out of the Lisbon treaty. It is a major conduit through which the EU relates to the rest of the world. Its remit runs from trade through to all sorts of other issues, and high priority matters for the European Union. Yet its budget within this process is hidden within administration. Where it was in the accounting perhaps did not matter so much, but we felt strongly that, as an effectively separate institution, it ought to be separated out and we ought to be able to appraise it.
We were also quite surprised that there seemed to be what we would know as contingency lines throughout heading 4. Although we understand that flexibility is important in this area, the Commission and the External Action Service rightly point out that we cannot predict the number of natural disasters, for which Europe contributes important humanitarian assistance to the rest of the world, or what they will be over the coming one, two or three years. We do not know where political issues, like helping Libya get back to stability, will arise from year to year. The flexibility in there is right, but the contingency areas perhaps add a little too much fuzziness to how the budget is assembled.
The other area that has been mentioned by noble Lords is the European Development Fund, which is not the total development budget of the European Union but that which is used within what I think of as the African, Caribbean and Pacific countries. That lies outside this framework. Clearly, to a business or any other organisation, that makes no sense whatever. Unfortunately, I am told that the calculations show that if it fell within the framework, it would not help the UK’s budget contribution, which is a shame. However, I am sure that there ought to be some way around that. We need to bring that area in and include it as part of the overall external policy.
As the External Affairs Sub-Committee, we were happy that this went in the right direction and that Europe’s role in the broader world was recognised as being important. We are at one with the Government in understanding that, although it must happen in a way that is cost-effective. Certainly, over the period, the total spending of the External Action Service should not grow, despite some of the start-up costs.
I shall make one or two further comments as an individual Member of this House, as opposed to as chairman of the sub-committee. First, on regional policy, I am lucky to come from a part of the United Kingdom that benefits greatly from convergence funding, although we should like not to be in that position. Unfortunately, it looks as though Cornwall and the Isles of Scilly will again qualify for convergence funding in the next period that we will look at. It is important that regions graduate out of this area of state-welfare benefit drip. It is a shame that that has not happened, perhaps because of the way that the economy works at the moment. However, I feel strongly that, in the longer term, we should not move to excluding certain developed states from convergence funding or cohesion funding.
Why is that? The European Union—particularly the Commission, which is in charge of these programmes —tends to be far more objective than national Governments over who should receive these funds. I am certain that if my part of the world had not fallen within the European Commission’s definition of a NUTS 2 region—of GDP per inhabitant being less than 75% of the EU average—it would never have received the aid that it needs to become a thriving economy in the future. That objectivity is important and it should not depend on which member state your region happens to be in. Spreading the rest of the cohesion funding very thinly, even over transitional areas, is wrong. Transition should be of a sort whereby you move from being a convergence area to being a normal area and are helped over a period.
I hope my noble friend Lord Carter will forgive me but I have always been very sceptical about international fisheries agreements. They are far better than they used to be; they are now called fisheries partnership agreements and there are 16 of them. On the whole, they are an excuse to get rid of European fleets from someone else’s waters, where states that are even less able to protect their waters than we are have been completely fished out. The money goes towards helping those fishing communities to look after themselves, but it often does not get much further than the national capitals. While I am sure that the system is much better than it used to be, I am still very sceptical about it.
Turning to climate change, this programme ends in 2020. We have three very strong targets for carbon reduction, energy efficiency and renewable energy. Therefore, it is quite coherent that we should have a strong programme there.
Although it not an area in which I have ever been much involved, one of the greatest added-value areas of Europe ought to be its research capability, which seems to be going down in our national economies. If there is one way in which the Commission’s goals for our competitiveness, world position and employment can be fulfilled over this seven-year period, it is by having a much stronger research base. I should dearly like to see a significant proportion of this budget go to that area, to make Europe competitive in the very different world that will arrive by 2020, when this programme ends.
Lord Kakkar
My Lords, I join other noble Lords in congratulating the noble Lord, Lord Boswell of Aynho, on his thoughtful introduction of this report and I pass to your Lordships the regrets of the noble Baroness, Lady O’Cathain, who is chairman of Sub-Committee B on the internal market and would have liked to be here, but cannot. As the recent addition to that sub-committee, I have come in her place to draw your Lordships’ attention to some of the important issues with regard to scrutiny of the part of the multiannual financial framework relating to infrastructure and innovation. In so doing, I remind noble Lords of my entry in the register of interests as professor of surgery at University College, London, an institution that is in receipt of funds from the framework 7 programme for innovation in biomedical sciences research, and as an applicant to that funding scheme.
The Connecting Europe Facility is the proposal in this MFF to bring together the funding streams related to infrastructure spending on transport, telecommunications and energy. These are all important areas, and Sub-Committee B recognised in its scrutiny that appropriate investment in this type of infrastructure could have important benefits by driving growth, improving infrastructure and meeting the objectives of European added value. If properly focused on what independent nations are unable to do but what the European Union could do more effectively by working together, this type of activity could potentially be very important.
In addition, the focus on European added value through properly transparently described and funded programmes of infrastructure investment would allow the opportunity to develop criteria that properly assessed European added value at the outset and ensured that projects could be tracked to demonstrate that added value, which is vital to convince the people of our country that this type of investment through their contributions to the European Union is effective and cost-effective.
Equally, this area of investment could be used to leverage private sector investment in major infrastructure projects, if properly directed. The proposal that the Commission play some important and enhanced role in the supervision of these projects was also potentially welcome, with the caveat that national competences must not be overridden in areas where member nations could perform tasks more effectively.
There were some concerns. The proposal in the current MFF is that funding in this area be increased fourfold over previous infrastructure investments in the areas of transport, energy and telecommunications. This was considered somewhat unrealistic. The emphasis must be on investment and a budget commensurate with that investment that focus on areas of infrastructure development that are truly European added value. As the sub-committee scrutinised proposals in this area, there was some concern that that may not be the case. With this unrealistic proposal for a large increase in expenditure, it is very important for attention to be focused on those areas of added value where nations would be unable to make the appropriate infrastructure investments.
Equally, there was concern that previous budgets have focused more on transport infrastructure and that moving forward in this MFF there should be particular emphasis on energy and telecommunications. There were some concerns about the detail of the various instruments included in this proposal. With regard to the transport instrument, for instance, the Government have recognised that there are concerns about the proposed core corridors and the potentially unwarranted mandatory infrastructure investment that could cost our country and other European nations substantially and inappropriately. The sub-committee is aware of the important advances that the Government have made in negotiations on these matters to ensure that that will no longer be the case, but it remains concerned to hear more from the Government about instruments in the telecommunications and energy areas. What progress has been made to reduce the substantially increased budget to a more realistic level? Are there areas of concern over some features of the transport instrument and mandatory infrastructure investment?
The point was also made in the sub-committee that the proposal that the Commission has a more important role in the supervision of this type of infrastructure investment should not in any way infringe national competences in these areas. This is a vital issue that would need to be emphasised during the period of this budget.
The second area I turn to is Horizon 2020, which is the innovation instrument dealt with in the MFF. The sub-committee agreed that this was a vital area, and we have heard many noble Lords in this important debate emphasise the importance of investment innovation in research and technology to drive economic growth and ensure that Europe more broadly is competitive in the coming years as we see increasing global competition from countries such as the United States, China and others, where investment in research and development continues to play a vital role in public and private investment policy.
On Horizon 2020, we have heard that there is a proposed substantial increase in the budget on research spending, but the Government consider it unrealistic given the current overall financial constraints. The sub-committee was of the view that there should be an increased emphasis on investment in innovation expenditure but within a smaller budget. So there is a very clear view that innovation should rise up the spending priorities of the European Union, should overtake areas such as the common agricultural policy and become the heart of spending proposals from the EU. That would ensure that investment in innovation translates into innovation being applied to small and medium-sized enterprises so that they can promote economic growth and create jobs.
If the proposed budget increase for innovation will not be achieved in this MFF round, it is certainly suggested that the focus should again be on areas where there is European added value. This is to drive forward the European Research Council and research excellence in Europe to ensure that co-operation in research and fostering research networks is achieved as a primary focus of the investment of those valuable funds to drive research.
Lord Liddle
My Lords, I declare an interest as chair of the think tank Policy Network, which has received some funding from the European Parliament budget.
This has been an excellent debate, typical of the quality of the work of the European Union Committee of this House. On behalf of the Opposition, I welcome the noble Lord, Lord Boswell, to his new role as chair, which I am sure he will carry out with distinction as his predecessor, the noble Lord, Lord Roper, did. He must have had a very satisfied feeling, as this debate proceeded, about the group of heavy-hitting Members he has on his committee. They and the noble Lords who chair the various sub-committees have shown today a wide range of knowledge and experience of the EU’s business. It is a balanced and objective analysis, with recommendations, and I am sure that the report of this debate will be widely read in the European institutions and by those concerned with Europe’s work.
Having said that, I regret that the committee did not issue a bolder clarion call for radical reform of the EU budget. I make no secret of the fact that I am a very passionate pro-European, but I do not think that pro-Europeans should pull their punches in any way about the need for radical budget reform. If ever there was a case for it, surely the crisis that the eurozone has now entered is a justification.
I remember at the last budget settlement in 2005 that one of the things solemnly agreed by the European Council was that there would be a thorough mid-term review of the common agricultural policy in the period of that financial framework. It never happened. I was in the Commission at the time and remember the arguments that were put forward: “Oh, we don’t want to do a review now, what we’ll do is have a really thorough intellectual examination of what needs to be done”—this was in 2008—“and will come up with radical proposals for the next seven-year period”. However, when we get to the radical proposals published by the Commission in June 2011, I am afraid they can only be described as a damp squib. It is not just the Commission’s fault but it is to an extent, because it has a duty under the treaties to speak for the European interest. The Commission should never have allowed itself to get into the mood of complacency that the member states were only too happy to be in. The Commission should have challenged them, but on the budget, it has not. As a result, it makes the task of making the case for Europe more difficult.
I agree with the noble Lord, Lord Teverson, that the European Union has very strict procedures for audit, in many ways better than many of its member states. However, the fact is that there is a widespread perception of waste and bureaucracy in that 6% administration budget. The United Kingdom should be pressing for an independent review, not just of the Commission but of the Parliament and Council budgets. The Council tends to hang on to its own budget and say that no one can look at it. We need an independent review of all the institutions and their budgets and whether they could be more efficiently spent.
The other problem with the budget is that it is such a collection of vested interests. It is the problem of an acquis of vested interests, which is extremely difficult to change. As reformers within the European Union, we have to think how, either through time-limiting certain programmes or pieces of legislation, we can make it easier to get things changed. What is the Government’s policy for making that kind of change possible? Change in the EU’s policy programmes is much needed.
The noble Lord, Lord Williamson, is right that the common agricultural policy is radically different from the policy that was launched in the 1960s, but it still needs an awful lot of reform. The payments that are made to rich farmers in northern France and parts of Britain and that often go to commercial companies are an abuse, and we ought to be capping them. I ask the Minister: is it his policy that payments to rich farmers should be capped or is it not?
Secondly, some of the Mediterranean subsidies that are given to tobacco famers in Greece, for instance, are an absolute disgrace. If we want to help Greece, the last thing that we should be doing is helping its tobacco farmers. We should help Greece to train the unskilled workforce that means that it has a real problem in competitiveness.
On the structural funds, I am a passionate supporter of regional policy. However, an independent review by Barker set out very clearly what needed to change in the structural policies. We need to get away from the doctrine of the juste retour. We need to focus on growth priorities and be clear about what they are. We need more conditionality. These things are happening to an extent, but not nearly enough.
My position, which is certainly the Labour position as well, is that it is impossible to argue for any increase in the EU budget until much more radical reform takes place. I accept the intellectual argument that a successful monetary union may require a bigger budget to make it work, but it will be impossible to argue that unless the existing budget is reformed. There is a case for some of the programmes being expanded. If there were reform, that is what should happen. We know that there are proposals to increase the research budget and expenditure on infrastructure and to extend ERASMUS. These are all very worthy objectives, which will help Europe’s competitiveness. However, I seek an assurance from the Minister. If additional money is made available under the growth plan that will come to the Council next week, will Britain be a participant in the extra money that will be available? Will we benefit from some of it as well the eurozone, or are we abstaining once again from full participation in the Union’s development?
Therefore, some areas could be expanded if only there was reform, but the reform nettle has yet to be grasped. The growth agenda to which President Hollande is so attached is an opportunity to grasp the reform agenda, but I wonder what strategy the UK Government have for being bolder in this respect. It is very difficult to get reform. I welcome the alliances that the Government have built so far, but in the past, they have tended to crack under pressure. As I have mentioned, there are vested interests everywhere in the EU budget. The European Parliament rightly has co-decision powers in the budgetary area. What is the strategy?
I read an interesting analysis from the Centre for European Reform by John Peet, the eminent Economist correspondent, and Stephen Tindale. They argued for a tripartite initiative by Britain, France and Germany, in which each member state was prepared to put their red lines on the table and try to work out a radical plan for change. Are the Government prepared to think in those terms, or are we essentially stuck with the status quo?
As my noble friend Lord Giddens said, a Europe 2 is emerging. We are in the middle of a crisis. We cannot just let the opportunity of the European budget pass us by. If Europe is to gain legitimacy, there must be radical reform of its budget.
The Commercial Secretary to the Treasury (Lord Sassoon)
My Lords, this afternoon’s debate has been very interesting and I welcome the committee’s views and the report into the next multiannual financial framework, the MFF. I would also like to thank the committee for all its work.
The Government will publish their final response to the report at the end of this month, so the debate is timely but, as I am sure those who have spoken this afternoon would expect, I will reflect on some of the more detailed points and ask noble Lords to wait for the formal response. I will answer as many of the points raised as I can, but let me principally set out what the Government believe is most important with respect to the MFF.
As the EU Committee is well aware, the Government are taking tough positions in Europe on the MFF. Negotiations are continuing towards the European Council where a presidency negotiating box will be discussed. This sets out the parameters of the MFF negotiation, moving us on from the Commission’s original proposal in June last year. I have been asked about details of the strands of negotiation, on a number of which there is little to say. In answer to the specific question from the noble Lord, Lord Boswell of Aynho, we are seeking significant reductions and reforms, including cuts from regulations. Negotiations on those specifically are going reasonably well, alongside the MFF negotiations. We are confident that we are making progress, but it is not decision time yet.
The ongoing instability in the euro area is vindication of this Government’s efforts to impose strict financial discipline on our domestic budget. We have made tough choices at home and it is now vital that EU member states show that same resolve. At a time when member states across Europe are tightening their belts, the European Commission must lead from the front to ensure that the same discipline is seen in the EU. What are they doing instead? They have called for increases in expenditure which are frankly incredible. The Commission’s proposal earlier this year to increase the annual budget by 6.8% for 2013 was completely unreasonable. The UK is committed to taking action to curb irresponsible increases in the budget, for 2013 and the next multiannual financial framework, and we will continue to work with like-minded member states to that end.
The noble Lord, Lord Harrison, asked what the evidence is for what we have achieved in the past two years. I remind noble Lords that the original Commission proposal for the 2011 budget was an increase of 5.8% and it came in at 2.9% after tough negotiations. In 2012 the original Commission proposal of 4.9% was reduced to 2.02%. The UK has been at the heart of the negotiations in Council to block increases and that is where we will continue to be. The Commission’s proposals for the next multiannual financial framework go even further, seeking to increase its revenue and spending. It wants new taxes to boost the Brussels budget, as well as an absurd spending increase. This is simply not acceptable on either front. Instead of consolidation, the Commission proposed expansion. Tough multiannual financial framework ceilings represent the best opportunity to restrain EU annual budgets and member states have recognised this link.
At the European Council in October 2010, member states agreed that,
“the forthcoming Multi-annual Financial Framework reflect the consolidation efforts being made by Member States to bring deficit and debt onto a more sustainable path”.
What has happened? Rather than follow this path, the Commission has bowed to pressure from the European Parliament to increase the budget. This returns us to the extravagance and reckless expenditure that sowed the seeds of the global economic crisis. The 11% increase proposed for the next financial framework is therefore incompatible with the tough decisions being taken in the United Kingdom and in countries across Europe. We cannot and will not support it.
In December 2010, the Prime Minister and colleagues from other member states, including France and Germany, set an upper limit for the next framework in their open letter to President Barroso. They stated clearly that,
“payment appropriations should increase, at most, by no more than inflation”.
This view has been acknowledged by the EU Committee. In answer to the specific question from the noble Lord, Lord Hannay of Chiswick, I confirm that it remains the Government’s position. The Commission claims to have done as we have asked, but let me be clear: it has not. On average, expenditure in each year of the next framework would be about €14 billion higher than it is today. In addition, the Commission has earmarked an extra €18 billion in off-budget expenditure. As the committee noted in its report, this shows an alarming lack of transparency, which brings added risks of poor oversight and control.
The Government’s overriding priority on expenditure is to restrain the total budget size but, within that context of restraint, the Government want to see taxpayers’ money directed towards areas of greatest European added value. The great majority of specific suggestions for directing expenditure that I have heard this afternoon are consistent with that.
Growth and competitiveness, external funding and the climate change components of the budget are priority areas. While our objective is to restrain the size of the budget, we believe that these areas should see a proportionately greater share in the next framework. However, this focus also demands tough choices. The first among them is a point raised by the noble Lord, Lord Boswell of Aynho. Very substantial reductions are required to the direct payments component of the common agricultural policy and to the administration budget.
Before I respond to a few of the many points on specific expenditure, a couple of general points were raised. Other noble Lords, including my noble friend Lord Maclennan of Rogart, raised the question of a five-year framework. We agree with the concerns raised in this area, but our overriding concern in the negotiations has to be to seek restraint. If restraint can be guaranteed in a five or seven-year MFF or some form of review can be built in, we are willing to discuss it, but it has to be subsidiary to our main objective.
In response to requests for increases in expenditure as opposed to relative prioritisation within the budget, whether for good things such as Europol or any number of others, I reiterate that if the Government’s opening position were to be to recommend explicit increases in certain areas of the budget before we achieved any corresponding decreases, we would be at risk of seeing ourselves committed to a higher overall budget, which would undermine the Government’s top priority here. Of course we will retain flexibility as negotiations progress in how we allocate spending, but I am going to do nothing this afternoon to endorse any absolute areas of increased expenditure. I hope that all noble Lords will understand why that is.
I turn to a few specifics, starting with issues about the common agricultural policy which were raised by the noble Lord, Lord Carter of Coles. We are seeking substantial reductions to the CAP focused on Pillar 1, the direct payments. The Commission proposal does not deliver the reform that we need. Direct payments represent low value for money. The Government are also sceptical about the Commission’s proposals on greening in the CAP. The Pillar 2 rural development is better and we want to see it taking a greater share of the total.
In answer to the specific question of the noble Lord, Lord Liddle, I am sure that he was not seeking to walk me into some trap, talking about rich farmers. That is not how I would express it. The UK is opposed to the Commission’s proposal to cap direct payments to large farms, which is the right way to see it. The CAP should encourage competitiveness, and capping direct payments would discourage that. I am afraid that I do not believe that there is merit in that capping.
On the European External Action Service, the Government do not support the ring-fencing of expenditure. The key is again—this is my constant refrain—to see restraint over the MFF in respect of the EEAS. Of course we expect the External Action Service to show value for money. We have consistently opposed increases in this specific area.
My noble friend Lord Bowness asked about the need for more judges. Yes, the Government are aware of the large backlog of cases facing the ECJ. We support reforms that would enable the ECJ to operate more efficiently. We hope that ECJ capacity will increase as a result of cost-effective reforms, which are achievable.
The noble Lord, Lord Harrison, asked about support for transitional regions and other structural and cohesion funds. The overall levels of the structural and cohesion funds should fall in real terms. The SCFs in rich member states should be cut significantly, and a greater share should be seen to go to poorer member states. The Government do not believe that the transition regions as proposed are affordable. Yes, the UK’s opposition to the transition category would reduce our share of receipts, but remember that two-thirds of this loss would be offset by the way in which it flows through the calculation of the abatement, a subject to which I will return.
The noble Baroness, Lady Young of Hornsey, mentioned ERASMUS, and ERASMUS for All can certainly add value. Again, the increase proposed is unacceptable. The Government can accept an increased share only within the envelope of a real-term freeze. Within that, among other things, the Government support the inclusion of a reference to grass-roots sport. Yes, of course we recognise the important contribution which cultural and creative sectors make to job creation and growth but, again, with the same caveats that I will not repeat.
In broadly similar territory, the noble Lord, Lord Kakkar, raised the question of the Connecting Europe Facility. He was quite right to draw attention to the 400% increase proposed in that area. Negotiations do not include specific numbers, but it is clear that substantial reductions will be needed from what is proposed.
Those were some issues on the budget—but, as noble Lords have pointed out, it is not the only priority. The MFF represents the only true opportunity for the EU to introduce a new system of own resources, the system that funds the EU budget. I share the strength of view of the noble Lord, Lord Liddle, on these issues. I hope that the noble Lord is absolutely clear that we will defend our rebate. I assure the noble Lord, Lord Williamson of Horton, that we will not trade with the abatement as has happened in the past. We will resist any change to the abatement; our abatement remains absolutely justified. The structure of EU spending means that we get less per capita than any other member state. Without the abatement, the UK’s net contribution would be the largest across the EU and twice as large as contributions made by France and Italy.
Ideas for new taxes have also been touched on this afternoon. Again, noble Lords will not be surprised to hear that the Government strongly oppose any new taxes to fund the EU budget. We attach considerable importance to the principle of tax sovereignty; we oppose any new taxes or changes to the existing system that increase the UK’s contributions or pose a threat to our long-term position—including, specifically, any financial transaction tax to fund the EU budget. We cannot accept a budget that asks for more and asks for a greater share from taxpayers and the UK.
In answer to the points made by the noble Lord, Lord Giddens, if the eurozone moves towards greater fiscal integration and imposes taxes on some joint basis within the eurozone, that will be for the eurozone. Our main concern in that context will be to see that nothing that is done affects the single market and how that is driven forward. The noble Lord also raised the question of project bonds. As I said on other occasions, yes, we will look sympathetically at detailed proposals if and when they come forward.
The MFF represents the opportunity for a far-reaching review of the spending framework. We must focus on combining stability with flexibility and building on the work going on across Europe to improve spending frameworks. We are faced with a liability of unspent commitments, which will soon be worth the equivalent of two annual EU budgets. Again, this is incredible. Of this, the Commission has said that almost €70 billion is “higher than expected”. This is extraordinary. This mountain of unspent commitments has, in the Commission’s own words, created a “snowball” effect on payment levels. We need real, practical solutions to address this liability. So far, the Commission has rejected every suggestion from member states.
The basic credibility of EU spending depends on orderly accounting. We have touched on it many times in your Lordships’ House, but nevertheless it is still astonishing and disappointing that the European Court of Auditors has not granted a positive opinion on the EU’s accounts for 17 consecutive years. This system must focus on the level of cash payments—actual spending—that the MFF will allow. Instead, the Commission continues to focus on commitments and on planned spend. Payments determine the cost to the taxpayer. The Prime Minister made this clear in his letter in 2010.
The Government took tough decisions at home and will continue to encourage our European counterparts, member states and the Commission to take the difficult decisions to cut deficits and tackle the root causes of the ongoing crisis. The current Commission proposal for the MFF is completely incompatible with the decisions being taken in finance ministries across Europe, with the realities felt by taxpayers across Europe and even with the views of President Barroso, who in June last year argued that:
“Many Member States need to show more ambition when it comes to fiscal consolidation”.
The MFF must deliver real fiscal consolidation. This cannot be achieved with substantial increases in the budget, new taxes to fund the EU budget or unreasonable changes to the UK’s abatement. This will be a tough negotiation but the Government are prepared to meet that challenge. We will be working tirelessly towards a deal, but it has to be a deal on the UK’s terms and has to be informed by the excellent work of this committee and the many points that have been made in this debate, for which I am very grateful.
Lord Boswell of Aynho
My Lords, I am very grateful to all those noble Lords who have participated in this debate. I am conscious that the hour presses now, so shall respond only very briefly. The contributions that have been made have reinforced the opinion I have already formed in the first month of work on the EU Select Committee as to the tremendous reservoirs of expertise we have, both in the members and in the staff of our sub-committees and main committee. That has come out very closely and clearly in this debate today, in what is a very technical and at the same time a very important subject. I am grateful for that.
I am also grateful for the Minister’s response. All of us are conscious of, and many of us have direct experience of, the sensitivities of going into a negotiation and the need to have the right kinds of signal to do that. I can probably speak for nearly all the members of the committee and sub-committees in saying that we want to see the maximum amount of flexibility and imagination in the negotiations in terms of the particular options that can be taken and some of the particular interests that have been mentioned today. Even if we may not absolutely coincide with him on the exact framework, many of us would welcome the fact that he has shown a commitment to rigour and so forth. That is not a card to play or throw away at this particular juncture, so we are grateful for the way he has put that and responded. It has contributed to an understanding for which I am very grateful. In that spirit, we wish the negotiations well.
Science and Technology Committee: Nuclear Research and Development
Lord Krebs
To move that the Grand Committee takes note of the report of the Science and Technology Committee on Nuclear Research and Development Capabilities (3rd Report, Session 2010-12, HL Paper 221).
Lord Krebs
My Lords, I start by thanking the members of the Science and Technology Committee, including the co-optees for this report, for their excellent contributions. I also thank our specialist adviser, Professor Robin Grimes of Imperial College, for his wise expert advice. I also thank the Minister for the Government’s response to our report, to which I will refer shortly.
This report of the Science and Technology Select Committee is about the credibility of the Government’s plans for nuclear power in the future. Nuclear energy currently supplies about 16%—12 gigawatts—of the UK’s electricity, which is down from 25% 15 years ago. Nine of the current fleet of 10 nuclear power stations are due to close down in the next 13 years, by 2025. The Government have announced that they will build a new fleet of nuclear power stations to replace those that are going out of commission. The new fleet is to be built by the nuclear industry, and the aim is to build up to 16 gigawatts of power by 2025. These new power stations will have a lifespan of 60 years. We are talking about energy generation during the bulk of the remainder of this century.
Looking further ahead, to 2050 and beyond, it is expected that nuclear power will provide a larger share of our electricity than at present. Various scenarios produced by the Government and by advisers suggest that between 15% and 49% of our electricity will come from nuclear power, but it is likely to be well above the minimum of these scenarios. Why is that? The Government’s policy on energy supply has to meet four objectives. The first is security of supply; the second is affordability; the third is to meet our legally binding greenhouse gas targets; and the last, but not the least, is safety.
On the third of these, the Committee on Climate Change, the Government’s statutory independent advisory committee—I declare an interest as a member of it—has suggested that, in order to meet our greenhouse gas targets, by 2030 the electricity supply will have to be largely decarbonised. This is likely to be achieved through a portfolio that could include 40% nuclear, 40% renewables and 20% fossil fuels, mostly with carbon capture and storage. In this mix, nuclear energy is a proven, low-cost, low-carbon option. In short, if we are to keep the lights on with a lower carbon footprint, and if we are to be able to pay to keep them on, we are likely to depend to a substantial degree on nuclear power.
This is the starting point for our report, which is not about the arguments for and against nuclear power. We take it as given that nuclear energy will be part of the future mix, and we asked whether the Government have a credible plan to deliver this. Our inquiry concluded that the Government do not have a credible plan. This was the view of all the expert witnesses, including those from the UK and overseas, and including the Government’s Chief Scientific Adviser and the chief scientific adviser in the Department of Energy and Climate Change.
We asked whether the UK will, in the decades ahead, have a sufficient supply of expertise, as well as the research and development capabilities, to support an expansion of nuclear energy. We concluded that, although the UK still has strengths in the nuclear field, they are largely the result of past investment. Many of the leading experts will retire in the next decade and, because of a lack of investment and vision by the Government, there is inadequate succession planning. Without a new generation of experts and a new focus on research and development, the UK will not be able to act as an intelligent customer for new power stations, as an effective regulator or as a contributor to the development of new nuclear technologies by UK industry. These functions are all necessary, even if the Government were to adopt what might be called an “Argos catalogue” approach of buying nuclear power plants from overseas companies.
Remarkably, in our inquiry, the Government did not even recognise the problem that they face. They presented an extraordinarily complacent view about the future. To quote one senior official in the Department of Energy and Climate Change, the Government’s strategy is to “keep a watching brief”. I can only speculate that the DECC official, when referring to a “watching brief”, was thinking of Euro 2012, Wimbledon and the Olympics. I doubt that the next generation of young scientists and engineers will be attracted by the vision of a “watching brief”.
Nor will UK industry be able to capitalise on the estimated £1.7 trillion global market for nuclear technologies in the years ahead. I will give some figures about our investment in R and D. Since the 1980s, the nuclear R and D workforce in this country has declined from about 8,000 to under 2,000, counting both public and private sectors. From the figures we had available, up to 2009, our investment in nuclear R and D was lower than countries such as Australia, which has no nuclear energy programme, half that of the Netherlands and Norway, and one-100th of that of France. We spend a smaller percentage of our energy research budget on nuclear energy than any of the 17 countries for which we had comparative data. Our international partners view our lack of investment with disbelief.
The UK also does not make the best use of facilities it has. At the National Nuclear Laboratory, to which we paid a visit to see this with our own eyes, there are state-of-the-art facilities for handling hot radioactive material that have never been commissioned. They could be an attractive facility for international collaborators, but we are simply not using them.
It appeared to us as though the Government were setting out on a journey to a nuclear energy future without a map of how to get there, without a driver and without anyone to repair the car if it breaks down on the way. What needs to happen? Our report made 14 recommendations. I do not propose to go through all 14, and I am sure that other noble Lords will refer to various aspects of our report. A central recommendation is that the Government need a nuclear energy strategy and, to underpin this, a research and development road map as well as a body to make sure that the road map is developed and implemented. That body, which we called the nuclear R and D board, should, we argued, have a powerful independent chairman and include experts from all key stakeholder groups. We argued that it should develop the vision and drive that is currently lacking, and it should hold the Government to account. In implementing this, there is no time to waste. If the Government continue to “keep a watching brief”, there may be no lights by which to watch the brief.
What have the Government said in their response? I will first give the good news. The report seems to have acted as a wake-up call. The Minister of State for Universities and Science said that nuclear issues are:
“High on our agenda… after a challenging report from the Science and Technology Committee”.
Furthermore, the Government have accepted the majority of our 14 recommendations in full or in principle. No doubt other noble Lords will pick up on other recommendations. We very much welcome this positive response. Crucially, the Government will publish a long-term strategy for nuclear energy, including an industrial vision statement explaining how the research base can support the global economic opportunities in nuclear technology. This strategy is due out in the summer. Judging by our weather, the summer has been postponed this year; I hope that that does not mean that the strategy will also be postponed.
The Government have also established a nuclear R and D advisory board, chaired by the Government Chief Scientific Adviser, whose job is to co-ordinate effort and to create the R and D road map to underpin the nuclear strategy. This road map is due to be published at the end of the year, and I hope that it will have real teeth. It should set out clearly how the Government intend to make appropriate investment in nuclear R and D, how this investment can be harnessed to support product development by UK industry and how the training of the next generation of scientists and engineers will be achieved.
The government response leaves many questions unresolved, and I hope that the Minister will use the opportunity provided by this debate to update us on progress and thereby shine light, perhaps even light generated by nuclear power, on some of these unresolved issues.
I have four questions for the Minister. First, will the R and D advisory board continue, as we recommend, with not only an advisory but an executive role in the future and who will chair it? Will it be established as a non-departmental public body as we recommended? Secondly, will the Government reinstate the UK’s membership of the so-called Generation IV International Forum, the body that will shape the next generation of nuclear power stations, or are we to remain in the stands as observers? Thirdly, have the Government decided that they will now commission the currently unused state-of-the-art hot facilities at the National Nuclear Laboratory? Fourthly, do the Government plan to implement our recommendation for the re-establishment of the Nuclear Safety Advisory Committee to provide independent advice and challenge for the Office for Nuclear Regulation and challenges to it? This country rightly has an outstanding international reputation for nuclear safety, evidenced by the fact that our chief nuclear inspector, Dr Mike Weightman, was chosen by the international community to report on the Fukushima incident in 2011. It is crucial for our nuclear future that this outstanding reputation is maintained.
I look forward to the debate and to the Minister’s answers to these and other questions. I commend this report to the House. I beg to move.
Lord Jenkin of Roding
The noble Lord, Lord Krebs, has given a splendid introduction to this debate. I might add that he was an excellent chairman of the committee and mention one particular contribution. One weekend he took home what many of us regarded as not a very good summary of our report and came back with an electrifying one. That substantially laid the foundations for the report’s success and its result.
Given the response from the Government, which I shall refer to in a moment, I do not hesitate to say that this has been a very influential report, perhaps more so than some other science and technology reports of recent years. I hope that I am not breaching a confidence when I say that the Minister of Energy asked the noble Lord, Lord Oxburgh, and me, two co-opted members of the committee, to go and see him. He wanted to discuss one or two impacts of the report. The right honourable gentleman confessed to us that the report had drawn attention to some significant gaps in the Government’s policies for nuclear energy and, in particular, to the need for more research and development. Certainly, the contrast between what the noble Lord, Lord Krebs, rightly called the complacent evidence given to our inquiry by the Government and the far more positive, constructive tone of their response is truly remarkable and very welcome.
This debate is the occasion for looking forward to what is to come and, like the noble Lord, Lord Krebs, I will have some questions for the Minister. It is still clear that there are challenges. Last Thursday I was privileged to host a reception in the Palace at which the University of Manchester and the Dalton Nuclear Institute celebrated their recent award. I might add that Manchester had the foresight to embark on a new nuclear research and training programme well in advance of the previous Government’s change of heart, with the notable speech by the Prime Minister at the Royal Society. Manchester started in 2005, when some of us felt that we were batting away in the dark, banging for a new nuclear programme and not being listened to. The result of the university’s far-sighted decision was the establishment of the Dalton Nuclear Institute. Earlier this year, the institute and the university were awarded the Diamond Jubilee Queen’s anniversary prize in recognition of their,
“internationally renowned research and skills training for the nuclear industry”.
They have every entitlement to be extremely proud of that.
At the reception last week, the director of the institute, Professor Andrew Sherry, who gave some very compelling evidence to our Select Committee, listed what he saw as seven grand challenges over the next decades. I will draw attention to some of these and ask the Government where we are getting to on them. Andrew Sherry’s seven grand challenges are: decommissioning and clean-up; geological disposal; current and new-build reactor systems; spent fuel management; plutonium management; safeguards and security; and future nuclear energy systems, especially the generation 4 system, to which the noble Lord, Lord Krebs, referred. That is a formidable agenda by any standards. However, the Government’s response to our report, and the accounts that I have heard of the work of the R and D advisory board, are encouraging as far as they go. Of course, we await the strategy paper and the promised road map, both of which are strongly recommended by the Select Committee and accepted by the Government. Many of our own more detailed recommendations have to await those documents, although the signs that they will be favourable are good. However, I am very glad that when he gave his response to the committee’s report, the noble Lord, Lord Krebs, indicated that we may well want to return to the issues in the future if we are not satisfied with what we see. This is a hugely important area of government policy and this Select Committee is probably as well qualified as any to press the Government to get on with it.
I would like to ask the Minister about two of the seven challenges. One concerns plutonium management and the other future nuclear energy systems—the fifth and seventh items on the professor’s list. As everybody well knows, plutonium stocks are the long-term legacy left behind after decades of uranium-based nuclear generation. They must be dealt with. They can no longer simply be bequeathed to future generations. We have to find a solution. The Government are consulting on this but they have made it clear that their preferred solution is to build a new Mox plant—a mixed oxide plant—because the one at Sellafield has never worked properly, even though the French have had a very successful Mox plant in France. However, it is already clear that while this would progressively consume the plutonium stocks, it would be unlikely ever to pay for itself by the sales of Mox fuel.
There is an alternative solution, which I have discussed with the Minister and officials in his department—the so-called PRISM process being put forward by GE Hitachi. It would burn the plutonium as a fuel and at the same time generate electricity, so it should pay for itself. It is in fact a new generation nuclear reactor. I understand that GE Hitachi has offered guarantees, and it tells me that it is in detailed discussions with the Nuclear Decommissioning Authority. I was reassured a few months ago by officials at DECC that they are treating it very seriously. Can my noble friend tell us anything more about that and about when we might have a decision? I recognise that the Government’s preferred decisions is the Mox plant, but there seems to be what might be a more valuable way forward through the GE Hitachi PRISM.
In this context, I welcome the noble Baroness, Lady Worthington, to her position on the Front Bench. I think I am right in saying that this is her first time in Grand Committee. We look forward to hearing her speech. I have had a number of exchanges with the noble Baroness since she joined the House, and she has sought to persuade me that the future for the nuclear industry should be based not on uranium but on thorium. It is a perfectly respectable argument in the right places. It has greater resistance to proliferation and other advantages, but I have also discussed this with experts at the National Nuclear Laboratory, and I am persuaded by the force of their arguments. This country has decades of practical experience with uranium. We have developed our widely recognised expertise in the uranium fuel cycle, and there are likely to be ready supplies of uranium all over the world, as far as can reasonably be seen. Thorium may be a proper process for a country that is starting up and has no history equivalent to ours, but I have to point out respectfully to the noble Baroness that I do not think it could possibly be appropriate in this country.
The second thing I shall talk about is future nuclear energy systems. Our evidence convinced me and, I think, most members that UK participation in international programmes—the noble Lord, Lord Krebs, has already mentioned the Gen 4 proposals—is essential if we are to present ourselves as having a long-term nuclear future and the credibility, to which the noble Lord referred, that will be needed if we are to work with other countries. For this, we must restore our reputation as world-class experts with a coherent and cohesive R and D programme. We took a lot of evidence about this. We still have great strength in certain fields, notably the fuel cycle field, but without such a programme, the rest will just dissipate and disappear.
How can this be done? One of our proposals was that, quite apart from the overseeing board, to which the noble Lord, Lord Krebs, referred, we need a top, high-level hub around which other research facilities in the country can act as spokes. I have discussed this at some length with the National Nuclear Laboratory and, of course, with the Dalton Nuclear Institute, but there are other institutions. There are ISIS, Diamond Light Source, the universities and so on. We need this hub. In my view, a combination of the National Nuclear Laboratory and, as a university participant, the Dalton Nuclear Institute would provide very welcome technical leadership. As has been said, we have world-class resources. The noble Lord, Lord Krebs, has already referred to the commissioning of the remaining phases of the nuclear laboratory at Sellafield. I, too, went to see them. My noble friend Lord Wade and I went, and they are hugely impressive, but empty. It is an enormous waste to leave them unused and unoccupied when they could help to establish our credibility as having a long-term future.
I ask the Minister what is happening there. Can he give us some understanding that these facilities will be commissioned and perhaps some idea as to how they might be paid for? We had useful evidence that they are very attractive to foreign companies and Governments that would want to do research on highly active materials. They have all the equipment and facilities to do that. However, we need to have this properly organised with an integrated and accessible hub—what the National Nuclear Laboratory described as,
“a focal point and lead organisation to coordinate work on behalf of the Government including international collaboration”.
There is much else in the report that we could refer to, but these are two very important issues in a very important report, and I hope the Minister will be able to offer us some way forward. As I said earlier, my impression is that the advisory board is doing well as far as it goes. However, the Government will need to press this forward vigorously and make sure that the hopes that have been aroused by their response to the report will indeed be realised.
Lord Hunt of Chesterton
My Lords, I welcome this report, which, as the noble Lord, Lord Jenkin, has said, is extremely well written and constructed and should lead to new long-term policies. I also welcome the unusually constructive government response, by which I refer to the generic feature of government responses, which do not always welcome all sorts of recommendations. This is a good step forward. The report is, of course, mainly concerned with nuclear fission power and the UK context, although it does note the evidence of the director of the UK fusion programme and there is also evidence in it from the director of the Atomic Weapons Establishment. I will come back to these questions but will just declare my own interest. In my own meandering career, I have worked on various nuclear issues such as the fast breeder reactor, fission-related problems and fusion technology. I am now a consultant and adviser to Tokamak Solutions, a project with government and private funding that is looking at possibly linking fusion and fission.
As the report says, the UK has very considerable capabilities in the basic sciences and technologies needed for the nuclear industry. In many areas, the UK was a leader and has a great tradition of collaboration between universities and government or industrial laboratories, which I have participated in. One of the features of having this dual approach to development and research, which is, of course, common to all other countries but which has seen a huge decline in the UK, is that it enables projects to start in the applied area. They then go into the universities, which advise them, and they then turn into research projects, funded by research councils, to establish the basic principles and publish the results in the scientific literature.
Some of the areas where the UK did particularly important work was mathematics, such as that relating to the optimisation of nuclear reactors that began in Harwell. The work there has established the basic methods around the world in many areas of technology including fluid flow, structures in nuclear engineering, electrodynamics and safety. Not everyone knows that Dalton was a meteorologist before he became a chemist. Dalton’s meteorology, as well as his chemistry, was important for safety.
The other important point I want to emphasise is that the model proposed in this report is essentially one of a board, with one or two centres, and university departments. The noble Lord, Lord Jenkin, has, quite rightly, picked up what I also want to emphasise, which is that having a very significant hub makes a huge difference. There was an educational rumpus in the British system around 1990, when Mrs Thatcher—the noble Baroness, Lady Thatcher—was still Prime Minister, over whether climate change research would have one major centre, collaborating with universities, or all the funds would be distributed among existing laboratories. The controversial decision was taken to have the Hadley Centre, which turned into a world-leading institution. In the past, we have had world-leading centres that have been major hubs. The recommendation is not as strong as it might be in this report. Indeed, this has been the basis of leadership in the United States, France, Germany—until it withdrew—and Japan. We should remember the lessons of those countries.
In respect of that point, I worked in the Central Electricity Generating Board laboratory, which is now a housing estate, like many of our former laboratories. The privatisation programme in Britain led to a lot of housing estates taking over laboratories but none of the money from those estates ended up in science. It ended up in various places, which we shall talk about.
On the UK activities of this hub programme, it is essential that it does not just advise the Government. On this, I differ from the noble Lord, Lord Jenkin. It must be seen to be a realistic organisation that works with industry. It must have contracts with industry—that is important—or it will not have credibility.
Lord Jenkin of Roding
I am sorry; I did not intend to imply the opposite. The noble Lord is absolutely right.
Lord Hunt of Chesterton
I see. The hub must be very practical and involved in engineering. I am sorry to sound like a broken record but we used to do that in the old CEGB. We were dealing with problems in power stations and designing new power stations, as well as carrying out research. That led to world-class respect.
The other important point is that there is the possibility of our hub or network using the extraordinarily advanced international computational facilities at the Atomic Weapons Establishment and, as I learnt yesterday from the Financial Times, the new engineering facilities being built at Rolls-Royce for the Trident programme. These will have extraordinary abilities, which we should involve in our programme.
I have a little anecdote on this. When I was a trainee, I was clambering around on a new railway engine that was being built in Vickers. All our equipment there was stamped, “Nuclear facilities: not to be used for any other purpose”. That is the kind of collaboration from which we rather want to move away. The United States has the major nuclear laboratories. It has always combined R and D work on the civil and defence aspects of nuclear energy. I do not see why we should move more in that direction in the UK.
Finally, responsibility for forward strategic planning, which needs to be explicit in the terms of reference of the board and maybe this hub, should include R and D programmes concerned with nuclear waste. This should involve not only geological repositories but new technologies. My noble friend Lady Worthington will doubtless touch on this. It is clear from Russia, China and Korea that it is important to use materials other than uranium, and that, even with uranium, we must find technologies that will use our existing waste as well as new waste. Can we really accept that the UK’s nuclear waste will be stored for ever, until the next ice age, about which the noble Lord, Lord Oxburgh, will perhaps tell us? Surely this is the moment when we should have new institutions with very long-range objectives—at least as long-range as those of other countries, which are certainly working on that timescale.
Lord Oxburgh
My Lords, it is a pleasure to take part in this debate. The committee’s chairman has given us an excellent introduction. I, too, commend his chairmanship of the committee and his presentation of our findings today.
The report is primarily about keeping open this country’s options for nuclear energy, which depends on having the technical competence to understand, procure, run and regulate future generations of nuclear reactors. This calls for a wide range of scientific and technological expertise and a steady inflow of capable young people into nuclear science and engineering. The rationale for the inquiry was concern that we might be losing that competence. In spite of a worrying degree of complacency displayed by some government officials, our concerns were echoed by industry and other experts.
Our review of nuclear engineering and science in the UK showed that a substantial amount of R and D work was being carried out. However, there were two problems. The work was being carried out by more than a dozen different organisations, each with its own remit, priorities and agenda. Furthermore, there were no formal means by which these bodies could tailor their programmes to complement each other or to form a coherent national civil nuclear programme. These organisations are listed in the report, and I will mention only two. Our National Nuclear Laboratory, to which the Government assign lofty aims and responsibilities, is run at arm’s length by DECC, receives virtually no direct government funding and its main programme comprises such short-term, applied projects as it can fund through external commercial contracts. Some of its important and strategic facilities remain unused because no customer needs to use them and universities cannot afford them. It is as if the Government do not mind very much what the NNL does, provided that there is no charge to public funds. This situation is viewed with astonishment by colleagues in other countries, as is the minimal level of public funding for nuclear research over the last 20 years. The striking details are displayed in our report.
The second example is our research councils, which decide what science to support on the basis of competitive bids from universities. If the quality of science proposed in a nuclear bid, although high, is judged to be less good than that in another competitive bid, the work is not funded, regardless of any national importance that it may have. Again, this is not a criticism of research councils, which have to operate this way, but it does mean that special arrangements would have to be made for them to fit into any kind of national programme.
Each of the other UK bodies in nuclear R and D has similarly diverse aims and approaches. Unco-ordinated as they are they are, this eclectic mix of activities does have one characteristic in common: nearly all the money comes directly or indirectly from the Government. It would make sense therefore for the Government to exercise some coherent degree of oversight. But who is to do it? The problem is not eased by what appeared to us to be an unsatisfactory interface between the two departments primarily concerned, BIS and DECC. There is no person or body within government that has either the competence or responsibility to take an overall view of our civil nuclear capabilities. It is hardly surprising that we are not viewed internationally as a serious player, an impression that is reinforced when the Government decides on cost grounds that we should not participate in important, collaborative programmes international programmes that other countries see as a means of reducing costs.
It is for that reason that our report urges the Government to both develop a nuclear R and D strategy and establish an independent nuclear R and D board to ensure that the strategy is implemented. These two elements of our report are closely linked and depend on each other. The board should have members drawn from industry, from research laboratories and, indeed, from academia.
The Government’s reply to our report, as our chairman has said, is encouraging. The reply accepts the idea of a national strategy and a road map, and that is welcome. It has also established a nuclear R and D board, chaired by the government Chief Scientific Adviser to advise on next steps. This is fine as far as it goes. Whereas an advisory body chaired by the government Chief Scientific Adviser may be an appropriate interim step, it would be a serious error to regard it as a long-term solution. The government Chief Scientific Adviser has many responsibilities, and whereas his weight would be useful in dealing with the various independent and disparate bodies I have described, it would be unrealistic to expect of him the ongoing commitment of time and effort that will be needed.
Precisely how our nuclear R and D board is implemented or named does not matter. What we need is a high-level expert and influential body with a chairman who can commit several days a month to the job, supported by a small staff and a modest budget. The board must be able to co-ordinate, promote collaboration and commission work in areas where it recognises strategic gaps, whether in research, development or training. Our inquiry did not anticipate that the cost of funding such work would be high, and one witness suggested that an expenditure of around £20 million a year would be sufficient. This funding would enable the board to complement the work of the research councils, the technology strategy board and others, most likely with contracts placed with the National Nuclear Laboratory or perhaps with universities.
Such a commitment to R and D, along with a coherent road map, would also send a very clear, positive message to the nuclear industry. Much of that industry is international and can choose the most attractive location for its manufacturing facilities. This would be seen as a clear invitation to invest here. The recently announced intention to support the Rolls-Royce naval nuclear propulsion facility is to be welcomed and will certainly attract international interest. It would be strongly reinforced by a clear civil nuclear road map and a credible means of implementing it. The key point is that there must be a clearly identified focus of responsibility for ensuring the health and effectiveness of an agreed civil nuclear R and D programme: the road map. The additional cost would be very small. The job is primarily one of co-ordination and ensuring that the country gets value for the money that it is already spending. The opportunity is not only to secure an essential leg of government energy policy but to open up opportunities for industry at home and abroad.
Lord Crickhowell
My Lords, during the debate on the gracious Speech, I spoke about this report and described the extraordinary discrepancy between the view, on the one hand, of government officials in DECC and the previous Secretary of State and, on the other, those of almost everyone else, including the Government’s own scientific advisers. I quoted our conclusion:
“A fundamental change in the Government’s approach to nuclear R and D is needed now to address the complacency which permeates their vision of how the UK’s energy needs will be met in the future”.
I went on:
“Those were strong words and they seem to have detonated like a nuclear explosion within DECC. The Government’s response, accepting almost all our recommendations, appears to represent the fundamental change in approach to R and D that we demanded. It also acknowledges, ‘that nuclear power stations have a vital part in our energy strategy’”.—[Official Report, 16/5/12; col. 464.]
I welcomed the change, but said that I remained acutely concerned about the Government’s wider approach and about what I fear is still a possibility, an acute energy security crisis.
Many of my concerns remain. I believe that every member of the committee was deeply disturbed, indeed shocked, by the flaws in the approach of the department over this important area of its responsibilities that were exposed during our evidence sessions. Comforting although it is to have our criticisms and recommendations so comprehensively accepted, confidence was shaken and it will take a good deal of effort for it to be fully restored. What is important now is to see the commitments made in the Government’s response turned into reality.
The publication of the long-term strategy document in the summer, the creation of an advisory board led by the Government’s chief scientist and the development of the promised road map will all be significant steps, but a number of our recommendations are taken no further than the promise that they will be considered by the advisory board and as part of discussions on the road map. As the noble Lord, Lord Krebs, has already observed, many questions are unresolved. The Select Committee will need to keep a close eye on events as they unfold.
This is not the moment to range widely over energy policy and the problem issues I referred to in the debate on the gracious Speech. The coming debates on the energy Bill and the proposed hugely complex system of contracts for difference will provide plenty of opportunities for that. I believe that the nation’s energy security depends on a substantial nuclear component and will listen closely to the debate about whether that will require up-front price subsidies of the initial high capital costs of nuclear to produce competitive low-cost energy over a 60-year life cycle and whether the Government’s complex scheme will provide the certainty and confidence that France’s EDF and probably others will demand if they are to go ahead with the planned nuclear programme.
I leave those vital questions for now. I want to take up two points that arise directly from our report. The first is covered by paragraphs 84 to 86 and the former Secretary of State’s comments about oil and gas scenarios. Those responsible for energy policy have now to face the reality that gas prices are most unlikely to be at the top end of Mr Huhne’s alternative scenarios but are likely to be at the bottom. I shall, I hope, explain as I go on why this is a completely relevant topic to consider in the context of a report on nuclear R and D.
North American gas prices have tumbled due to the successful exploitation of US shale gas reserves. There are vast shale gas reserves around the world, including in Europe and under European waters. They are so vast in China, Mexico and South America that the energy resource geography of the world is likely to be completely transformed. That was the view of Professor Mike Stephenson of the British Geological Survey, who is also the director of the Nottingham Centre for Carbon Capture and Storage, who was speaking at an important seminar I attended yesterday at the Geological Society in Burlington House.
The Government appear to have been playing down the potential for UK shale oil, but the Commons Energy and Climate Change Committee has concluded that a moratorium on extraction in the UK is not justified and the way has been cleared for further exploratory work. That is important because at present we simply do not know how much we have. The BGS’s early estimate for the area being looked at in the north-east is likely to be revised up later this year, and estimates for the rest of the UK onshore will follow. Melvyn Giles, global head of unconventional gas and light oil at Shell, has recently reported that the UK’s offshore reserves are “mind-blowingly big”. At the moment, extraction costs make offshore reserves completely uncompetitive, but developing extraction technology may well change that. Onshore, it seems highly probable that the rest of the world will over the next few years follow the American lead.
The Select Committee’s report was about nuclear R and D; but R and D of one potential energy source cannot, or should not, be carried out in isolation. The reality is that UK shale gas exploration is in its infancy. We do not know how much is down there, onshore or offshore, we do not know what proportion is retrievable and we know very little about the likely cost of extraction. We also have much to learn about the potential environmental impact, given the political need to reassure the public that shale gas can be extracted safely. Almost everything I heard at Burlington House was reassuring, but the truth is that everyone has been caught a little by surprise by the speed of events and there is a need to catch up. Most of the studies produced so far in the US and here lack peer review. There is an urgent need for independent peer-reviewed assessment to identify low risks—the things we do not have to worry about—and those that are high risk that need to be regulated for public safety and to satisfy public opinion. There is a need to collect much more data.
If we are to have a sane energy policy, we need to know much more about these hugely important changes in the world’s energy resources and markets as a matter of some urgency. An article in the May edition of the journal of the Foundation for Science and Technology, entitled “The gas supply revolution”, by Malcolm Brinded, former executive director of Shell’s Upstream International business, provides compelling evidence in support of that argument, whether the primary concern is global warming, energy security or cost.
I believe that DECC should be encouraging a substantial research programme, perhaps jointly with the countries in eastern Europe that have vast reserves but could make good use of our expertise and regulatory experience. The funding councils stand back from such programmes, believing that it is a job for the oil industry, but researchers outside the oil industry have to be more and more involved if we are to get the information that we need. I do not apologise for saying all this on the back of a report on nuclear research. We need to have a properly co-ordinated programme of research that covers the main energy sources. They need to be looked at together. I have no doubt that this is a topic to which the Select Committee will have to return.
I turn to the subject of the UK nuclear industry’s potential,
“contribution to jobs, growth and high value exports”,
to pick up a quotation from the Government’s response. The Times, in a leading article on 11 June, observed that we need,
“to identify sectors, such as creative and professional services, health care and pharmaceuticals, the growth of which could make Britain a net exporter”.
The committee heard ample evidence that, despite several decades of government neglect, nuclear should be included in that list. I refer to paragraphs 67 and 68 of our report, which contain the TSB’s estimate that the global nuclear fission market is worth about £600 billion for new nuclear build and £250 billion for decommissioning, waste treatment and disposal over the next 20 years, with considerable opportunities for UK businesses. Paragraph 68 describes the R and D competition that the TSB has launched for feasibility studies targeted at SMEs, which could become part of a new nuclear supply chain and its likely future round of investment for larger collaborative R and D.
Evidence in paragraphs 72 to 74 suggested that the real opportunity would be,
“‘taking a lead now in the development of some of the technologies for future systems’ so that the UK had an exportable technology in two, three or four decades time and could take advantage of the ‘£1.7 trillion of investment worldwide’ in these technologies”.
Mr Ric Parker of Rolls-Royce told us that,
“there are two clear areas for the UK to play a role in the development of these technologies: the prime investment is in high-integrity manufacturing, monitoring and some of the technical and engineering support for these new facilities”.
He also thought that,
“small reactors, of the 200-, 300 megawatt size … could be a major earner for the UK”.
Paragraph 5 of the Government’s response talked of a commitment to securing the maximum economic benefit to the UK from investment in nuclear power generation. That will require more effective joined-up government, particularly between DECC and BIS, than we detected in the evidence that we received; and more effective international co-operation, something that has already been mentioned by colleagues, including the reinstatement of the UK’s active membership of the Generation IV Forum—our recommendation 5. The encouraging reality is that nuclear is not just a costly necessity but provides a huge opportunity for the growth of a large and profitable international industrial sector. We must seize that opportunity.
Lord Winston
My Lords, I never thought that I would, in these hallowed places, praise the Daily Mail. However, last March, just over a year ago, Michael Hanlon, the scientific correspondent, did a great public service in demonstrating the fact that the Fukushima disaster should not turn us away from nuclear energy. He pointed out on 31 March, just three weeks after the accident, that 20,000 people had died in the flooding but nobody had died as a result of the nuclear explosion. He pointed out too that nuclear workers who were trying to deal with the problem might, with their protective suits, at worst—I am speaking as a biologist—have an extra 1% or 2% chance of developing a cancer as a consequence. He pointed out that, at Chernobyl, far more people were killed as a result of a reaction to the explosion than as a result of the nuclear reaction itself. One of the things that Mr Hanlon pointed out in his various writings on the subject was that politicians—I am not referring particularly to British politicians—really ought to have known better, and that we actually need to be much more aware of a balanced view about nuclear power.
I say all that because one of the things that our report focuses on is the issue of public engagement, and the issue of public understanding of what is involved. This is still an issue today. Only yesterday, there was coverage in the Welsh papers about Wylfa B and how PAWB is congratulating itself that the Minister is now dead in the water with his plans for it, while the Minister—Mr Hendry—was pointing out that he would persist with his plans for that part of the world. People have to understand that nuclear reactors actually release less radioactive material than do coal-fired power stations, and that if we abandoned nuclear completely it would increase the amount of nuclear radiation around us.
I have just come back from the Cheltenham Science Festival. It is an amazing event which lasts five days, where scientists from all over and outside this country come to present their various sciences to the public. What was so dissatisfactory and disappointing was that at this outstanding festival—it is probably the best public engagement in the world at a science festival—in 200 representations, events, lectures and various symposia, there was not a single one on nuclear fission. EDF was present with its tent. As the Minister will know, EDF spends some €350 million a year on R and D in this area, and it spends 8% of that in the UK. At this meeting, EDF said privately that it cannot find enough young people to help it with this research and go into the industry. That links in pretty well with what the noble Lord, Lord Oxburgh, said about our need to link with industry.
Certainly, talking to various young people doing nuclear physics at that meeting in Cheltenham, it was obvious that there are some really outstanding scientists. One of my colleagues, who trained at Imperial College, for example, clearly had an extremely promising career but now cannot find any post-doctoral or further research position to continue her work in nuclear physics. This is a terrible blight on our young generation, as it is when we come to recruiting PhD students. With the extreme tension at the engineering office of the sciences research council and the fact that in real terms we have lost 16% of our budget, it is massively difficult to see how we can really maintain this expertise in which we led the world. Only 40 years ago, we were spending nearly £500 million on research in this area. Under different successive Governments—no one Government are to blame—we ended up spending probably a post-doctoral scientist’s research salary and a bit more besides, which is really quite shocking. It is now slightly creeping up, but the pressure is massive and not one that can be undertaken with the constraints that apply to our two research councils most involved in this area. There is also a clear need that if we are really to have the public behind us and with this very important initiative, we have to be seen to be listening to the public much better than we have been doing. Aspects of public engagement have been pretty unsophisticated, and they need to include a recognition that we as scientists have to show our responsibility and concerns about the ethics of what we do and involve social scientists in government to work out how best to do that. This is still a major problem.
Recently in a debate in the Chamber, the noble Lord, Lord Alderdice, argued that we on the Select Committee are not interested in social sciences. I am afraid that he is mistaken. So much of the work that we do is involved in social sciences, and we take it very seriously. Of course, the Engineering and Physical Sciences Research Council has also tried very hard to get involved with things like dialogue and better public engagement and has tried to support it a great deal. But it is really very important that the Government do that. If we do public engagement with the issues involved in nuclear, it is actually a generic area; the skills we would learn from this contentious area apply increasingly to a whole range of technologies as science develops and becomes increasingly important in our society. I hope that the Government can do something towards this and do what is essential to make this a much more acceptable technology, which will I hope be better funded in consequence.
Lord Broers
My Lords, we are already at a point in this debate when much that must be said has been said. As the noble Lord, Lord Crickhowell, pointed out, the energy world has changed a great deal since the report was published, but I still believe that it is crucial to retain nuclear power as one of the low-cost carbon options in the UK energy strategy, despite the increasing awareness of the vast potential of low-cost shale gas and concern about the failures at Fukushima.
Nuclear power is the most mature of the three major low-carbon options in our strategy and is vastly better understood in terms of performance, maintenance and cost than offshore wind, let alone carbon capture and storage. However, there is no denying that the possibility worldwide of cheaper natural gas, even if there is not very much of it directly under the UK—although, as the noble Lord, Lord Crickhowell, said, there may be some under the waters adjacent to us—together with, illogically in my mind, the safety concerns resulting from the Fukushima failure that the noble Lord, Lord Winston, has just addressed, have made the nuclear option less attractive, so much so that those who were to supply our new plants have either delayed their commitments, as with EDF, or, in the case of RWE and E.On, withdrawn completely. Of course, there are others who may be willing to build our plants, such as the Chinese and the Russians.
It is, no doubt, because of the change in the general energy supply outlook that the Government decided to introduce contracts for difference to provide a more favourable pricing environment for potential bidders. These CFDs are being viewed by some as a hidden subsidy for nuclear power which, as we all know, the Government have sworn that they would not allow. They argue that the CFDs are available for all low-carbon options, not just nuclear, and that it has always been assumed that it would be necessary to subsidise low-cost carbon alternatives, at least initially. This is not, therefore, in their mind, a subsidy that singles out nuclear. On balance, I agree with that argument and, in any case, I have always felt that the first implementation of any new technology needs some form of financial assistance.
On the basis that this is not the time to abandon plans for maintaining, or even growing, our nuclear base, the recommendations of the Select Committee’s report that will restore and update our knowledge base are powerful and should be implemented. I was highly encouraged by the positive response from the Government to many of our recommendations. I join others in complimenting our chairman, the noble Lord, Lord Krebs, for the strong way in which he led the inquiry and the focus he maintained on the importance of re-establishing a competitive, well co-ordinated R and D base for the nuclear industry.
First and foremost, as no doubt many have said and will say, we need a comprehensive R and D strategy, as laid out in our first recommendation, that looks as far ahead as 2050. The output of this strategy will be a road map, which although it is not stated, will have to be reviewed every few years to ensure that it is keeping up with unpredictable developments. Along with many others, I am pleased that our recommendation to set up an advisory board to oversee and co-ordinate this R and D programme was accepted. As we have heard, the board has already met, but we are yet to learn who is going to pay for all this and for how long the payment will be maintained. Our chairman has said, perhaps in another place, that we may have to return to this to ensure that the programme continues.
I spoke in the Queen’s Speech debate about the need to increase the resources that we devote to R and D in the broader context of the economy, very much along the lines of the noble Lord, Lord Crickhowell. At present, largely because of the dramatic fall in our manufacturing output, we lag far behind our competitors in R and D spend as a fraction of GDP. The dangers of allowing this to happen are no better illustrated than by our current predicament with nuclear power. We can no longer build nuclear plants ourselves and therefore lack the ability to determine our own future.
Fortunately, in the case of nuclear R and D, the Government agree with our concern and with our wish to restore our nuclear R and D capability so that we can support the new-generation plants and better deal with the already existing and giant problem of disposing of our legacy waste. We need not do this in isolation from the rest of the world. We should, as the noble Lord, Lord Hunt, suggested to me yesterday, collaborate with others, especially the French, who have world-leading capability. In giving evidence to us, Mr Bernard Bigot, chairman of France’s Alternative Energies and Atomic Energy Commission, which, incidentally, has 4,500 people working on nuclear energy R and D with a budget of €1.2 billion—the noble Lord, Lord Krebs, referred to the comparison between our 2% effort and theirs—said:
“So I think you should build expertise in your country and share expertise with others in order to strengthen your capacity”.
He made it clear that the French would he happy to collaborate with us.
I finish by asking the Minister to assure us that the Government’s commitment to restore our R and D base in nuclear power is firm and that the full potential of nuclear technology for this country will be realised.
Baroness Hilton of Eggardon
My Lords, I would like to take up the point about public engagement made by my noble friend Lord Winston and the importance of getting people in this country to understand the vital necessity of having more nuclear power capacity.
Twenty years ago, in common with many people in this country, I was opposed to the extension of our capacity for nuclear power. This was largely because of the problems of the disposal of nuclear waste and its persistence in the environment, which have still not been solved. This was reinforced early in my time in the Lords when I was sent as a representative of the Environment Committee to a weekend conference in Iceland on marine wildlife. The main concern of the Icelanders was the radioactive isotopes in their fish, which were traceable to leakages from Sellafield. As a balancing act they hoped that we would agree to their resumed hunting of minke whales. Over the past 20 years, however, I have come to realise that the only effective solution to our short-term energy needs and the overriding importance of mitigating climate change is nuclear power. I therefore support all the recommendations in our report.
One of the great drawbacks of democracy is that it inhibits long-term strategic planning because of the short-term needs of politicians to be re-elected. Nuclear power is essentially an unpopular policy for many of our electorate. It also may require greater investment and mean weaning people off their love for motor cars and dependency on oil. Long-term strategies may also imply government investment and the raising of taxes. Although the Government’s formal response to our report is encouraging, when he gave evidence to us the Minister was extraordinarily complacent, relying entirely on fossil fuel technologies such as carbon capture and storage, which is still at an experimental stage, and fracking, which always sounds to me rather indecent—and which also may be more problematic in this country because of the clay content of our soils and because our oil shales are much deeper than those in the United States. Even if successful, both these technologies will ultimately run out of their basic raw materials. Therefore, I hope that the forthcoming strategy that the Government are to produce will be more realistic about the need for nuclear power.
At the moment the Government seem to have no sense of the urgency of our need for research capacity, which has been underfunded for the past 20 years. We have an ageing population of nuclear scientists and astonishingly have withdrawn from the international forum for generation IV development. Government action is urgently needed now to provide a strategic plan and sufficient investment to ensure the security of this country’s energy supply and the long-term aim of mitigating climate change. So far there is little indication of the necessary urgency.
Baroness Worthington
My Lords, I congratulate and thank the noble Lord, Lord Krebs, and fellow committee members for an excellent report, which seems to have shocked the Government out of their complacency. A number of noble Lords have mentioned that word in relation to the evidence that was given. It seems that the report has engendered a different response and indicated that there is a problem that needs to be addressed. I congratulate the committee on achieving that change.
I will quickly try to summarise a few of the issues raised by noble Lords. The theme that seems to be emerging is that there has been a lack of a long-term strategy. That has been mentioned by a number of noble Lords. There are two clear recommendations on the way to address this. It would be great to hear the Minister comment on those. One is the creation of a hub, where we can our co-ordinate our R and D efforts. The noble Lords, Lord Hunt of Chesterton and Lord Jenkin of Roding, mentioned that particularly. Also, in parallel with the creation of this more coherent strategy, noble Lords are seeking clarity about the status of the advisory body that has been created. Will it be given an executive power, as the noble Lords, Lord Oxburgh and Lord Krebs, have asked?
As the noble Lord, Lord Winston, has said, there seems to be an important public engagement question around nuclear power. I have been doing my own investigations into nuclear power, to which the noble Lord, Lord Jenkin of Roding, has alluded, and it has been a fascinating journey. I have visited many places and have just come back from a trip to the national nuclear laboratory at Oak Ridge in the US. This morning I was in one of the laboratories at Cambridge University that has a great heritage as regards nuclear research. However, all this seems to be slightly frozen in time. Once we were a great nation as regards innovation and pure research into nuclear physics. We have lost that. It is not just us. Other nations, the US included, have gone on to look at other, perhaps more exciting topics, around nuclear fusion or pure particle physics.
How do we get people really excited in the idea that they have a future career in nuclear fission? That is the question. A number of noble Lords have raised this, including my noble friend Lady Hilton of Eggardon. The big imperative here is the tackling of climate change, and the need to move to a low-carbon economy. If we want young people who are interested in that agenda to think “nuclear” in response to that question, we have a challenge ahead of us. It would be interesting to hear from the Government, now that they are out of their complacent mode and into active mode and looking to address this, what plans we have for a much more diverse set of technologies that is discussed in the public discourse around nuclear fission.
My noble friend Lord Hunt of Chesterton mentioned that we have in the past coupled nuclear fission for energy with military purposes, but the spectrum of technologies for nuclear is very broad. At one end it is used for medical isotopes that save people’s lives, and at the very far end you have nuclear weapons. Nuclear power sits somewhere in the middle. I wonder if perhaps a hub cannot be created where we look at the other end of the spectrum, where we bring medical uses of nuclear and power together. That might help with the public engagement question and create new frontiers. If you want to attract people into this sector, they are not going to be excited by small modifications of existing technology that is more than 40 years old. They need a new scientific frontier in which they feel that they can make their mark and have a career that will lead to all sorts of recommendations, accolades and, ultimately, jobs. What are the new frontiers in nuclear fission? That is an important question that we have to think about. We must not simply see this as a limited set of technologies, as we perhaps have in the past. There are more than 900 different reactor designs that could be conceived of; we seem to be fixated only on a narrow range. In terms of public engagement and bringing people into the sector, those are key questions.
A number of noble Lords have made reference to the Government’s proposals for the existing electricity market reforms, the noble Lord, Lord Crickhowell, among them. There is a question over this and it would be good to hear how things are proceeding. We have seen in the headlines since this report was issued a number of changes of state of some of the projects that we were expecting to go forward. Are our plans on track? If not, perhaps we could have some words on how we are going to address that.
The noble Lord, Lord Jenkin of Roding, mentioned our plutonium storage in Sellafield. There are ways of tackling this that go beyond simply repeating the Mox experiments of the past. I will not go into details, but that is a clear need for us. We tend to view, perhaps, plutonium as a liability, but there are technologies out there that could turn it into a very valuable asset. We need to be looking at that, and I hope that it will form part of the strategy.
I hope that I have not glossed over too many of the questions. This is my first time attempting to sum up a debate, and I am very humbled to be here on such an important debate with such eminent people speaking. I will finish there, if that is okay. I again welcome the report and thank the noble Lord, Lord Krebs, and his colleagues for such an excellent contribution and the effect that it has had in galvanising the Government.
The Parliamentary Under-Secretary of State, Department of Energy and Climate Change (Lord Marland)
My Lords, I congratulate the noble Baroness on her star performance at the Dispatch Box. Of course, there have been star performances overall. We have a galaxy of scientific brains here. I wore my special tie with stars on it because I knew there would be. Of course, this report is a credit to the House of Lords, on which I congratulate the committee and its chairman, the noble Lord, Lord Krebs—and, of course, for his work on the climate change committee, for which we in our department are so grateful. Of course, as you can imagine, a lot of this is way above my head. I was reflecting on my own school report the other day, and pulled it out to see what it said about my science O-level. It was one simple sentence: “This boy will not be a scientist”.
Therefore, it is no surprise that the committee did not call me to give evidence, because I am not sure I could have added much other than some of my limited business experience of a few years. One point that is fundamental to understanding this nuclear issue is that for 27 years we have had no nuclear business. We have had nothing to export and no expertise to grow because there has been no future for the younger generations that have been mentioned to work into. Because there has been no activity in the nuclear world, we have also had the brain drain. I have been quite interested in what this committee would have said had it come up with this report five years ago and am slightly depressed by some things that some noble Lords have said about the Government not doing enough.
I want to mention some of the things that we have done. We have been in power for two years, in which time we have identified and given clearance for eight nuclear sites to go ahead. We have persuaded companies to come back and invest in the United Kingdom. We brought planning back to the Secretary of State so that we can clear the decks for a lot of the planning issues that are there. We have agreed and brought into law provisions, which were drawn in this House, for two new nuclear reactors so that they can be used immediately. We have dealt with the appalling mess, which preceding Governments should be ashamed of, over the decommissioning waste that was left up at Sellafield. I have brought in a plan whereby waste is going to be exported from all of our shockingly badly managed waste pools during this Parliament. We have revolutionised the security of our nuclear power stations and have set a very clear mandate for those investing in nuclear in this country about their security requirements. We have totally overhauled the civil nuclear police force, in a process that has happened very quickly—it is not quite finished yet, but is happening now. We have announced electricity market reform and contracts for difference to set the framework for a clear pathway for investment. On decommissioning, I have persuaded the Treasury, amid the appalling economic climate that we have inherited, to invest £10 billion of new money in our nuclear waste and decommissioning. We have made very significant strides. To touch on a point made by the noble Lord, Lord Jenkin, we have committed and commissioned a business case for a Mox plant, which will solve the huge plutonium pile that we have inherited as a Government.
If that is not enough, think of the backdrop that we have inherited—Fukushima, Switzerland and Germany withdrawing from nuclear as a result, and the appalling balance sheets that E.On and RWE have as a result of Germany withdrawing. I do not need to dwell on it for too long, but we have inherited unprecedented economic conditions that have made investment into anything new by any industries, let alone by Government, extremely vulnerable and volatile. However, it is not all bad. The UK has come out of it as a world leader—not a world leader in the technology but in the way that it reacted to those horrific events at Fukushima. As the noble Lord, Lord Krebs, mentioned, we are indebted to the work of Mike Weightman, who has, in a great credit to our country, been asked to come up with a report for the future of nuclear. We noble Lords have, as a group, responded with great diligence and calmness to all the activity going on, and this report adds to the momentum that we are trying to create.
Because we have now got our inherited nuclear industry into better shape, we have started exporting our skills abroad. It was only last week that I hosted the entire Abu Dhabi nuclear organisation and their security people here. We are now signing a memorandum of understanding and supplying security expertise and waste management expertise to them. We have a draft memorandum of understanding with Saudi Arabia to do the same. Of course, as regards the continued fall-out from Japan, we are right at the forefront of advising on it. It is a question of getting that export focus and the confidence back into our industry. Despite our not being in the vanguard of new nuclear, we still have terrific expertise in this country of which we should be proud.
We readily dismiss the assertion that we are not investing enough in R and D. We have spent £500 million on R and D through the NDA in the past four years. That is not an inconsiderable amount of money. We have invested £20 million on R and D on fission alone in the past four years. Therefore, it is not all bad news. There is a lot of good news. I hope that the committee will give us some credit for that.
I now wish to deal quickly, as I know that the noble Lord, Lord Winston—
Lord Hunt of Chesterton
Is the Minister saying that the figures on this page of the report are misleading?
Lord Hunt of Chesterton
I am referring to paragraph 19, which gives comparators of government-funded research.
Lord Marland
I am merely giving the figures concerning investment by the NDA in nuclear R and D. I am very happy to supply the noble Lord with a breakdown of the figures on an annual basis, and as regards fission. I am happy to supply the noble Lord with those figures and place them in the Library.
I will not dwell for too long on some of the specific points that were raised in the debate as the Government have responded to the report. The noble Lord, Lord Krebs, has asked for a credible plan. He knows that the credible plan will be developed before the end of the year. He is absolutely right to hold us to task and to say that we should not be complacent and ensure that we have the right advisory board in place that has executive powers to create the momentum that we are determined to develop. The noble Lord mentioned the Generation IV International Forum. Professor MacKay has been asked to come up with his consideration and advice on that. Again, it is not a case of pushing it into the long grass. We will receive his considered reply and I am glad that he found favour with the committee. The NNL reports to me. I will discuss it in a bit more detail in a minute but it is developing a business case for the new facilities. I suspect that that will be positive. As we know, the ONR is considering what the position will be as regards the Nuclear Safety Advisory Committee and establishment. Therefore, I hope that within the next few months we will have a straight edge on that. We have committed to doing that. That was one of the positive things in the report. As I said, the noble Lord, Lord Krebs, is right to hold us to account and make sure that what we have said takes place.
I have mentioned Mox, to which my noble friend Lord Jenkin of Roding referred. We remain very open-minded as regards PRISM. It is not yet a proven technology. It may be so in time but the industry has on many occasions gone down following the introduction of new technologies which have had disastrous consequences, as, indeed, did the previous Mox plant. However, as I am responsible for Mox I take on board what the noble Lord says.
The noble Lord, Lord Hunt of Chesterton, talked about a plan. However, there is a 2050 plan, which is a long enough vision as far as I am concerned. The noble Lord, Lord Oxburgh, spoke about the NNL. The NNL reports to me. We have just reappointed the chairman. I have been working very closely with him and I am disappointed that the impact has not been seen.
The NNL is a profitable organisation, and it should not be dismissed but its biggest client is a government entity—the NDA. The NNL does a fantastic job; its management team is in the right place, whereas three or four years ago it probably was not. It has done a terrific job in the pay negotiations, which have given certainty to their staff for the future, and I have no doubt that there will be an increase in their activity as, wearing my other hat as the Prime Minister’s trade ambassador, we seek to promote their activity and skill abroad. My noble friend Lord Crickhowell talks about shale gas. In the past few weeks, at my instigation we have set up the office of shale gas assessment to make sure that we can establish public confidence in shale gas. We all know how difficult it is to do things on land in the UK, and it is very important that we establish public confidence.
The noble Lord rightly refers to the abundance of gas in the world—there is effectively 240 years of gas. As I have told noble Lords before, I have been in Algeria recently where they have discovered as much shale gas as there is in America, which will one hopes have long-term effects on our pricing. We have had a record number of licence applications for exploration off our coasts, so one hopes that we can develop that side of things.
The noble Lord, Lord Winston, talks about Wylfa, which is a problem, as we know and as has been well documented in the press, and we are in active negotiations with several parties. I cannot go into detail but they are positive negotiations and clearly we are determined to find a solution for Wylfa, because it is key and the second phase of our rollout. The noble Lord referred with great knowledge to education. If we can get a viable future for nuclear in this country, the jobs will flood back, and we must be there to take them. The universities—and I greatly appreciate the noble Lord’s influence on this—should be there to provide courses for them.
I am grateful to the noble Lord, Lord Broers, for his support and the work that he has done on the committee, and the discussions and input that he had before. The noble Baroness, Lady Hilton, mentioned fission, which is important and not something that we should be complacent about. It is something that we should explore, but we should explore every avenue and create the hub to which the noble Baroness, Lady Worthington, referred, as did the noble Lord, Lord Crickhowell. That is why the manufacturing and engineering capacity through the Nuclear Advanced Manufacturing Research Centre could and does act as the hub, but we must put greater importance on it to achieve the vision that we all have. I am looking at my watch because I am mindful, along with the noble Lord, Lord Winston, that we may be 1-0 down by the time we finish.
There is no doubt that we have to play catch-up, and we all understand that. This report helps us to identify the number of issues that we have and, of course, as a Government, we welcome it. It is incumbent on us all in this Room and in successive Governments to work together. The road map being put together by the Dalton Nuclear Institute and NLL, with input from the committee, has to set out our R and D capability and requirements. The Government have then to put their full weight behind it, not tiptoe behind it. It is key to future growth for this country, as has been mentioned by a number of noble Lords, and it is something very simple for us to attain. We will have the structure in place by the end of the year, and we must vest in it the authority that the committee looks for. Research and development is absolutely fundamental to the future, and as a Government we know it.
As I said earlier, we have a great deal to build on and we must not beat ourselves up. We have enormous skills and capabilities in this country in so many walks of life. We are the envy of the world for a lot of things we do. As has been demonstrated by the ONR with Mike Weightman, we have the expertise; we have Professor Beddington, who has tremendous status in the world, and we have a very good platform from which to develop.
As I said, we have a committed Science and Technology Committee and a Government committed to new nuclear, and I am very pleased to report that we have a company by the name of EDF which only today appointed Bouygues and Laing O’Rourke in a joint venture as a preferred bidder for Hinkley Point C main civil works contract. If that is not a good start, I do not know what is.
Lord Krebs
My Lords, I have very much enjoyed this debate, and would like to thank all those who have taken part in it. It demonstrates the depth of expertise in this House, which makes such a difference to the quality of debate on important issues such as the future of nuclear energy.
I also thank the Minister very much for his encouraging response. We all accept that the move ahead with a new generation of nuclear power stations and the electricity market reforms are very significant steps forward in the role of nuclear in future energy supply. That in itself underlines the urgency of ensuring that we have an adequate R and D base and skills to procure, regulate and run the new generation of nuclear power stations.
I will not go on in any detail, because the Minister has left me minus one minute to allow the noble Lord, Lord Winston, to get in front of a television. Therefore, I shall delay noble Lords for only a few seconds longer.
I sound just one note of warning about shale gas. Of course, noble Lords are right to reflect that there is a large amount of shale gas in the world—in fact, without carbon capture and storage, enough to fry us all many times over. So shale gas has to go with CCS, which is an unproven technology, whereas nuclear is a tried and tested technology. We must therefore not relinquish our commitment to nuclear because of the hope of shale gas with CCS, unless we are prepared to fry.
I reiterate what has been said by other noble Lords during this debate. We are encouraged by the Government’s response, and thank them for that, but wish to keep our eye on things. I am very encouraged that the Minister has emphasised the executive powers and continuation of the R and D board, and we will want to keep a close eye on that to make sure that the important recommendations that we have made are carried through. I thank all those that have taken part.
Tobacco: Control
(12 years ago)
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Lord Naseby
To ask Her Majesty’s Government whether they will meet representatives of non-governmental organisations, the tobacco industry and retailers to discuss tobacco control issues, publishing the minutes of such meetings, in line with both the requirements of Article 5.3 of the World Health Organisation Framework Convention on Tobacco Control and the practice of the European Commission and other member states.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
My Lords, Health Ministers consider all meeting requests carefully. Article 5.3 of the Framework Convention on Tobacco Control requires the Government to protect the development of public health policies from the vested and commercial interests of the tobacco industry. The tobacco industry is welcome to share its views on tobacco control issues with us in writing at any time.
Lord Naseby
My Lords, that is a depressing Answer. How is it possible that in a country that believes in freedom of speech, a highly regulated and legitimate industry employing thousands of people and providing millions of pounds of revenue for Her Majesty's Government can be treated quite so shabbily when the Government are developing new regulations affecting plain packaging, which affects intellectual property, and are involved in consumer safety? I ask my noble friend to think again and to receive representations. The Government may not want to agree with those representations, but surely it is the legitimate right of every elector and every employer in this country to make their representations in person to Her Majesty’s Government.
Earl Howe
My Lords, we welcome the views of tobacco companies, retailers and all those with an interest in tobacco-related policy. Ministers in other departments may have legitimate reasons to meet the tobacco industry—I understand that, from time to time, they do—but Health Ministers and Department of Health officials would have a good reason to meet tobacco companies only if a specific matter, as opposed to general issues to do with tobacco control, demanded that. We would have to think carefully whether there was a good reason.
Lord Hunt of Kings Heath
My Lords, I refer the House to my health interests in the register, in particular as president of the Royal Society for Public Health. I ask the noble Earl to continue his efforts to keep those companies at some distance from him and the Department of Health. Will he confirm that it is the view of the Government, as it was of the previous Government, that the tobacco industry promotes a product that has been described by the WHO as being proven scientifically to be addictive and to cause disease and death, and that we should have very little to do with those companies?
Earl Howe
My Lords, I can only agree with the noble Lord, Lord Hunt, that tobacco is extremely damaging to public health. There is no safe level of smoking, and as a party to the Framework Convention on Tobacco Control, the UK has an obligation to take its undertakings very seriously—which means to develop public health policy free from influence from the vested commercial interests of a very powerful industry. However, that does not mean that we close our ears to what the tobacco industry may have to say: we are very happy to hear from it in writing. That promotes transparency, which I think assists everybody in a freedom of information context.
Lord Stoddart of Swindon
But is it not hypocritical of a Government—not only this one but previous Governments—to refuse to meet the tobacco industry, which is their tax-gatherer to the extent of £10.5 billion a year? If they had any honour and really believed that tobacco is such a bad commodity they would ban it. If they believe that, why do they not?
Earl Howe
My Lords, across government we recognise the need for Ministers or officials from other government departments to meet the tobacco industry within the parameters set under the framework convention. There may be legitimate operational reasons why such meetings might be necessary—for example, Her Majesty’s Revenue and Customs sometimes meets the tobacco industry to discuss measures to reduce the illicit trade in tobacco. So it is not as if all government departments have closed their doors, but there is a very specific issue to do with Health Ministers and health officials.
Lord Rennard
My Lords, I declare my interest as an unpaid director of Action on Smoking and Health. Does the Minister recognise that any dealings he has with the tobacco industry will be with an industry that is responsible for the deaths of around 300 of its own consumers every day in this country alone, and that any claims that that industry makes must be treated with very great scepticism given its knowledge over many years of the connection between smoking and lung cancer and the addictive properties of nicotine—facts which it well knew but denied for many decades?
Earl Howe
My Lords, my noble friend makes some very powerful points and he is right. Smoking is the biggest preventable cause of death in England. It causes more than 80,000 premature deaths every year. Tobacco use is a significant cause of health inequalities in the UK. One in two long-term smokers will die as a result of smoking. That demands that we take this issue very seriously indeed.
Lord Faulkner of Worcester
My Lords, is the Minister aware that his answers this afternoon will give a great deal of satisfaction to those of us who care about public health and the pernicious effect of the tobacco industry in its attempt to subvert it? As other questioners have said, this is a unique product: it is the only legal product that kills if it is used as the manufacturers intend. Does he share the views of his Secretary of State, who told the Times last month that he wanted the tobacco companies to have “no business” in the United Kingdom? If he does, he can be assured that he will certainly have the support of many Members of this House.
Earl Howe
My Lords, if we are successful in our strategy to reduce smoking rates significantly, an inevitable consequence will be that, over time, less and less tobacco will be sold. It is smoking that we aim to reduce, which will have consequences for the sale of tobacco products. For the good of public health we are trying to arrive at a point where there is no smoking in this country, and that would mean no retail sales of smoking tobacco. Hence I fully support the remarks of my right honourable friend the Secretary of State.
Lord Ribeiro
My Lords, I am grateful to my noble friend for acknowledging the harm and damage that smoking does. Can he assure the House that the Government are equally determined to ensure that smoking will not have an adverse effect on children and children’s health in the future?
Earl Howe
The need to reduce and, we hope, eliminate the uptake of smoking by young people is one of our top priorities. I would like to thank my noble friend for his Private Member’s Bill, which will certainly enable this issue to benefit from a wide airing. We would all like to see smoking in cars with children eradicated—the health of people can be harmed by second-hand smoke. The key question for us at the moment is what is the most appropriate and workable way of protecting children from second-hand smoking. No doubt we will debate that matter when we come to my noble friend’s Bill.
Lord Foster of Bishop Auckland
Does the noble Earl ever speak to one of the best Ministers of Health that his party ever had—and, indeed, probably the best leader that they were never intelligent enough to elect—namely Kenneth Clarke, who they tell me used to get £150,000 a year from British American Tobacco? Perhaps I may just add that Rothmans was one of the best employers that I ever encountered. It was good with the employees, good with the trade unions and good with the community. It was just that its product happened to kill people—like arms dealers’.
Defence: Trident Replacement Programme
(12 years ago)
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Lord Lea of Crondall
To ask Her Majesty’s Government what is their assessment of the consequences for nuclear non-proliferation of proceeding with a Trident replacement programme.
The Parliamentary Under-Secretary of State, Ministry of Defence (Lord Astor of Hever)
My Lords, first, I am sure that the whole House will wish to join me in offering sincere condolences to the families and friends of Captain Stephen Healey of the 1st Battalion The Royal Welsh; Corporal Michael Thacker of the 1st Battalion The Royal Welsh; Private Gregg Stone of the 3rd Battalion The Yorkshire Regiment; Lance Corporal James Ashworth of the 1st Battalion Grenadier Guards; and Corporal Alex Guy of the 1st Battalion The Royal Anglian Regiment, who were killed on operations in Afghanistan recently. My thoughts are also with the wounded and I pay tribute to the courage and fortitude with which they face their rehabilitation.
I turn to the Question. The nuclear non-proliferation treaty, the NPT, does not require unilateral disarmament. Maintaining the UK’s nuclear deterrent beyond the life of the current system is fully consistent with our obligations. There is also no evidence or likelihood that others would follow the UK down a unilateralist disarmament route. We will achieve sustainable global nuclear disarmament only through a multilateral process, and the NPT represents the best means currently available for pursuing this.
Lord Lea of Crondall
My Lords, on the very sad news from Afghanistan, I am sure that everyone on this side of the House will wish to endorse the sentiments expressed by the Minister and his condolences to the five families concerned. The premise of my Question is multilateral, not unilateral. It is the Government who are, in practice, trying to ride both horses. Recent researches for the Trident Commission show that the nuclear powers will be spending $1 trillion—$1,000 billion —over the next 10 years. How does the Minister expect the non-nuclear states who have signed the non-proliferation treaty to stick to their side of the deal—the grand bargain—unless the likes of us stick to it too? Secondly, the very well-informed defence correspondent of the Evening Standard reported yesterday a “decision by stealth” to go for full Trident replacement. Why are the people of this country not entitled to a national conversation about the pros and cons of where we should be heading as we approach the so-called “main gate” decision in 2016?
Lord Astor of Hever
My Lords, we are committed to retaining the minimum credible nuclear deterrent capability necessary to provide effective deterrents, and we keep that under constant review. At the same time, we are working multilaterally for nuclear disarmament and to counter nuclear proliferation. We believe that this is the right balance between our commitment to long-term disarmament and our responsibilities to ensure our national security. I do not accept the noble Lord’s point about stealth. So far as concerns a public debate, a main gate is not expected until about 2016. A decision about how best to consult will be made nearer that time.
Lord Lee of Trafford
My Lords, I join these Benches in the earlier tribute. How seriously is my noble friend’s department studying an alternative to Trident? Where is that study up to? Does he not find it rather strange that the Secretary of State for Defence never seems to refer to that study? In this context, would he like to comment on the recent article in Der Spiegel which indicated that Israel was arming its submarine Cruise capability with nuclear capacity?
Lord Astor of Hever
My Lords, the purpose of the study is to help the Liberal Democrats to make the case for an alternative to the Trident system, as agreed in the coalition programme for government. I understand that the Cabinet Office is leading the review and it is being overseen by the Minister for the Armed Forces. It will report by the end of the year to the Prime Minister and the Deputy Prime Minister. The Secretary of State did mention it in his UQ in the other place yesterday; it was mentioned several times. On the point about Israel, we are aware of the widespread assumption that Israel possesses nuclear weapons but note that the Israeli Government have refused to confirm this.
Lord Gilbert
My Lords, is it not the case that, in order to be credible, any deterrent has to be simultaneously invulnerable and undetectable? That is clearly not the case with any Cruise system even if it is supersonic—
Lord Gilbert
I am sorry. It is also clearly not the case with any of the extraordinary arrangements that the Liberal party seems to be contemplating at the moment.
Lord Astor of Hever
My Lords, I do not want to be drawn into an argument with my colleagues but I can say that the first duty of any Government is to ensure the security of their people. The nuclear deterrent provides the ultimate guarantee of our national security, and for the past 42 years the Royal Navy has successfully operated continuous deterrent patrols to ensure that. I pay tribute to the crews and support staff who ensure the continued success of deterrent operations and to the families of all those personnel, many of whom are regularly away from home for long periods.
Lord Hannay of Chiswick
My Lords, what consideration are the Government giving, during the clearly lengthy period between now and the main gate decision on Trident, to making the nuclear dimension of our security posture less prominent than it was during the Cold War and to pursuing measures to reduce both our alert status and those of other nuclear weapon states?
Lord Astor of Hever
My Lords, this will be one of the issues that the alternative study overseen by my colleague, the Armed Forces Minister, will be looking at. As I said earlier, the study will report to the Prime Minister and Deputy Prime Minister by the end of this year.
Lord Rosser
My Lords, from the opposition Front Bench I extend sincere condolences from this side to the families and friends of the five brave members of our Armed Forces who lost their lives in Afghanistan recently in the service of our country. We support retaining our independent nuclear deterrent and are strong advocates of the nuclear non-proliferation treaty. We believe that multilateral disarmament is the route to securing the collective goal of a world free of nuclear weapons. As has been said, the Government set up a Liberal Democrat review on alternatives to the replacement of the Vanguard class strategic submarines carrying the Trident missile. The Minister has indicated when he expects the review to be published, but can he also confirm that the cost of delaying the final decision on the renewal of the Trident programme until after the next general election, purely for internal coalition government political reasons, has already cost the nation’s taxpayers £1.4 billion?
Lord Astor of Hever
My Lords, I am grateful to the noble Lord for the shared consensus that the nation’s security should be above party politics. So far as concerns the costs of any delayed decision, there are no costs at all, as the main gate decision will not be taken until 2016.
Businesses: Regulation
(12 years ago)
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The Earl of Lytton
To ask Her Majesty’s Government what progress is being made to ensure that regulation is coherent and regulatory powers are efficiently exercised in accordance with objective assessments of need, risk, proportionality and cost benefits and with regard to the impact on businesses and individuals.
The Earl of Lytton
My Lords, I beg leave to ask the Question standing in my name on the Order Paper. In doing so, I declare an interest as a chartered surveyor, with a professional involvement in many aspects of regulation.
Lord Wallace of Saltaire
My Lords, the Government are meeting their aim of not increasing the cost to business from domestic regulation. Through the Red Tape Challenge we have begun to remove or simplify ineffective, unnecessary or obsolete regulation. We recognise that how regulation is delivered is as important as the regulations themselves, which is why we have established the Better Regulation Delivery Office in Birmingham, to improve regulatory delivery and to ensure that the business voice is heard.
The Earl of Lytton
I thank the Minister for that reply, and I applaud the Government’s intentions with regard to the reduction of red tape. However, does he agree that not a week goes by without some fresh example of regulatory excess occurring, of burdensome and thoughtless use of non-recourse powers by both government agencies and other bodies? Does he further agree, first, that there should be a national protocol or code that governs the way in which regulations are formulated and applied, and secondly, that some person or body should be vested with legal power to intervene in cases of excessive or inappropriate use of regulatory powers?
Lord Wallace of Saltaire
My Lords, we all understand that there is a constant tug-of-war between those who want more regulation and those who want less. For example, what I do should be entirely unregulated because I can be trusted, what you do should be carefully controlled, and what he does should be stopped.
Baroness Scott of Needham Market
Is my noble friend aware of pilot studies that have recently been carried out in Solihull and Leicester, where local regulators have sought to reduce burdens on small businesses by streamlining the amount of information they collect, co-ordinating inspection visits and sharing data? Can he say whether the evaluation has been carried out, and when we can expect to see the results?
Lord Wallace of Saltaire
I thank the noble Baroness for that question. Yes, that is exactly the sort of thing that the Better Regulation Delivery Office is concerned about. Eighty per cent of regulatory inspection and enforcement is carried out by local authorities, so that the experiment being conducted with these authorities is intended to feed very much into improving the quality of local regulation.
Lord Foulkes of Cumnock
My Lords, is the Minister aware that the lack of regulation of certain businesses in relation to cooling towers in Edinburgh has resulted in a fatal outbreak of legionella, in which two people have died and many others have been seriously injured? Surely the Health and Safety Executive should be doing more to find out the cause of this, and to make sure that it does not happen again. Will the Minister undertake to raise this with the prosecuting authorities in Scotland, to ask why there is no fatal accident inquiry or other kind of inquiry into something that has killed two people and caused so much injury, and why we do not yet know what the cause of it is?
Lord Wallace of Saltaire
My Lords, I do not know how far that aspect of health and safety is devolved or not devolved. However, I will certainly feed that back and will write to the noble Lord if necessary.
Lord Tunnicliffe
My Lords, I congratulate the noble Earl, Lord Lytton, on the brilliant wording of his Question. He asked the Government whether they are making progress against the test of coherence, efficiently exercised regulations, and objective assessments of need, risk, proportionality and cost benefits. Will the Minister affirm that these are the criteria that the Government are using in the better regulation exercise? Will he further affirm that where removing regulations from consumers, customers and the general public is being considered, the same tests, particularly the objective assessment of need, risk, proportionality and cost benefit, will be considered before any protections are removed?
Lord Wallace of Saltaire
My Lords, I can confirm that. These are close to the five principles of good regulation as set out by Christopher Haskins in 1998 under the authority of the then Cabinet Office Minister, David Clark. We are continuing very much on a course set by previous Governments. There is a constant pull and push between demands for further regulation and the constant need to make clear whether the regulations are still needed. I was very pleased to see that one of the Red Tape Challenge repeals has included the trading with the enemy regulation, which is felt not to be so relevant today as it was perhaps 60 years ago.
UK Border Agency: Visa Applications
(12 years ago)
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Lord McConnell of Glenscorrodale
To ask Her Majesty’s Government how they will respond to the report by the chief inspector of the UK Border Agency on the handling of visa applications to the United Kingdom from Africa.
The Minister of State, Home Office (Lord Henley)
My Lords, we take the chief inspector’s recommendations seriously. We have accepted them all and have a team working to ensure that they are implemented so that we provide a high quality service for genuine applicants while ensuring that those who do not meet the immigration rules are prevented from entering the United Kingdom.
Lord McConnell of Glenscorrodale
I thank the Minister for his Answer. This is an excellent report by Mr Vine and his team, but it contains some disturbing evidence and very disappointing conclusions. It refers to the disappointing quality of decision-making, the lack of an audit trail, an inconsistent approach to the retention of documents, the manipulation of performance to meet targets, bad value judgments, the use of inappropriate language, and checks that were not performed. If this was an African country, Members of this House would be standing up asking for aid to be withdrawn. The Government need to act more quickly on these recommendations, and I would welcome an assurance from the Minister that they will act more quickly than they have in response to Mr Vine’s previous reports and recommendations.
Lord Henley
My Lords, I join the noble Lord in paying tribute to John Vine for the work that he does and for his report. I think that he has slightly overegged the pudding—if I can put it in those terms—in his criticism. The chief inspector found some very good practice in three out of four sections that he visited. He found that they were good on timelines, although I accept the criticism that there was possibly an attempt to push things forward purely to meet targets. There was obviously some criticism about accuracy.
We will obviously move forward as fast as we can on producing responses to this, but, as the noble Lord will be aware, there have been quite a number of reports from the chief inspector’s office and we are still processing some of the others. Some of the facts that he deals with in his report relate back to as early as February or even to last year. Things have moved on since then, but I can assure the noble Lord that we are treating this matter with urgency.
Lord Avebury
My Lords, neither entry clearance manager reviews nor complaints procedures are of sufficiently high quality and cannot be relied on. Will my noble kinsman say how family visitors who are to be denied a right of appeal in the future will be able to get redress without an appeal mechanism? Bearing in mind that the ability to apply the law correctly is poor, how will the Government ensure that the errors detected in this report will not happen when decisions are made under the new rules on family immigration?
Lord Henley
My noble kinsman is right to draw attention to the changes we are making, which we discussed at Second Reading of the Crime and Courts Bill. We will have further discussions on this in due course when we get to the appropriate stage of that Bill in Committee. However, I can say, and I think I said it at Second Reading, that someone who has been refused a visit visa can reapply and address the reasons why they were refused. A decision will be received more quickly as a result. Typically, that will take 15 days compared with going through an appeal, which can take eight months. On top of that, the application fee is cheaper when reapplying than when pursuing an appeal.
The Lord Bishop of St Edmundsbury and Ipswich
Is the Minister aware of an anxiety from the churches at the present time about African Christians responding to invitations to enter this country? It seems that a new economic test is being applied to them. Able, well qualified Africans are being invited to conferences in this country and endorsed even by bishops and the Archbishop of Canterbury, but are being turned down because their personal income is low. As most African clergy live on sacrificial stipends that are intermittently paid, we are wondering whether we can ever invite anyone again from Tanzania.
Lord Henley
My Lords, I will look very carefully at this. I cannot believe that someone who is being endorsed by the Archbishop of Canterbury or, for that matter, by any right reverend Prelate, could be turned away. I would want to look at that and at the particular circumstances to which the right reverend Prelate has referred. Certainly, we would not want that to be the case.
Baroness Smith of Basildon
My Lords, as the Minister has accepted in his responses to my noble friend Lord McConnell and the noble Lord, Lord Avebury, the findings in this report impact on the Government’s proposals on family visa applications and appeals in the Crime and Courts Bill. What concerns me most about the report is when John Vine says that despite his previous recommendations to help improve the agency, he has seen little progress in a number of areas. He says:
“This is especially frustrating considering the agency has adopted the recommendations, and yet I continue to identify the same issues”.
The quality of decision-making appears to be a key issue. The Minister says he wants to act as fast as he can, but have the Government identified the reason why so little action has been taken to correct problems found in the past? Is the problem a lack of will or a lack of resources?
Lord Henley
My Lords, it is neither a lack of will nor of resources, and we are still trying to push these things on as fast as we can. The noble Baroness quite rightly refers to the Crime and Courts Bill; we are in the middle of its Committee stage and we will discuss those provisions when we get to them some time in July. However, it is right to make the point that we think we will be able to provide a better service to a number of people by withdrawing those appeal procedures as a result of them then being able to apply again.
I want to make clear, as I made clear in my original response to the noble Lord, Lord McConnell is that we take these findings very seriously indeed and we will continue to push them forward. However, the chief inspector produces four or five different reports a year and it takes time to push them forward. He is talking about issues that he looked at back in February, obviously changes have occurred since then and we hope things are better as a result of actions we took following his report. Obviously some things have moved on since then.
Lord Dholakia
My Lords, will the Minister take into account the fact that when a visa application has been refused, the individual’s reapplication should not be considered by the same entry clearance officer the second time around?
Lord Henley
I cannot give any guarantee that the application will be looked at by a different officer, but in most cases it obviously will be looked at by a different officer because the situation will have moved on.
Lord Tomlinson
As the Minister referred to the noble Lord, Lord McConnell, as having perhaps “overegged the pudding”, can he tell us which particular egg that the noble Lord sought to throw should be excluded from that mix?
Lord Henley
The point that I was trying to get over to the noble Lord, Lord McConnell—and I think the noble Lord, Lord Tomlinson, knows this—is that he was overemphasising all the criticisms in the report without underlining the fact that Her Majesty’s inspector on these matters had pointed out that three out of the four sections he visited were performing pretty well and that he found good practice. There obviously were criticisms and, quite rightly, noble Lords opposite and the Government will focus on those criticisms. I just want to say that it was not all that bad.
Trusts (Capital and Income) Bill [HL]
The Chairman of Committees
That, as proposed by the Committee of Selection, the following Lords be appointed to the Special Public Bill Committee on the Trusts (Capital and Income) Bill [HL];
L Beecham, L Davies of Stamford, B Drake, L Faulks, V Hanworth, L Higgins, L Hodgson of Astley Abbotts, L Lloyd of Berwick (Chairman), L McNally, B Northover, B Wheatcroft;
That the Committee have power to send for persons, papers and records;
That the evidence taken by the Committee shall, if the Committee so wishes, be published.
Gambling Act 2005 (Amendment of Schedule 6) Order 2012
(12 years ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Baroness Verma
That the draft order laid before the House on 30 April be approved.
Relevant Document: 1st Report from the Joint Committee on Statutory Instruments, considered in Grand Committee on 13 June.
Justice and Security Bill [HL]
(12 years ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Advocate-General for Scotland (Lord Wallace of Tankerness)
My Lords, the United Kingdom’s security and intelligence services do superb work in keeping us safe. But if we are to be true to the democratic values that they fight to defend, it is right that their actions should be subject to proper judicial and parliamentary scrutiny.
Every Government must find a way to resolve the competing demands of liberty and security. It is one of the most important challenges to government, and one of its key responsibilities. We need to consider with great care how we strike that balance. I can assure your Lordships that in bringing forward the Bill, Ministers have sought to exercise the care required to strike that balance.
It is because the Government are not satisfied that our system is delivering this scrutiny as well as it should be that we are bringing forward the Justice and Security Bill. The Bill seeks to address three widely recognised problems. First, a number of civil cases cannot be heard by a judge because they hinge on national security-sensitive evidence that cannot be disclosed openly. At present the Government’s only options are to ask the courts to strike out such cases as untriable or to try to settle them, often for large sums of money, even where they believe that a case has no merit. Secondly, a remedy in intellectual property law has recently been extended to allow someone bringing a claim outside the United Kingdom to apply to a court in London to force disclosure of intelligence information held by the British, including information provided by our allies. This is already seriously undermining confidence among our most important partners, including the United States. Thirdly, oversight of the intelligence community lacks independence from the Executive and has too limited a remit to ensure full and effective accountability.
The response to these problems that I am outlining today has its origin in the Justice and Security Green Paper published last year and noble Lords will be aware that the proposals it contained were the subject of extensive debate by the public, stakeholders and the media. The Government listened carefully to the views received during that consultation. While many respondents acknowledged the underlying problems that our proposals were trying to sort out, there was also considerable concern that our plans for closed material procedures—so-called CMPs—were excessively broad in scope and risked undermining this country’s proud tradition of civil liberties.
The Government’s position has always been that protecting the public should not come at the expense of our freedoms. We have therefore extensively revised our proposals by narrowing their scope and strengthening safeguards. The case I want to make today is that the plans in the Bill are sensible, proportionate and targeted at a genuine and serious problem.
Lord Clinton-Davis
I take it that the noble and learned Lord is aware of the severe criticisms launched by Mr Andrew Tyrie, the Member of Parliament for Chichester. He has come to the conclusion that the proposals in the Bill,
“offend the principle of open justice”.
When the noble and learned Lord says that these issues have been ventilated, has he taken into account the views that have been expressed?
Lord Wallace of Tankerness
My Lords, I can assure the House that we are aware of the concerns expressed not just by Mr Tyrie but by a range of people during the consultation and subsequently. We have sought to wrestle with those concerns. I indicated that it is the age-old challenge between trying to balance the interests of security and liberty. I can assure the House that in presenting the Bill we have sought to wrestle with these issues and to come forward with a set of proposals that are sensible, proportionate and targeted at a genuine and serious problem.
I begin with the important matter of improved parliamentary and independent oversight of the security and intelligence agencies. The Intelligence and Security Committee does an excellent job of overseeing the administration, expenditure and policies of the agencies. I know that members of the committee are present here today and have put down their names to speak in the debate. However, the ISC operates within arrangements that were established by Parliament in 1994. In the past 18 years, and particularly since 9/11, the public profile and budgets of, and indeed operational demands on, the agencies have significantly increased, but there has been no change to the statutory arrangements in place for oversight.
Although in the past the ISC has overseen operational matters, it has done so relatively infrequently. The ISC has no explicit statutory locus to oversee such matters. Its statutory remit is also limited to oversight of the security and intelligence agencies, although it has long heard evidence from the wider intelligence community. The ISC currently reports only to the Prime Minister, who appoints its membership, and there are some limitations to the way it works. The heads of the security and intelligence agencies can, in certain circumstances, withhold information from it. The ISC is wrongly perceived by some to be a creature of the Executive, not least as it is funded and staffed by the Cabinet Office. We believe it is time to put the ISC on a much stronger footing and enhance its independence to strengthen the very valuable work it has done so far and give Parliament more effective oversight of the intelligence and security agencies.
Part 1 of the Bill extends the ISC’s statutory remit, clarifying that it will in future be able to oversee the agencies’ operations. It will also in future report to Parliament as well as to the Prime Minister. Its members will be appointed by Parliament, after nomination by the Prime Minister. In parallel, the Government intend to press ahead with the Green Paper proposals that the ISC is funded by Parliament, accommodated on the Parliamentary Estate and that its staff will have the status of parliamentary staff. Finally, the power to withhold information from the ISC moves to the Secretary of State responsible for that agency; in other words, to a democratically accountable representative. These may sound like technical changes but together they will help to ensure that we have effective, credible and genuinely independent oversight of the activities of the security and intelligence agencies, renewing public confidence that someone is watching the watchers on their behalf.
The provisions of the Bill that have to date probably prompted the most comment are in Part 2, including the use of closed material procedures. The Government are strongly committed to open and transparent justice. However, the courts have long accepted that sensitive intelligence material—for example, the names of security agents or information about techniques used by intelligence agencies—cannot be disclosed in open court. In the famous case in the last century of Scott v Scott, Viscount Haldane in the House of Lords acknowledged that exceptions to that principle of open and transparent justice,
“are themselves the outcome of a yet more fundamental principle that the chief object of courts of justice must be to secure that justice is done ... As the paramount object must always be to do justice, the general rule as to publicity, after all only the means to an end, must accordingly yield”.
Under current rules, the only available way of protecting sensitive intelligence material which would otherwise be disclosed, and which would damage the public interest if disclosed in open court, is to apply for public interest immunity. If such an application is successful, the result is the exclusion of that material from the court room. An example of the difficulties which may arise is where a case is so saturated in this type of sensitive material that the PII procedure removes the evidence that one side, either defendant or claimant, requires in order to make its case. The options, then, are not attractive. In judicial reviews, the Government may find themselves unable to defend an executive action taken to protect the public—for example, the exclusion from the United Kingdom of a suspected terrorist or gang lord—simply because they cannot explain their decision when defending it. Equally, claimants may find themselves unable to contest a decision taken against them. This is what Mr Justice Ouseley observed in the recent case of AHK and others where claimants were challenging decisions to refuse naturalisation. His Lordship noted that if the alternative to a CMP is,
“that the claimant is bound to lose, no matter how weak the grounds against him, there is obvious scope for unfairness towards the claimant”.
In claims for civil damages, typically against the Government, the defendant is either forced to seek to settle the case by paying out compensation, assuming the other side is willing to agree to settle, or it has to ask the court to strike out the case as untriable. The result is that these cases are not heard before a court at all. There is no independent judgment on very serious allegations about government actions. The recent settlement of the civil damages claims brought by the former Guantanamo Bay detainees underlines this point. The evidence on which the Government needed to rely in order to defend themselves was highly secret intelligence material, which could not be released in open court.
Lord Morris of Aberavon
I am grateful to the noble and learned Lord. The use of public interest applications is familiar to many of us, even in quite ordinary run-of-the-mill cases brought before a recorder. What is the best estimate the noble and learned Lord can give of the volume of applications where something more is required such as the closed material procedures now proposed?
Lord Wallace of Tankerness
My Lords, I am cautious about hazarding the estimate that the noble and learned Lord asks of me. In the Green Paper, we indicated that the kind of cases that we were looking at were 27 current claims. The most recent figures that I have, as of yesterday, show that the numbers have fluctuated somewhat since October 2011 at the publication of the Green Paper. Currently, there are estimated to be 29 live cases, which were of the type cited in the Green Paper. To give an estimate of the number of cases where sensitive information was central to the case, based on current cases handled by the Treasury Solicitor, there are 29 live cases but they exclude a number of appeals against executive actions that are currently stayed. There are 15 civil damages claims; three asset-freeze judicial reviews; seven exclusion judicial reviews; four lead naturalisation judicial reviews; and around 60 further naturalisation judicial reviews stayed behind these cases. I hope that gives the noble and learned Lord and the House an idea of the kind of figures that we are dealing with where we believe that sensitive information is central to the case, based on the estimate of the Treasury Solicitor at this time.
The recent settlement of the civil damages claims brought by the Guantanamo Bay detainees underlines the point that I was making. The evidence which the Government needed to rely on in order to defend themselves was highly secret intelligence material, which could not be released in open court. One option open to the Government would have been to claim PII over that material. If the PII claim had been successful, the Government would have succeeded in excluding a very large quantity of material, but material that they would have wanted to rely on to defend their position. The only practical option was to settle the claims for significant sums without admitting liability.
Although the numbers of these cases are small, they often contain extremely significant allegations about the actions of the Government and the security and intelligence agencies. There is a real public interest in being able to get to the truth of such allegations. Indeed, I think it is arguable to say that the rule of law is supported by courts being able to reach determinations on such matters. Although such settlements are often made without any admission of liability being made, as we all know, mud sticks. Allegations have been made in public that have never been examined or rebutted, and many people choose to believe that they are true. The damage to the reputation of this country can be immense and those unrebutted allegations can be used by individuals seeking to garner support for terrorism in retaliation for perceived wrongdoing by this country.
This is the backdrop against which our plans to allow material to be heard in court via CMPs should be seen.
Lord Thomas of Gresford
Perhaps my noble and learned friend would explain how the public would be more informed and the allegations of wrongdoing on the part of the Government would be exploded by the use of CMP procedures when, by definition, it would all remain secret.
Lord Wallace of Tankerness
My Lords, the point I was seeking to make is that if one goes down the route of PII, the issues will never be tested at all. It may be that so much material has to be withheld that it is not possible for a determination to be made and the Government may be forced to settle. I do not believe that that enhances the confidence of the public in the security services.
It is an irony somewhat overshadowed by the controversy over CMPs that, before recent developments in case law, courts were themselves successfully using this approach in civil cases where sensitive evidence was involved to ensure it could be heard but also considered and tested. For example, a peace campaigner called Maya Evans sought to challenge United Kingdom policy in relation to the transfer to the Afghan authorities of suspected insurgents detained by UK Armed Forces in the course of operations in Afghanistan.
The Marquess of Lothian
I take the noble and learned Lord’s argument and I accept the need for having the closed material procedures in relation to information of sufficient sensitivity, but why would equivalent information of the same sensitivity not require the same protection in an inquest?
Lord Wallace of Tankerness
My Lords, as my noble friend knows, these issues were canvassed in the course of the consultation. A considerable number of representations were received indicating that this would not be appropriate in the context of inquests and, of course, PII would apply and would be available. The Government listened to those representations and responded to them by not having inquests covered within the ambit and scope of the Bill.
I was explaining the question on that particular case. An allegation was made that people transferred into Afghan custody were and continue to be at real risk of torture or serious mistreatment and that the practice of transfer was therefore unlawful. There was a CMP for part of the proceedings, with the consent of all parties. After examining all the relevant evidence, the judge concluded that transfers into Afghan custody at two sites could continue only provided that a number of additional safeguards were observed, and that a moratorium on transfers to another site should continue until there were clear improvements that would reduce the risks of mistreatment. In his judgment, Lord Justice Richards paid tribute to the way that the case had ultimately been conducted by all concerned and the Secretary of State’s conscientious approach to disclosure.
Lord Campbell-Savours
Before the Minister moves on and following the question asked by the noble Marquess, Lord Lothian, why were inquests singled out? There must be some explanation.
Lord Wallace of Tankerness
I have indicated that there was a consultation. There was strong representation that it would not be appropriate to have this kind of procedure in inquests. My main line of defence is that we listened to the consultation and responded to it. I believe that the right judgment was made.
The Minister of State, Ministry of Justice (Lord McNally)
I draw the attention of noble Lords to the Companion which says that,
“frequent interventions should not be made, even with the consent of the member speaking”.
This has the taste of a House of Commons debate about it. The convention of this House is not for frequent interventions.
Lord Wallace of Tankerness
Maybe it is an old habit from the House of Commons that is making me reply.
Lord Lester of Herne Hill
Is not the answer to those noble Lords who have asked these questions quite simply that the right to life under the European convention requires particular requirements of openness and transparency, and therefore there is a strong case for separating inquests anyway?
Lord Wallace of Tankerness
There is a strong case, and having heeded the representations, we took that particular route.
I was trying to explain that CMPs have been part of our legal system sometimes by agreement in civil cases and that is compatible with the interests of justice, so why bring forward the Bill? The reason is that the Supreme Court last year, in a case called Al Rawi, held that a court is not entitled to adopt a closed material procedure in ordinary civil claims for damages. The court held that it was for Parliament, not the courts, to decide where closed material procedures should be available. The consequence has been that we are no longer able to rely on the ability of the courts to find their own way through this difficult issue of disclosure.
Hence the provisions in Part 2 of the Bill, which seek to respond to this challenge in a proportionate and targeted manner. It makes CMPs available in narrow circumstances—namely, in civil proceedings in the High Court, Court of Appeal and Court of Session, where material is relevant to those proceedings, disclosure of which would damage the interests of national security. Importantly, it will be only after the Secretary of State has considered whether a claim for public interest immunity should be made. In line with a recommendation of the Joint Committee on Human Rights, Part 2 also allows for the transfer of judicial reviews of exclusion, naturalisation and citizenship decisions to the Special Immigration Appeals Commission, which has well established closed procedures.
Under the plans, where the Secretary of State applies for a CMP in civil cases, it will be for a judge to declare whether a CMP may be used. The judge will make this declaration on the basis only of national security considerations, not crime or international relations. Inquests, as we have indicated, have been excluded, and we were never intending to make CMPs available in the criminal courts.
Let me stress the safeguards that will apply. The Secretary of State will first have to consider whether the material can be dealt with by making a claim for public interest immunity. This will be a legally binding obligation and failure to comply can be judicially reviewed in the courts. The Secretary of State will then apply to a judge, and that judge will declare whether in principle a CMP may be used. That judge is the decision-maker. He or she must be satisfied that there was material relevant to the case, the disclosure of which would damage national security.
Once the judge has taken a decision in principle that a CMP may be used, a second exercise will take place in relation to the individual pieces of evidence which he decides are national security sensitive, following representations by a special advocate whose job is to act in the interests of the claimant. The judge will determine the treatment of each piece, whether redacting individual names or sentences would allow the evidence to be heard in open, or whether a summary of the evidence withheld must be made available to the other party and so on. The Bill does not upset the established position that it is for Ministers to decide whether to claim PII. Consequently, it should be the responsibility of the Secretary of State to apply for a declaration to the court that a closed material procedure may be used.
Some suggest that the Government may choose between claiming PII and applying for a closed material procedure opportunistically. Some say that the Government would apply for a closed material procedure where the material was helpful to the Government on the basis that the material could be considered by the court and that the Government would claim PII where the material was unhelpful so that, if successful, the PII claim would exclude that material from consideration.
It is not a realistic concern. The intention behind the closed material procedure proposals is precisely so that allegations made against the Government are investigated and scrutinised by the courts. The intention is that all relevant material—helpful or unhelpful—will be before the courts. It is hard to see that a judge assessing a PII claim would conclude that material should be excluded if the Government were seeking cynically to use PII to exclude material that undermined its case when a closed material procedure was available as an alternative.
The Bill makes absolutely clear that the court must act in accordance with the obligations under Article 6 of the European Convention on Human Rights—the right to a fair trial. The overall effect will be that in practice all evidence currently heard in open court will in consequence of the CMP provisions continue to be heard in open court, including allegations against the state. In reality, claimants will receive as much information where there is a CMP as they would following a PII exercise.
A number of respondents to the consultation made the points that CMPs are a departure from the tried and tested fundamentals of open justice. I agree. No Government propose measures in this area lightly. However, as we have seen, CMPs are already used in our justice system, and have been endorsed by both domestic and international courts for the good reason that they provide a fairer outcome when the alternative is simply silence—no judgment at all and no questions answered.
Briefly, I move on to the final set of provisions in the Bill—namely, ensuring the protection of our intelligence-sharing relationships and our domestically generated intelligence through reform of an area of law that is known as the Norwich Pharmacal jurisdiction. The Norwich Pharmacal jurisdiction grew up in the sphere of intellectual property law, where it is used to force a third party who—however innocently—is mixed up in suspected wrongdoing, to disclose information that a claimant feels may be relevant to a case that they are bringing elsewhere.
However, in 2008 a particularly innovative group of lawyers sought, in the case of Binyam Mohamed, to extend this jurisdiction to argue disclosure of sensitive intelligence information held by the British, including that provided in confidence by our allies. A specific right to the disclosure of intelligence services information has been ruled out by Parliament in the Freedom of Information Act and the Official Secrets Act. Yet, since Binyam Mohamed, there have been no fewer than nine attempts to use this jurisdiction in relation to sensitive information, including secret intelligence.
What is particularly troubling about this area of law is that, as the purpose of the proceedings is solely to gain disclosure of material, the Government do not have the option to withdraw from or settle the proceedings. If a judge orders disclosure, there is no option but for the Government to release the secret intelligence. Those who cannot keep secrets soon stop being told secrets. We expect our allies to protect intelligence material that we share with them from disclosure, and they expect the same from us. It is a regrettable fact that uncertainty about our ability to properly protect classified information provided by foreign Governments has undermined confidence among key allies, including the United States. In some cases, measures have already been put in place to regulate or restrict intelligence exchanges.
This is not just about material from overseas partners. We also need to protect from disclosure United Kingdom-generated sensitive material, which, if disclosed, could reveal the identity of United Kingdom officers or their sources and capabilities. To give but one example, not only could disclosure of sensitive intelligence derived from a UK human source jeopardise an ongoing intelligence dividend from that source, it could also blow the source’s cover, putting his or her life at risk. Our intelligence agencies cannot operate effectively if they cannot offer their sources protection. Norwich Pharmacal is the wrong tool for national security cases. The Government must regain the discretion to decide what the best way of assisting someone should be. Unless we address this situation robustly, the UK will continue to be seen as a soft touch by those wanting to get access to sensitive information. Our allies will—
Lord Martin of Springburn
I am sorry that the noble and learned Lord is upset about this interruption—
Lord Martin of Springburn
Yes, me of all people, but I am entitled to seek information. The noble and learned Lord mentioned the Freedom of Information Act and people seeking access through that Act. Is it the case that someone living abroad can make an application under the Freedom of Information Act to information officers over here, including those in Parliament? I hope that I have been brief enough for the noble and learned Lord.
Lord Wallace of Tankerness
I cannot give an immediate answer to that question, but I suspect that it may be the case. The important point in this context, as I have just indicated, is that Parliament has decided that, under the Freedom of Information Act, a specific right to the disclosure of intelligence services information has been ruled out, irrespective of where the applicant comes from.
That is why the Government intend to legislate to exempt from disclosures under a Norwich Pharmacal application material held by, originating from or relating to an intelligence service defined as including the intelligence agencies and those parts of Her Majesty’s Armed Forces or the Ministry of Defence that engage in intelligence activities, or if the Minister has certified that it would cause damage to national security or international relations if it were disclosed. I seek to reassure the House that these measures will have no impact on claims that the Government or the security and intelligence agencies have been directly involved in wrongdoing; nor do they prevent someone enforcing their convention rights, and nor do they exempt the agencies from their disclosure obligations in other civil cases. We are not seeking to abolish an ancient right. The Norwich Pharmacal jurisdiction has existed only since the 1970s and it has been found to apply in national security cases only since 2008. Our reforms will affect the jurisdiction only in so far as it applies to national security and international relations.
In conclusion, the Bill seeks to reshape the way we scrutinise the actions of our security and intelligence agencies both inside and outside the courts. The Bill raises significant issues about how we can best achieve that scrutiny, and what should be the respective roles of Government, Parliament and the courts. As I have said, the Green Paper that preceded this Bill prompted much public debate. The Government listened carefully to that debate and have responded by amending their proposals, including taking up a number of suggestions made in a useful report published by the Joint Committee on Human Rights, a number of whose members I am sure will contribute to this debate. There has also been an important report from the Constitution Committee, to which we intend to respond soon.
I think that the provisions in this Bill are a measured and proportionate response to the challenges I described earlier. We need to ensure that the courts can secure that justice is done. We must maintain the rule of law and ensure that proceedings are fair for all parties to the case. We must protect information that is shared with us in confidence, particularly if it would inhibit the ability of our security and intelligence agencies to keep us all safe if there is a risk that it could be disclosed, and we must make sure that those we trust to oversee the work of the agencies on our behalf have the powers to do an effective job and are able to command public confidence.
I look forward to what I am sure will be a thorough and instructive debate both today and as we proceed into Committee on how we meet those challenges and seek to balance the age-old tension between liberty and security. I commend the Bill to the House and I beg to move.
Lord Beecham
My Lords, the House will join me in congratulating the noble and learned Lord on a typically lucid exposition of a very complex Bill. In his closing speech at the end of the Second Reading debate on the Crime and Courts Bill, the noble Lord, Lord McNally, made a gracious but utterly misguided reference to me as a “distinguished lawyer”. I have no pretensions whatever to such a description. Fortunately, particularly having regard to the Bill we are debating today, this House is not lacking in expertise of the highest order, including as it does eminent legal practitioners, former senior members of the judiciary and others with ministerial, political or professional experience of the intelligence and security world. The latter category embraces, among others, six Members who have served on the Joint Committee on Human Rights, whose report on the Government’s Green Paper is required reading, especially for those who, like myself, are seeking to get to grips with this hitherto unfamiliar world.
The very Title of the Bill, juxtaposing as it does two desiderata, justice and security, reflects the dualism with which the legislature has to contend, calibrating as we must the balance between two principles which are potentially in conflict. By its nature, this is a topic in which, as the Government proclaimed at the outset, consensus is highly desirable, if not essential. The Joint Committee managed to achieve just such a consensus on the Government’s original proposals, as did the Constitution Committee. It is perhaps unfortunate that the Government chose to proceed from the Green Paper straight to a Bill without first seeking to achieve that broad consensus they had adumbrated, but we are where we are.
I pay tribute to the Government for responding to some of the concerns raised by the Joint Committee and others, notably in relation to restricting closed material procedures to matters of national security and to abandoning proposals for secret inquests, although that may not be universally approved. However, the question for the House to consider is whether the Government have gone far enough—in particular, in relation to making the case for the proposed extension of closed material procedures to further categories.
The process appears to bear the hallmark of the Lord Chancellor, a larger-than-life figure whom his party, many of us think, twice mistakenly rejected as its leader. He is what one might describe as a practitioner of the John Lewis-style of politics—never knowingly understated—and is perhaps inclined to be a little cavalier. Let us consider paragraphs 26 and 27 of the Joint Committee report, in which the committee commented on the Government’s initial refusal to publish the responses they received to the Green Paper—perhaps an ironic echo of the closed material procedure, which is one of the most controversial parts of the Bill. On the claim that “improved executive accountability” would be advanced by the Government’s proposals, the committee comments in paragraph 212:
“With the exception of the ministers, not a single witness in our inquiry suggested that the proposals in the Green Paper will improve the accountability of the executive”.
Let us consider further the initial refusal to disclose to the independent reviewer of terrorism legislation papers relating to the 20 cases on which the Government purported to rely in support of their proposals.
My noble friend Lady Smith will deal with Part 1 of the Bill when she winds up for the Opposition. In relation to that part, therefore, I confine myself to asking whether the changes proposed in relation to the Intelligence and Security Committee, some of which are welcome, do enough to strengthen parliamentary oversight of intelligence and security activities and, in particular, whether the membership criteria should not perhaps reduce the role of former Ministers and provide for limited terms of office so as to underline the committee’s independence of both the Executive and the relevant services, and to allow some refreshment of that membership from time to time. In raising those questions, I of course pay tribute to present and past members of the committee who have sought—and seek—conscientiously to fulfil their role.
I now turn to the most difficult parts of the Bill; first, those dealing with closed material procedures—or applications, in the first instance—under which the Secretary of State may apply to the court for an order in any civil case excluding the disclosure of evidence to a party except to a special advocate, if such disclosure would be damaging to national security. There is a broad view that this effectively will tie the hands of the trial judge.
The second area relates to the so-called Norwich Pharmacal cases, about which the noble and learned Lord closed his opening address. As he indicated, these prevent the disclosure of “sensitive information” which the Secretary of State certifies it would be contrary to the interests of national security or international relations to disclose. In those cases, a party seeks an order for disclosure of evidence in order to pursue or defend a case against a third party, possibly outside the jurisdiction, as in the cases that have attracted attention thus far, where the defendant—that is, the Government—is to some degree mixed up in events; perhaps quite innocently they have come into possession of information. We certainly agree that there is an issue here that needs to be addressed and a case for regularising the situation created by the Norwich Pharmacal cases. The question, of course, is whether the Government’s approach is proportionate.
In that connection, Clause 13(3)(a) and (d) appear to go much further than would, on the face of it, be desirable, barring as they do disclosure of any information held by or relating to the intelligence service. That is a very broad definition. Again, it is surely necessary for the role of the judge in deciding on an application not to be more apparent than real so as to ensure a strong judicial check on the information to be exempt.
Of course, it is natural and reasonable for the intelligence and security services to operate in these matters on the precautionary principle. However, it is surely a step too far to accept that their view must be unchallengeable in all circumstances. After all, elements within the service, although not the service itself, have occasionally demonstrated a capacity to follow their own inclinations, sometimes of a political nature, whether of the left or right. One has only to think of the generation of Soviet agents recruited from Cambridge—I am relieved to say—in the 1930s, or the Zinoviev letter of the 1920s and the campaign waged against Harold Wilson by elements within the Security Service.
Even more important are the questions about the definition of national security and of sensitive information —obvious enough in military cases, but what else might the terms encompass? Should concern for international relations prevent the disclosure of information tending to show unlawful conduct—for example, the use of torture by a foreign power? How are the interests of justice to be preserved and, moreover, to be seen to be preserved? This is an area to which the Joint Committee report drew attention in its closing section. It referred to:
“The impact on media freedom and democratic accountability”,
and drew particular and highly critical attention to the Government’s position, to which the Government’s response was, frankly, extremely weak and unconvincing.
The Joint Committee rightly called for legislation to facilitate the admissibility of intercept evidence to be brought forward urgently. However, its main thrust was to criticise the approach to closed material procedures and the Norwich Pharmacal cases. It makes a strong case that the need to extend closed material procedures beyond the very limited categories to which it applies at present—for example, as the noble and learned Lord reminded us, the Special Immigration Appeals Commission, and there some other areas too—is not based on robust evidence. Further, it argues that the Government are wrong to discount the public interest immunity procedure, under which, as the noble and learned Lord indicated, the Government can always decide not to disclose their arguments, albeit potentially at the cost of having to settle or lose their case.
It is surely not good enough for the Government to plead in their response to the committee that the public would prefer the Government to be able to defend themselves and allow cases to continue to judgment, rather than be settled at greater expense to the public purse. That is to place too heavy a weight on financial considerations, your Lordships might think. In any event, the committee found a,
“troubling lack of evidence of any actual cases demonstrating the problem”,
which the Government seek to solve. It was also concerned by the vagueness of the evidence on which they rely.
In relation to the closed material procedure, the whole process conflicts with the words of the noble and learned Lord, Lord Kerr. He said:
“The central fallacy of the argument, however, lies in the unspoken assumption that, because the judge sees everything, he is bound to be in a better position to reach a fair result. That assumption is misplaced. To be truly valuable, evidence must be capable of withstanding challenge”.
He continued:
“I go further. Evidence which has been insulated from challenge may positively mislead. It is precisely because of this that the right to know the case that one’s opponent makes and to have the opportunity to challenge it occupies such a central place in the concept of a fair trial”.
The committee clearly leans towards a modified public interest immunity procedure as an alternative, perhaps including redactions, confidentiality, restricted publicity and “in private” hearings. I commend further consideration of that approach.
In relation to the Norwich Pharmacal cases, the committee rejects the proposed effective ouster, as some would see it, of the court’s jurisdiction to authorise disclosure. Its preferred option is for the public interest immunity procedure to be applied where issues of national security arise in cases where a party seeks disclosure of evidence material to his case in another jurisdiction. In paragraph 192 of its report, the committee sets out how this might be achieved. It suggests, as an alternative to other proposals, a rebuttable presumption against disclosure of national security-sensitive information, a test for when the presumption can be rebutted and an agreed list of factors which the court should take into account in determining whether the presumption is to be rebutted.
As I have indicated, there is certainly here an issue which needs to be addressed and a case for regularising the Norwich Pharmacal situation. Again, the question is whether the Government’s approach is proportionate and whether the evidence on which they base it is robust. There is a case for qualified exemptions to the residual disclosure jurisdiction, but the House will wish carefully to scrutinise the detail of the Government’s proposals and, again, so far as it can, the evidence on which they are based.
In respect of closed material procedures, the question is whether under the Bill as it stands we would end up with a major incursion into the right to a fair trial of issues before the courts, impacting on civil justice rather than preventing damage to national security, which can be and has been achieved in other ways. The Bill’s provisions, after all, represent a fundamental change to our system of civil justice and to the rights of parties. Even the parliamentary website headlines today’s debate as being about “secret hearings”—a somewhat Kafkaesque description which may nevertheless strike a chord with Members of your Lordships’ House.
We must also take note of the independent reviewer’s statement that he,
“deprecated the tendency of Ministers to characterise their CMP proposals as justified by national security … as a scare tactic in order to achieve its unrelated proposals on secret civil trials”.
Crucially, he added:
“Existing PII procedures do not risk compromising foreign intelligence. The secret trial proposals must stand or fall by their ability to produce just outcomes”.
Although Mr Anderson was eventually allowed limited access to some case material and concluded that there is a case for extending CMP, again crucially, he remains convinced that the decision is one for the judge and not the Executive—a point made forcefully by Mr Andrew Tyrie, to whom my noble friend Lord Clinton-Davis made reference, in his analysis of what he described as,
“the inadequacy of the Government’s concessions”.
In conclusion, in the week in which we welcome Aung San Suu Kyi to address both Houses, I very much look forward to listening to the diverse arguments and opinions of Members of this House as we debate these complex and difficult issues of jurisprudence and public policy. I know that in the noble and learned Lord, Lord Wallace, we have a thoughtful and sensitive interlocutor, and I hope that, collectively, we might reach a satisfactory conclusion. So far, about the only substantial consensus appears to be a consensus of the concerned, ranging across the political divide—as exemplified by articles in this week’s House Magazine from the noble Lord, Lord Lester, and the noble Baroness, Lady Berridge, and a powerful critique from Mr Tyrie—to civil liberties organisations, the Law Society and nearly all the special advocates. It is now for the legislature to seek to build a consensus around such change as can be justified as being essential to protect the public, for which the evidential bar is necessarily high and in which the rights of the citizen or claimant are adequately protected. In that process, your Lordships’ House is perhaps uniquely well placed to lead the debate.
Lord Mackay of Clashfern
My Lords, I disagree with the noble Lord, Lord Beecham, about whether his qualifications entitle him to address this House. He is an extremely experienced member of the legal profession who has considerable experience at the heart of the legal profession.
The Bill deals with justice and security. It deals with those two in the opposite order to the title. Although I had the responsibility of introducing the first Bill to Parliament to regulate the security services, I do not propose to get involved in that part of the Bill, but rather in the parts that deal with justice—in particular, Clauses 6 and 13.
I can claim some experience, a long time ago, in the area of public interest immunity. I had the responsibility of informing this House in 1996 that the Government had decided to depart from the old distinction between class cases and content cases in relation to public interest immunity and to concentrate on only one type of public interest immunity: where the specified documents could damage the public interest if disclosed. I am humbled by the remembrance that the junior in one of the cases on public immunity I took before the Appellate Committee of this House has just retired as a member of the Supreme Court. That shows that that was not yesterday.
The doctrine of public interest immunity is a doctrine of substantive law which has a long history and was recognised by Parliament more than once, but particularly in the Crown Proceedings Act. The way the system operates is that the Secretary of State asks for a public interest immunity certificate to be issued in respect of material which would otherwise be disclosed or matters which would be answered orally. He has to decide whether, in his judgment, on the facts of the particular case, those disclosures would damage the public interest.
For a while, it was thought that those certificates should be conclusive, but in a landmark case, Conway v Rimmer, in this jurisdiction, and very much earlier in the northern jurisdiction, it was decided that the certificate would not necessarily be conclusive if the area in question was such as to be central to the determination of the case. The method of dealing with that devised in Conway v Rimmer was that the judge or judges concerned with the case looked at the documents apart from any other party to the case except the person who had responsibility for production and the Secretary of State who had claimed the immunity, so that a degree of secret trial, if you like, has been long established in relation to public interest immunity.
If a public interest immunity certificate was granted in respect of the disclosure of particular information and it was held that it should succeed—in other words, that the balancing exercise of justice to the particular claimant came down in favour of the Secretary of State—that evidence was excluded altogether from the case. That is of itself a type of damage to a completely fair trial, because normally one is entitled to use all the relevant evidence in determining the issues, but a public interest immunity certificate, long established in law, has the effect of completely excluding that evidence, whether it helps or hinders the case of the Government or any other party. So one starts in this area with a system under which a very serious innovation is made to the ordinary rules that in civil cases all relevant evidence is available.
In my view, Clause 6 brings in a new system that is generally available in relation to national security only. It does not bring in any such system in relation to public interest immunity generally. It is only in relation to damage to national security that this arises. The obligations are that when a document is thought by the Secretary of State to be damaging to national security, he can apply to the court in any civil proceedings for a declaration that the case is one in which closed procedure should be allowed. The decision on that point is one for the judge as to whether the disclosure which is required to be made will damage the public interest. A judge of course has a jurisdiction in relation to the nature of the disclosure that has to be made, because it is fundamental to this whole thing that there is an obligation to disclose on the part of what is called the relevant person.
Reference has been made to Mr Andrew Tyrie in the course of the deliberations. I had the privilege of a very full conversation with Mr Andrew Tyrie on the telephone this morning, after receiving a number of communications from him. He rang me up because I had told him in rather brief terms what I was proposing to say about it. I had a full discussion with him, the result of which causes me to emphasise that it is important that the judge in the case has a jurisdiction to decide what has to be disclosed. For example, if it is possible to remove the difficulty by redaction or some other procedure of that kind then the whole difficulty disappears and closed procedure would not be necessary. It is only when there is a residue of material that the judge considers is required to be disclosed and considers that the necessary disclosure would be damaging to national security that this procedure is available. When it is available, it is of course a closed procedure in the sense that it has only the party producing the documents—the Secretary of State—and no other, the other party being represented by a special advocate. The special advocates have made observations about this, which I shall mention in a moment. There is quite elaborate provision for what this procedure is. I want to draw attention to that because it is quite important that we do not lose sight of this matter as it is set out in Clause 7.
Clause 7 contains provisions arising out of the closed procedure and its subsections (3)(a) and (3)(b) are of great importance. I should say that these provisions are to be introduced by rules of court; I will have a word to say about that at the end of my observations. Clause 7(3) says that the court “must be authorised” by rules of court,
“(a) if it considers that the material or anything that is required to be summarised might adversely affect the relevant person’s case or support the case of another party to the proceedings, to direct that the relevant person—
(i) is not to rely on such points in that person’s case, or
(ii) is to make such concessions or take such other steps as the court may specify”.
Now, the court hears this evidence in the absence of the other party, but let us say that the court is satisfied that in the course of this work by government agencies something is wrong. The court could insist that the Government could no longer maintain a case that there was nothing wrong. These are very powerful inferences from the evidence to be heard. They are very much better than the evidence being excluded altogether. I know of one case where, if the evidence had been excluded altogether, the case for the Government might have gone ahead, whereas when it was, in fact, not excluded, the Government’s case collapsed. That is what this allows the court to do, by order. So there are two branches to subsection (3)(a).
Subsection (3)(b) says,
“in any other case, to ensure that the relevant person does not rely on the material or (as the case may be) on that which is required to be summarised”.
The court is therefore able to decide that the person in question—that is, the relevant person with the documentation—does not rely on the evidence which is being heard in the closed procedure.
I have only summarised these provisions. They are a great improvement in the case to which they reply to the present situation, where the relevant evidence is excluded altogether, and no inference one way or the other can be drawn from it. My submission to your Lordships is that this closed procedure is an advantage over the present situation and is subject to a good deal of safeguard in the fact that it is the judge who decides what the disclosures have to be and whether they will in fact damage national security. In my discussions with Andrew Tyrie this morning, he was concerned that I should emphasise these points. I think that he had the impression that they may not have been sufficiently emphasised already.
I turn to Clause 13 and the Norwich Pharmacal jurisdiction which was recognised as an authority in 1974 in a case of that name which went to the House of Lords. It was a simple case in a way. Norwich Pharmacal had a patent and discovered that patented material was being imported into the United Kingdom. It could not find out who the importer was, and thought, “It must come through Customs and Excise, and so Customs and Excise must have a note of who the importers are”. It applied to the Court and to the House of Lords. Lord Reid, a distinguished Scottish judge, Lord Kilbrandon, another distinguished Scottish judge, and others, decided that Customs and Excise should reveal to Norwich Pharmacal the name of the importer, so that it could take the necessary proceedings.
That seems to be a very straightforward principle. The Explanatory Memorandum says that it does not apply in Scotland. I am not sure why that statement was made, but anyway, it does not matter very much, because the cases that are the subject of the Green Paper and the like have all taken place in this jurisdiction.
Clause 13 describes the jurisdiction, I hope, in accordance with what I have just said:
“This section applies where, by way of civil proceedings, a person (‘A’) seeks the disclosure of information by another person (‘B’) on the grounds that … wrongdoing by another person (‘C’) has, or may have, occurred … B was involved with the carrying out of the wrongdoing (whether innocently or not)”—
the Customs and Excise people were concerned at the import of this, that B was not involved in wrongdoing but was merely carrying out their own responsibility—
“and … the disclosure is reasonably necessary to enable redress to be obtained or a defence to be relied on in connection with the wrongdoing”.
It goes on to say:
“A court may not, in exercise of its residual disclosure jurisdiction, order the disclosure of information sought … if the information is sensitive information”.
I agree with the noble Lord, Lord Beecham, that the description of “sensitive information” seems extremely wide, and I have questioned whether it is necessary to have it anything like so wide. Clause 13(3)(a) to (d), as the noble Lord said, relate to various aspects of the Security Services, while (e) is for a specified certificate in which the Secretary of State has to consider that it would be contrary to the public interest for the information to be disclosed because of the interests of national security or—and here is the extra—the interests of the international relations of the UK. We know that it is the relationships particularly with the United States, though not only those, that are the issue here. For my part, subject to anything that my noble friend or others may say, I cannot see why the provision needs to go beyond the certification procedure of Clause 13(3)(e).
I have one other rather technical point. This provision is restricted to the residual disclosure jurisdiction of the courts, which means,
“any jurisdiction to order the disclosure of information which is not specifically conferred as such a jurisdiction by or under an enactment”.
That, I think, is intended to describe the Norwich Pharmacal jurisdiction. I question whether it is effective for that purpose, because the Norwich Pharmacal jurisdiction was established and quite clearly recognised in 1974. In the Supreme Court Act 1981, the Court was specifically empowered to exercise all the powers that it previously had. Norwich Pharmacal is included in that for the Court of Appeal and the High Court. I question whether this is an effective description of the jurisdiction. There is of course provision for judicial review of the certificates, which are regarded as quite important.
My final point is that in Part 2 of Schedule 3, on the closed material procedure, paragraph 3(1) provides that the Lord Chancellor may make the first rules of court himself. For my part, I would prefer that the rules of court were made by the court authorities that make rules of court ordinarily. I gather that the reason for this is possibly that Parliament might like to see a draft of these rules before the Bill is finalised, and that the committees of the court might not be willing to provide such a draft. I would have thought, though, that on the whole it would be wiser if the ordinary procedures for rules of court were used. I entirely trust these methods. Of course I entirely trust the Lord Chancellor, but in this case it would be better to use the established methods.
Lord Thomas of Gresford
My Lords, I declare an interest as a practising barrister. Indeed, I think I was involved in the first case in which public interest immunity procedures were developed following the case of Johnson in January 1993. I was then instructed by the CPS and the security services to prosecute a number of letter bombers who had distributed letter bombs to important and prominent people in north Wales.
I welcome the proposed reforms of the Intelligence and Security Committee, subject to the pertinent criticisms that I know my noble friend Lord Macdonald will advance and which we hope will lead to improvements in the provisions. I intend to confine myself to the second part of the Bill, which deals with CMPs. In a criminal trial, the judge does not decide the facts; he does not decide what happened. The jury hears the evidence presented to it, almost always in open court, and it must be both admissible and relevant.
If either the prosecution or the defence questions the admissibility or relevance of any evidence that the other seeks to adduce, there is an argument in the absence of the jury, and the judge gives a ruling. The judge in a criminal trial may be, and usually is, in possession of information, such as the previous convictions of the accused or evidence that he has ruled to be inadmissible or irrelevant, that the jury—the judges of the facts—never hear and which therefore play no part in its decision. The judge may also know of secret matters, which are never released, even to the defence, because the prosecution successfully claims public interest immunity from disclosure. In a criminal trial, the judge carries out a balancing test between the interests of justice and the interests of national security or other public interest. Crucially, in a criminal case the secret material plays no part in the jury’s decision because it does not know about it.
In the vast majority of civil trials, on the other hand, there is no jury. The judge decides the facts, and in applying the law gives a reasoned judgment in favour of one side or the other. Very often he will hear evidence that is prejudicial to one side or another which he deems to be inadmissible or irrelevant, and in these very common circumstances he is trained to ignore such evidence and to put it out of his mind altogether in coming to his conclusions. Invariably, in the course of giving a ruling or a judgment, he will openly and transparently say so.
Part 2 of this Bill is primarily concerned with actions brought by an individual against the state for damages for human rights violations such as torture or other cruel, inhuman or degrading treatment, false imprisonment, illegal renditions, or complicity in such violations in other jurisdictions. This Bill proposes that the judge should hear secret material from one party, the state, which is withheld altogether from the other party, the claimant. In complete distinction from public interest immunity applications, whether in criminal or civil procedures at present, and rulings on inadmissible or irrelevant evidence, the secret material proposed in this Bill is not to be disregarded or put out of the judge’s mind. On the contrary, the state claims that the secret material should play a part, perhaps even a crucial and central part, in the judge’s ultimate decision on the case before him. Your Lordships will appreciate that this is therefore a very considerable step.
There is an obvious unfairness to the claimant, who cannot answer or test any allegations that may be contained in the secret material. In addition, it is against the public interest generally that the state should hide its case behind a cloak of secrecy and therefore potentially hide its misdeeds, or give the appearance that it is so doing.
It is argued, however, that the claimant can be protected through the closed material procedures that have been developed whereby the state brings an individual before the Special Immigration Appeals Commission in immigration and in other naturalisation and extradition matters. I must tell your Lordships that I opposed these procedures in June 1997, at the Second Reading of the SIAC Bill, on the basis that it was a straightforward breach of natural justice that proceedings should be held in the absence of the appellant or of any legal representative who is instructed by him. I questioned whether a special advocate appointed by the Attorney-General would ever be able to take the appellant’s instructions, to have confidentiality with his client, or to have the benefit of legal professional privilege. The model later adopted was that he most certainly would not have those standard requirements of a lawyer, which is repeated in this Bill.
The body of special advocates, security cleared and appointed by the law officers, and now with 15 years’ collective experience of the system in action, have unanimously opposed the extension of CMPs to civil proceedings of this nature. They rejected the argument set out in the Green Paper that:
“A judgment based on the full facts is more likely to secure justice than a judgment based only on a proportion of relevant material”.
It was rejected on the grounds on which the noble and learned Lord, Lord Kerr, in the Supreme Court in al-Rawi rejected it. The noble Lord, Lord Beecham, quoted his judgment, but I will not repeat it.
The noble and learned Lord, Lord Kerr, pointed out that the right to know and the right to challenge the other side’s evidence is essential to the concept of a fair trial. The special advocates said that his reasoning reflected their experience as special advocates operating in existing CMPs. They added this important point:
“Our knowledge of the nature of closed material makes us doubt that most of it could be admissible as truth of its contents in civil proceedings, on an application of established rules of admissibility. Such documentary evidence”,
which they have seen,
“routinely contains information which may be second or third hand, and of which the primary source will usually be unidentified (and may be unknown) … It scarcely seems worth applying CMPs to civil proceedings if the evidence concerned will be largely inadmissible as evidence of the truth of its contents (or to which no weight can be attached)”.
In addition to the argument on principle, there is a practical side to this issue. Ninety-five per cent of civil litigation settles. When the pleadings that set out the issues clearly between the parties have been completed and all the documents have been disclosed, as there is an obligation to disclose all the documents relevant to a case, the lawyers on both sides will assess the risks of the litigation and generally can and do come to a compromise based on their assessment of risk in 95% of civil litigation. Settlement may not give both sides all that they want, but sometimes it arrives at satisfactory solutions that are beyond the scope of the trial judge, who can award only the remedies pleaded in the pleadings. One very relevant example of that is that a confidentiality agreement can be entered into on a settlement.
Lord Williams of Elvel
The noble Lord will be aware that members of the Armed Forces have come into our Gallery. As I understand it, this is not a military coup, but we should welcome them in attending our debate.
Lord Thomas of Gresford
I am most grateful for that intervention. Perhaps I may add my welcome and that of these Benches to all visitors, whatever they may be, who come to listen to our proceedings.
Settlement in civil proceedings, which generally happens, is threatened by these procedures. It is ironic that the motivation behind this Bill is that the Government dislike settlements. They demand a judgment, so they say, to clear the air and to banish suspicions of nefarious conduct on the part of government agencies. I reject the reputational damage argument advanced by my noble and learned friend Lord Wallace. That is why I interrupted and pointed out that you cannot say that allegations of torture have been answered when the judge delivers a judgment and says, “Well, I find against you but I can’t tell you why”. I cannot imagine what that does to clear the air.
What will the Government do in the pleadings? What will they say their case is? How do they propose to alter the disclosure rules to hold back documents which they are duty bound to disclose? How can the claimant’s lawyers begin to assess risk in order to consider proposals for settlement that may be advanced by the Government, or to make proposals themselves when that lawyer does not know whether or what secret material is before the judge? When the Government’s lawyers go behind the claimant’s back into the judge’s chambers, they are seeking judgment in their favour on their untested allegations against the claimant. What is more, by this means they can keep secret any embarrassments or nefarious conduct of their own. How does the claimant’s lawyer, in practice, advise his client to settle the case? You put settlements out when you adopt a procedure such as that suggested in Part 2 of this Bill. What then should be done?
The experience of the Diplock courts in Northern Ireland provides an acceptable answer. It became impossible, your Lordships will recall, to hold normal jury trials in terrorist cases in that jurisdiction due to intimidation and prejudice arising out of sectarian divisions in the Province. In Diplock trials, the judge sat alone and in criminal cases became the judge of fact as well as of law. He decided what had happened. Accordingly, a separate judge, a disclosure judge, heard applications, for example for the exclusion of inadmissible evidence and applications for public interest immunity. The noble and learned Lord, Lord Kerr, then Lord Chief Justice, in the case of McKeown in the Northern Irish Court of Appeal in 2004 described this different model of procedure in the Diplock system. He said:
“The system of non jury trial, involving as it does the judge as the tribunal of fact as well as the arbiter on legal issues, clearly calls for a different model than that which is suitable for trial by judge and jury … Since it is a non-jury trial, it would be plainly unsuitable for the judge who must decide on the accused’s guilt to see material that might be adverse to him. A ‘disclosure judge’ had to be assigned to examine the subject of the material that should be made available to the defence. The level of intervention by the disclosure judge depended on the nature of the issues that arose on the trial”.
So there, in Northern Ireland, we have experience of where, in criminal matters, the judge was the judge of fact and a separate judge dealt with disclosure and with the sensitive matters of public interest immunity. In my view, it is directly analogous and I shall be putting down amendments to the effect that applications to withhold sensitive material should be made to a designated judge, a disclosure judge, who will be quite separate from the trial judge. The disclosure judge would first of all carry out a public interest immunity exercise so as to identify what material, if any, would assist the claimant’s case or damage the Government’s case. In my view it is an utterly unsatisfactory feature of this Bill that the Secretary of State only has to “consider” whether he should make a PII application before launching into a CMP application. We shall endeavour to ensure that there shall be no CMP application unless it is preceded by a PII hearing. It should be for the court to consider whether the Government’s concerns could be met by the public interest immunity application without recourse to this very much more serious dent in principle of CMP procedures.
The disclosure judge carrying out a public interest immunity application would look at the sensitive material and hear submissions from both sides, including any special advocate appointed for the claimant. He might even, in proscribed circumstances and subject to safeguards, give permission to the special advocate to speak to the claimant. In his ruling on disclosure, the disclosure judge would exclude irrelevant and inadmissible evidence, such as hearsay, opinion and intercept. He could determine what should be disclosed and the form in which the disclosed evidence should be received in open trial before the trial judge who is to decide the facts of the case. He could use redacted documents or precautions to preserve the anonymity of the sources and secret techniques of the security services, and the other precautions that are currently available in PII cases. The point is that the claimant or another interested party, and the public, can be reassured that in the generality of cases, the trial judge—the judge of fact; the judge who produces the final judgment—has not seen anything more in secret from the Government than the claimant has seen and has not been prejudiced thereby. I stress “the public” because public confidence in justice and fairness underpins the whole justice system.
What would happen if the Government were unwilling to disclose secret material that the disclosure judge on a public interest immunity application ordered should be disclosed? In a criminal case at present, the prosecution ordered to disclose something may refuse to do so and may drop the case. In civil cases, as the Government complain, they may decide to settle the case and pay damages to the claimant without admission of liability. It is only in this situation, where the Government still seek to rely on secret material after the public interest immunity application has been heard and the PII possibilities have been explored, that CMP procedures would have any part to play. I concede that in rare and extreme instances, where the interests of justice are overwhelming, the disclosure judge should have the power to convey to the trial judge some fact or circumstance relevant to his determination of the case heard that could not be disclosed to the claimant. Although it is contrary to the principle for which I argue, I can conceive that, sparingly used, such a power would be a safeguard—a safety valve—that should satisfy the Government’s concerns. I bear in mind that matters that the Government wish to conceal might not necessarily be in their interests and might reveal facts that would assist the claimant, even though he does not know about them. I also bear in mind the safeguards in Clause 7(3), to which the noble and learned Lord, Lord Mackay, has spoken.
Your Lordships will be pleased to hear that I do not have time to comment on the Norwich Pharmacal issues, which will be developed by my noble friend Lord Lester. I agree with him and the Joint Committee on Human Rights that it is essential that the jurisdiction of the court should not be ousted in these cases, and that any ministerial certificate should be reviewable—not simply on procedural grounds but on the balance of the public interest.
Baroness Stowell of Beeston
My Lords, for the benefit of the whole House, and before the noble Lord, Lord Butler, contributes to the debate, noble Lords might find it helpful if I remind them of what the Companion says about speeches in debates where there are no formal time limits. It states that,
“members opening or winding up, from either side, are expected to keep within 20 minutes. Other speakers are expected to keep within 15 minutes. These are only guidelines and, on occasion, a speech of outstanding importance, or a ministerial speech winding up an exceptionally long debate, may exceed these limits”.
Lord Butler of Brockwell
My Lords, I shall do my best to comply with the noble Baroness’s exhortation.
The Bill before the House is important, although its purposes are limited. It is also urgent because the Intelligence and Security Committee—I have the honour to be one of its members from your Lordships’ House—has seen direct evidence that uncertainty over the matters covered in Part 2 of the Bill is already affecting co-operation with our intelligence allies on matters of national security. I do not want to exaggerate the effect of that but the House should be aware that our proceedings are being watched with more than usual attention by our allies, particularly our United States allies.
The Bill has been the subject of consultation through a government Green Paper, and that consultation has been valuable. It has not only enabled the provisions of the Bill to be widely understood but caused the Government to modify their original proposals in significant ways. As previous speakers have explained, the Bill essentially has two purposes. One is to modernise parliamentary oversight of the United Kingdom intelligence community. The other is to address the problem which has arisen in relation to the disclosure of intelligence in certain civil proceedings. As one of the two Members of your Lordships’ House in the Intelligence and Security Committee, which otherwise consists of members of another place, it may appear a little self-centred if I deal first with the Bill’s provisions relating to the committee. However, in doing so, I follow the order of the provisions in the Bill.
Like the noble and learned Lord, Lord Mackay, I can claim a certain parental interest in the Intelligence and Security Committee, because as Cabinet Secretary and a counting officer for the secret vote, I was involved in the discussions inside government which led to the establishment of the committee through the Intelligence Services Act 1994.
In the early 1990s, when the main British intelligence agencies—the Security Service, the Secret Intelligence Service and GCHQ—had been publicly avowed, it was recognised that Parliament should have more oversight of the services than the very limited and secret supervision of the agencies which the Public Accounts Committee had previously had. There was a good deal of nervousness within the Government, and particularly within the agencies, about giving parliamentarians access to their work. This was not because the agencies were defensive or embarrassed about their activities. On the contrary, they felt that the scrupulousness with which they carried out their duties could stand up to scrutiny perfectly well. Their anxieties understandably related to the necessary secrecy of their work and about the admission to their secret world of parliamentarians who necessarily conducted their lives in public. So the method of appointment and the range of activities of the committee were very tightly controlled in the 1994 Act. The committee, though comprising Members of Parliament, was appointed by the Prime Minister. The range of supervision of the committee omitted intelligence operations and was confined to expenditure, policy, and administration; and it was restricted to the three agencies rather than to the intelligence community as a whole.
It is greatly to the credit of successive committees and their chairmen, many of whom are Members of your Lordships' House, that the fears of the intelligence agencies have proved unfounded. The members of the committee, admitted within the ring of secrecy, have recognised and observed the obligations of discretion which that access has required. Over the years the intelligence community has developed confidence in the committee as independent friends, sometimes critical but invariably trustworthy and conscious of the importance of the agencies' work.
Consequently, the work of the committee has progressed beyond the confines of the original legislation. It continues to scrutinise expenditure, administration and policy, but it has been useful to the Government as well as to Parliament that it should sometimes look retrospectively at operations, especially when those operations are controversial or there are lessons to be learnt from them. It is sensible that the opportunity should be taken through this Bill to bring the legislation in line with how the committee now operates in practice. However, the tight restrictions on the way the committee was established have one major disadvantage. The fact that the committee is appointed by the Prime Minister and reports to the Prime Minister can, and does, suggest that the committee is the creature of the Prime Minister and the Government. This has on occasion reduced the confidence of the public and Parliament in the committee's independence.
Some restrictions on the committee continue to be necessary. It is right that the committee should be able to report unrestrictedly to the Prime Minister, but the coverage of its published reports needs to be restricted so that secrets are not disclosed. The record of the committee in the 18 years of its existence demonstrates that it can be freed of some of the shackles originally imposed upon it.
It is now time for the committee to come of age and for legislation to catch up with the extensions of coverage and freedom of action which have, in practice, been extended to the committee as confidence in it has grown. In consequence, the committee will become more useful to Parliament and the public as its independence is more manifestly demonstrated.
I turn now to the more controversial provisions of the Bill, which have been the subject of earlier speeches: those relating to closed procedures. It is important to emphasise—it has been clear from the speeches that this is well recognised—that the provisions in the Bill relate only to civil proceedings. In criminal cases, it has always been the case that when material is so sensitive that it cannot be disclosed to the defendant and yet the prosecution cannot proceed without it, the case cannot proceed. Defendants cannot be convicted in criminal cases on the basis of material of which they cannot be made aware and do not have the opportunity to contest. Criminal cases are brought only by the Crown. The Crown is the prosecutor and members of the public are the defendants. The difference in civil cases is that the Crown may be the defendant. The new development in this area is that the events following 9/11 and detention in Guantanamo Bay and elsewhere have given rise to a spate of civil cases against our Government and others. In the case of our own Government, some of those cases can be defended only by the deployment of intelligence belonging either to our country or to other countries. In the case of action against other Governments, application can be made under a procedure known as the Norwich Pharmacal procedure for disclosure of information held by our Government even though there may be no suggestion that our Government were involved in any wrongdoing.
In such cases, there are only three possible courses. One is the disclosure of the intelligence. The second is conceding the action because material necessary to defend it cannot be used. The third is to institute a procedure such as the closed hearings provided for in the Bill. The seriousness of disclosing intelligence, particularly but not only intelligence supplied by allies, cannot be stressed too strongly. The potential breach of the principle that intelligence provided by allied countries must be restricted to our Government and used only for the purposes for which it was given—a principle known as the control principle—would have very serious consequences. It has already had serious consequences in the one case in which it has occurred.
The second alternative of having to assert public interest immunity and perhaps to concede the action because it cannot be effectively defended means, in my submission, that justice cannot be done. The Government may have to concede large sums in settlement in cases in which the use of intelligence might have enabled the Government to defend themselves and, as has been recognised, that has already happened in some cases. I submit that taxpayers are also entitled to justice.
The third alternative is a closed procedure in which special advocates are given access to the information on behalf of their clients and that is proposed in the Bill. The noble Lord, Lord Thomas of Gresford, in his extremely well informed speech, proposed an alternative procedure which may well be worthy of consideration. However, I think we are all agreed that some way must be found of enabling justice to be done, while information essential to national security is protected. We all agree on the importance of protecting such information.
These closed procedures are an exception to the principle that all relevant information should be freely available to all parties in litigation. It should be clearly limited to cases where it is absolutely necessary. It is therefore welcome that the Government have already reduced the scope of their original proposals from sensitive material to material prejudicial to national security. It is also welcome that the judge should be given the final decision on the application of such procedures.
But I have no doubt that, for example, intelligence provided by foreign partners who do not consent to its disclosure, must be protected. If a judge ruled that its disclosure was essential to the resolution of a case, the Government would have to withdraw their defence. But that is better than the Government having to withdraw their defence in all such cases.
No one pretends that closed proceedings are ideal, but they seem to me to be the least worst option in these cases. It may be that we can make improvements in the special advocate procedure along the lines, for example, of the recommendations in the excellent report of your Lordships’ Constitution Committee or those of other countries which, in similar circumstances, have introduced closed proceedings legislation. But a procedure on these lines is preferable to the public interest immunity procedure in the United States where Binyam Mohamed was unable to bring any action at all because the Government asserted state secrets privilege.
There are aspects of the Bill with which the Intelligence and Security Committee is not yet fully satisfied and which will need clarification and perhaps amendment as the Bill proceeds. But I think that I speak on behalf of my colleagues on the committee when I say that we welcome the general thrust of the Bill and agree with the importance and urgency that the Government attach to it.
The Marquess of Lothian
My Lords, it is with pleasure that I follow the noble Lord, Lord Butler of Brockwell—with whom I have the honour to serve on the Intelligence and Security Committee—not least because, after his comprehensive speech, I can keep my own comments relatively brief. I will try not to cover the same ground as he has, although that may not be possible in all instances.
I was first appointed to the ISC when I was a Member of the other place in January 2006. I am therefore reasonably well aware of the current weaknesses of the committee as well as its undoubted strengths—many of which, by the nature of the committee, by necessity go unsung.
The committee has long been criticised for lacking independence, mainly because it is appointed by and reports primarily to the Prime Minister. In fact, all my colleagues on the committee take our independence very seriously. Looking round the House I see others who have served on the committee. I am sure that they, too, would emphasise that they saw their independence as an important part of their function. However, that is not the public perception—and as they used to say to me in Northern Ireland, “It’s the perception that matters”. This Bill therefore provides that the committee will in future be appointed by Parliament on the nomination of the Prime Minister, after due consultation with the Leader of the Opposition, and will in future publish its main reports direct to Parliament.
Whereas in the past the committee could only request information from the intelligence agencies, in future it will be able to require it and will have enhanced resources with which to obtain it. The committee will also be able to exercise retrospective oversight of the operational activities of the agencies on matters of significant national interest. It has in practice done so for many years past but will now do so on a much wider scale, more regularly and within a legislative framework.
At a time when oversight of the agencies becomes increasingly important, this Bill will enable the ISC to perform its task more effectively on Parliament’s and the public's behalf. From being a committee of parliamentarians appointed by the Prime Minister, it will now become effectively—in practice if not in name—a committee of Parliament. There are some details to which I will return at later stages of the legislative process, but by and large the first part of the Bill is a substantial move in the right direction.
The second part of the Bill, on closed material procedures in civil actions, is indeed more contentious. Anything that seeks on the face of it—and once again, perceptions matter—to offend against the principles of open justice is bound to give rise to concern, not least in the media. However, I believe that the Bill, if it is studied carefully, meets nearly all those concerns. The Minister dealt with much of this, and indeed my noble and learned friend Lord Mackay of Clashfern—at whose feet I sat many years ago as a very junior member of the Scottish Bar—gave us a full explanation and justification of the procedure and the ways in which it will be used.
I therefore just want to make a number of general points. My first is that the use of the procedure refers only to where disclosure of the material in question would be damaging to national security—and I emphasise the words “national security”. Those two words are vital because they are rightly far more restrictive than the original proposal in the Green Paper of damage to the “public interest”. The test of the level of sensitivity that could damage national security must be a narrow one. I too have some doubts as to whether the Bill has created a sufficiently narrow definition. We cannot have a situation where intelligence information is excluded because it was marked “secret” and could embarrass the Government or the intelligence agencies. It has to be shown that it risks the security of this country and its citizens. Secondly, it is important in this respect that it is a judge and not a Minister who will ultimately determine whether the procedure should be used.
There are two such categories of intelligence information which it covers. First, there is the United Kingdom intelligence material, disclosure of which could endanger and undermine our intelligence officers and the vital work that they carry out on our behalf. I hope that we would all agree that that particular definition meets the test of sensitivity. Secondly, there is foreign intelligence material shared with us on the strict understanding of confidentiality—the so-called control principle to which the noble Lord, Lord Butler, referred. Such intelligence, which is essential to us in meeting the threat of international terrorism, does not belong to us; it belongs to those who share it with us. We have no right to disclose it without their consent. This principle is sacrosanct, and it works both ways.
There are those who still question whether breach of the principle would really have serious repercussions in terms of intelligence sharing in the future. I say as categorically as I can that I am in no doubt of this. The noble Lord, Lord Butler, and I have talked to people in the intelligence agencies in the United States and elsewhere and what they have said to me leaves me in no doubt that that would be the case. The truth is that we need their intelligence, and anything that puts that at risk puts at risk our national security and that of our citizens too. Therefore I welcome the changes to the Norwich Pharmacal principle envisaged in the Bill.
My other point is that the CMP is the procedure most likely in the circumstances to achieve justice while protecting—necessarily protecting—the information in question. At present, where such genuinely sensitive material is at issue, there are effectively two options for protecting it. The first is to withdraw the defence, however sound that defence may be, and face massive compensation claims—which, as the noble Lord, Lord Butler, made clear, are met in the end by the taxpayer. The second is to apply for public interest immunity certificates which prevent, as the noble and learned Lord, Lord Mackay of Clashfern, said, the material being seen or heard at all in that it will be totally excluded from the legal proceedings. In my view—as someone, I have to say, who has not practised the law for a very long time—neither of those options is conducive to justice. At least the closed material procedure means that the judge and the special advocates can see and question the material, and in the judge’s mind it can then form part of his or her judgment.
I want to make one other point. National security is not just about the general safety of our nation—which of course is paramount—it is also about protecting the lives of innocent citizens threatened by terrorism. Frequently that protection is achieved through secret intelligence from both home and abroad, intelligence which must be protected; and therefore sometimes the price of that protection is a curtailment of long-standing rights. I have long believed that the freedom of the individual, enshrined within these rights, is paramount. However, the greatest of these rights is the right to life itself. Protecting life from existential threat must be the priority, even at the cost of some restriction on other rights. I have seen for myself the carnage of terrorist outrages. No rights can take precedence over the means that can prevent them. In the end it is a question of a delicate balance, and in my view, this Bill gets it just about right.
Baroness Ramsay of Cartvale
My Lords, it is a particular pleasure to follow such distinguished members of the current ISC as the two noble Lords who have spoken before me in this debate. The ISC is a committee on which I have twice had the pleasure of serving in the past. I welcome the Bill which, although not long, deals with rather a large number of important issues that have been in need of being addressed for some time. At later stages I will consider whether amendments might be desirable, but at this Second Reading, I would just like to seek assurances from the Government on some points.
Part 1 of the Bill, on the oversight of intelligence and security activities, deals almost wholly with the Intelligence and Security Committee. The ISC came into being through the Intelligence Services Act 1994 for which the then Prime Minister, John Major, deserves considerable credit. Although the intelligence community had long desired such a development—especially the SIS, which until then was not officially avowed—previous Governments had been reluctant to go down that route. The excellent work of the ISC since its inception has demonstrated the correctness of Prime Minister Major’s decision at the time.
Nearly all the proposals, as far as I can see, regularise what in fact has come to be the practice of the ISC, as the noble Lord, Lord Butler, indicated. For example, it looks at intelligence activities outwith the three main agencies and examines in retrospect operations of particularly significant national interest. I would just comment here that there has been a feeling for some time that, as a Joint Committee, consideration should be given to increasing the number of members from your Lordships’ House on the ISC. It should be acknowledged here that the present Government have increased that representation from one to two members, but I think a further increase should be considered.
However, there is one point in the Bill on which I would urge caution and seek reassurance; that is, that the ISC should have powers to require information from the agencies subject to a veto from the Secretary of State rather than, as now, the head of an agency. As a general comment, I would advise the Government to be careful of eroding the authority of the heads of the agencies. I was concerned to discover that there had been changes in recent years in the writing of annual confidential reports on the three agency heads, so that where the Secretary of State had featured in the past, the first National Security Adviser was considered to be the “line manager” of the three agency heads. I understand that there has been a change with the change of National Security Adviser. I must make clear here that I have absolutely no idea what the three agency heads felt or feel about this, but that is not the point. This has nothing to do with personalities or personal feelings; to my mind, it is a matter of constitutional propriety.
I do not consider it appropriate that the three heads of agencies should be simply slotted into senior Civil Service rankings. In a democracy, it is essential that the security and intelligence services should be independent, answering to a Secretary of State and directly to the Prime Minister. Of course, in practice it will probably make little difference to refer to a Secretary of State for release of refused information, because it would be a very brave—in the Sir Humphrey usage of that word—Secretary of State who would overrule a director-general of the Security Service, a chief of SIS or a director of GCHQ on the wisdom of releasing sensitive material, and of course much fuller detailed reasoning can be given to Secretaries of State about the sensitivity of sources than can be revealed to the ISC.
However, I urge the Government to proceed with great caution here. Of course the agencies have to be accountable but their independence is crucial. That independence has to be from political or—dare I say it?—Civil Service operational interference. I would appreciate hearing the Minister’s comments on this point and would like to be reassured that there is no slippage about safeguarding the operational independence of the agencies.
Part 2 of the Bill, which deals with the disclosure of sensitive material in courts, is of course long overdue but the delay has been caused by having to wrestle with some hugely difficult problems of how to use sensitive intelligence material in our legal system without taking unacceptable risks of damaging sources, both human and technical. This set of proposals seems to tackle these problems rather well. I would just like to make two comments from my own past professional experience—one of revealing information from a liaison service and the other on the use of intercept material as evidence. Both these issues are much more complex, sensitive and difficult than they appear at first glance or to the uninitiated. I have spoken before in this House at some length on both of them, and today at Second Reading I will be very brief.
On the first point, it is a rule—in my day it was called the “third party rule”—engraved on the heart of every intelligence officer, however junior or senior, that material from any liaison service cannot and must not ever be passed on or revealed to a third party without the express permission of the originator. If that rule is violated, the intelligence flow is endangered. We, the British, would enforce this rule absolutely on our own material, so it is to be expected that liaison services would do the same to us, which in some cases would result in very serious adverse consequences and loss of intelligence, as the noble Lord, Lord Butler, and the noble Marquess, Lord Lothian, have made very clear in their speeches today.
Secondly, the question of using intercept as evidence has occupied this House at great length on many occasions over the years, as well as the whole of Whitehall, and I will not rehearse the detailed arguments again here. In spite of the ardent desire of successive Secretaries of State and law officers to achieve this, and the best legal brains in Whitehall wrestling with it, no solution has been found—perhaps until now. It has never been a question of principle but rather one of sheer practicality. A team of distinguished privy counsellors produced a report after lengthy consideration of all the evidence, and an implementation unit was set up in the Home Office to test various possible solutions in conjunction with the privy counsellors, one of whom was my much admired and now sadly missed noble and learned friend Lord Archer of Sandwell. How does all this relate to Clause 6(3)(b) of the Bill, which states that the court must ignore Section 17(1) of the Regulation of Investigatory Powers Act 2000, which deals with the exclusion of intercept material?
I would be grateful if the Minister could elucidate and explain how the Bill’s provisions satisfy the requirements of the report of the privy counsellors. I hope that I can be reassured on this and the other points I have raised. On receiving such assurances, I would very happily support this Bill.
Lord Lester of Herne Hill
My Lords, the Joint Committee on Human Rights is obtaining evidence about this Bill. We intend to report to Parliament before Report stage and to table amendments in the mean time. It is a highly controversial Bill and we welcome the Minister’s assurance that there will be sufficient time to scrutinise and improve it during its passage in this House. Like the noble Lord, Lord Beecham, whose speech I found particularly impressive, I think we should strive across the House to achieve consensus where we can.
There are welcome ways, identified by the Minister and others, in which the Bill improves on the overly-broad proposals in the Green Paper, in accordance with the recommendations of the JCHR and others. However, the Government have not accepted our criticisms or recommendations, or those of the independent reviewer of terrorism legislation, the special advocates and civil society, about the lack of sufficient judicial control of the closed material procedure, the judicial balancing role of public interest immunity, as described by the noble and learned Lord, Lord Mackay of Clashfern, and the use of the Norwich Pharmacal disclosure jurisdiction post the Binyam Mohamed decision of the Court of Appeal. I regret to say that the Bill betrays an unjustified lack of confidence in our fine system of civil justice and the capacity of our courts to protect state secrets.
The Select Committee on the Constitution has published its very significant report on the Bill, rightly noting that exceptions to the constitutional principles of open justice and natural justice should be accepted only where demonstrated on the basis of clear evidence to be necessary. The JCHR considers that the Government have not demonstrated by reference to evidence that the fairness concern on which they rely is in fact a real and practical problem.
That said, I must now plead guilty. It is to some extent because of my role at the Bar that the closed material procedure was first introduced. It happened as a result of litigation in both European courts. In the first example, Marguerite Johnston v Chief Constable of the Royal Ulster Constabulary, a Minister had certified that national security prevented part-time reservists in the RUC having the merits of their sex discrimination cases heard at all in Northern Ireland. I had to go through Luxembourg for them to get that conclusive ministerial certificate set aside so that we were able to hold a merits hearing before a tribunal in Northern Ireland, partly in camera, and I am glad to say that the women won.
The second example is the Tinnelly and McElduff cases, where Northern Irish complainants said they had been black-balled from getting government contracts because of their religion, and the Government said otherwise. Again, the puzzle was how to do justice to them when the Government said there were national security considerations affecting their cases. I plead guilty to having suggested, as had many NGOs, that the answer was a closed material procedure. That is what was developed in SIAC. I do not, therefore, start off with a root-and-branch opposition to the closed material procedure. Where properly controlled, it is in my view a proper compromise.
The Constitution Committee rightly decided that the scheme contains three basic flaws. I agree with that but I am not going to talk about it, because the committee did not look at Norwich Pharmacal. I am simply going to concentrate the remainder of my remarks on the ouster in Clause 13. This refers to the court’s ability to order the disclosure of any information held by or originating from the intelligence services in civil proceedings where the claimant alleges that wrongdoing by someone else has, or may have, occurred; that our intelligence services were involved in the carrying out of wrongdoing, innocently or not; and that the disclosure is reasonably necessary to enable redress to be obtained or a defence to be relied on in connection with the wrongdoing.
As it stands, Clause 13 would deprive the courts of the ability to make such an order in any circumstance. It is a complete and absolute ouster clause. What would this mean in practice? I will illustrate this in the real world. Shaker Aamer is a Saudi Arabian citizen and the last remaining former British resident detained in Guantanamo. Following his capture in Afghanistan in December 2001, he was detained by US military authorities in Afghanistan, and since February 2002, in Guantanamo. Despite repeated requests by the United Kingdom Government, he has still not been released from Guantanamo.
Shaker Aamer maintains that, during his detention by the US military authorities, he has been subjected to torture and cruel, inhuman and degrading treatment. In English proceedings, he sought disclosure of material alleged to be in the Foreign Secretary’s possession supporting his case before the Guantanamo review task force that any confessions that he may have made during his detention were induced by torture or ill-treatment. The basis of his application is the Norwich Pharmacal jurisdiction, as developed in the Binyam Mohamed case.
The Divisional Court gave judgment on 15 December 2009 granting his application subject to hearing further argument on statutory prohibitions and public interest immunity. The judgment records his allegations of ill-treatment during his detention at Bagram air force base, where his interrogators included a member of the UK Security Service, and his interrogation at Kandahar air force base by two members of the UK Security Service. The Divisional Court held that, to the extent that the information held by the Secretary of State supported that claim, it was essential to the presentation of the claimant’s case before the task force. Without the information sought, and without the ability to make submissions on the basis of that information, the claimant’s case could not be fairly considered by the task force of the review panel.
The current Norwich Pharmacal cases are also those of Omar and Njoroge, both of which are death-penalty cases pending in Uganda. Their substantive claims have been heard in the Divisional Court and judgment is still awaited. Both men claim that the Foreign Secretary holds information, in the possession of the intelligence service, that will prove that they were rendered and tortured and that this was part of a plan. I shall not say any more about those cases because they are pending, but those men are on trial for their lives in Uganda.
If the powers of our courts to order disclosure in those cases in the interests of justice are abrogated by Clause 13, these men and other alleged victims of torture and serious ill-treatment who are on trial for their lives, and their security-cleared lawyers if they have them, will be denied access to crucial information. It is not appropriate to describe cases of this kind as “legal tourism”. They have real and close connections with this country and British intelligence actions here and overseas, and they are properly brought in British courts, just as they could be in other common law countries, including the United States, and civil law countries. Given that it has been suggested that this is some novel English jurisdiction, I have summarised the comparative position on a website, www.odysseus trust.org, where one can find the comparative position across the common law world, the civil law world and the United States.
The motivation driving the Bill is the political need to reassure the United States Government and the CIA, and our own intelligence services, that sensitive information imparted in confidence will remain secret. The working relationships between the intelligence services of the UK and the US are subject to an understanding of confidentiality described as the control principle, which is very important.
In the landmark judgment in Binyam Mohamed, the Lord Chief Justice, the noble and learned Lord, Lord Judge, referred to,
“the painstaking care with which the Divisional Court addressed the public interest arguments advanced by the Foreign Secretary. The approach of the Divisional Court ... represented an exemplary model of judicial patience … If for any reason the court is required to address the question whether the control principle, as understood by the intelligence services, should be disapplied, the decision depends on well understood PII principles. As the executive, not the judiciary, is responsible for national security and public protection and safety from terrorist activity, the judiciary defers to it on these issues, unless it is acting unlawfully, or in the context of litigation the court concludes that the claim by the executive for public interest immunity is not justified. Self evidently that is not a decision to be taken lightly”.
I know of no case in which a British court has failed to respect the intelligence relationship between the UK and United States or the need to protect state secrets and national security, including the case of Binyam Mohamed, where the only information ever revealed by a court was information revealed by Judge Kessler in the district court for the District of Columbia in a federal habeas corpus case. When my friend, the noble Lord, Lord Butler, refers to the damage done by that case, he may not appreciate that the only information ever revealed was public and had been revealed in the United States by the federal district court. That, in truncated form, was all that was ever revealed.
Lord Butler of Brockwell
My Lords, I am well aware of that, but the fact is that that was a breach of the control principle. I assure the noble Lord that the United States authorities regarded that as a breach of a sacrosanct understanding between them and the United Kingdom.
Lord Lester of Herne Hill
Yes, surely, just as the previous Government thought that even though in Spycatcher, information had been available throughout the United States, it should be stopped in this country. I do not question the sincerity of the belief, simply its rationality.
I hope that the Minister will be able to confirm in winding up this debate that he agrees with the assessment that the British courts have invariably protected state secrets from harmful public disclosure. It is important that that be on public record for the benefit of our American cousins. The Lord Chief Justice also noted in Binyam Mohamed that it had been accepted by and on behalf of the Foreign Secretary, the right honourable David Miliband, in the litigation that,
“in our country, which is governed by the rule of law, upheld by an independent judiciary, the confidentiality principle is indeed subject to the clear limitation that the Government and the intelligence services can never provide the country which provides intelligence with an unconditional guarantee that the confidentiality principle will never be set aside if the courts conclude that the interests of justice make it necessary and appropriate to do so. The acknowledgement”—
that is, by the right honourable David Miliband—
“that the control principle is qualified in this way is plainly correct, and it appears to be accepted that the same limitation on the control principle would apply in the USA. Presumably therefore our intelligence services accept that although the control principle applies to any information which they disclose to their colleagues in the USA, the ultimate decision on disclosure would depend on the courts in the USA, and not the intelligence services, or for that matter the executive”.
Indeed, in his first PII certificate, the right honourable David Miliband MP fairly recognised that he,
“may well have been inclined to reach a different conclusion on the balance of the public interest were the US authorities not to have made the commitments to make the documents available”
to Mr Mohamed’s US counsel. In other words, the previous Government rightly recognised that the control principle was not absolute. Clause 13 would reverse that.
The Government’s briefing describes the Binyam Mohamed case as controversial. It certainly is, and that remains the view of our ally. Even though the previous British Government sought to provide information about his torture and ill-treatment to security-cleared lawyers so that he could have a fair trial for offences carrying the death penalty, the US Government refused to do so. Even after the federal court had published the information in detail, the British Government persisted in seeking to persuade the English Court of Appeal not to publish for fear of offending our American allies who, according to the Government, have lost confidence in our ability to protect their intelligence, and as a result have put measures in place to regulate or restrict our intelligence exchanges. President Obama deserves better informed advice about our courts. The American Supreme Court has itself said:
“Judicial control over the evidence in a case cannot be abdicated to the caprice of executive officers”.
Finally, in his evidence in the Binyam Mohamed case, Morton Halperin, a senior expert on security issues, gave extensive evidence explaining how both Governments understand that in both countries the right to order the disclosure of information has to be in accordance with law and subject to the judiciary. Surely the US Government understand our parliamentary system of government under the rule of law by the independent judiciary and would accept a decision by our Parliament that the absolute ouster of the courts’ jurisdiction in Clause 13 is disproportionate and unfair. My noble and learned friend the Minister said that Clause 13 will not affect convention rights, but the Government’s handout on the human rights memorandum says that there are no convention rights that would obtain so that is not an appropriate safeguard. I very much hope that limitations can be written in to ensure that Clause 13 will no longer continue as an absolute ouster clause.
Lord Pannick
My Lords, your Lordships’ Constitution Committee, of which I am a member, has published a report which emphasises the constitutional significance of Part 2 of the Bill. The closed material procedure would create broad exceptions to two vital principles of our law: the principle of open justice, that evidence must be given in public; and the principle of natural justice, that each of the disputing parties must have the opportunity to respond to the evidence on which the other relies.
These departures from fundamental constitutional principles arise in the context of the point made in the Supreme Court last year by the noble and learned Lord, Lord Kerr of Tonaghmore, which the noble Lord, Lord Beecham, has already quoted:
“Evidence which has been insulated from challenge may positively mislead”.
These constitutional principles are not sacrosanct—I entirely accept the point made by the noble Marquess, Lord Lothian—but there are two central questions which the House will wish to consider in Committee and on Report. The first is whether the Government can show that the CMP provisions are truly necessary, so as to justify the breach of fundamental principles. The second question is whether the detailed provisions in the Bill allow for a fair balance between competing interests. I was very pleased that, in opening this debate, the noble and learned Lord the Lord Advocate said that he recognised that the Government were aiming for a fair balance between competing interests: security on the one hand and liberty on the other.
As your Lordships have already heard this afternoon, the courts have very long experience in seeking to ensure the confidentiality of information the publication of which would damage the public interest, whether it is national security or any other interest. The law on public interest immunity—PII—has been developed for that purpose. I declare an interest as a practising barrister who has appeared in cases concerned with PII. As the report of your Lordships’ Constitution Committee explains, the Minister produces a certificate and explains that items of relevant evidence cannot be disclosed to the other parties because of national security or some other public interest consideration. The judge then makes an assessment of whether disclosure would harm the public interest and, if so, the judge weighs such harm against the interests of administration of justice and the need to disclose the documents. Because the task of the judge is to balance competing interests, the judge vitally considers whether there are means of preserving confidentiality other than excluding the material from disclosure and other than saying that the evidence cannot be adduced at trial. For example, the court may sit in private. The court may say that there is to be no publication of the names of witnesses such as serving security agents. Disclosure may be restricted to named legal representatives. Most important of all, the judge may decide that the material can be disclosed but only in a redacted form, and that the court will have regard to the redacted form of the material which is seen by all the parties in the case.
The courts have been applying these principles and developing them in PII cases since the decision of the Appellate Committee in Conway v Rimmer in 1968, and indeed before then in Scotland, as the noble and learned Lord the Lord Advocate mentioned—or perhaps it was the noble and learned Lord, Lord Mackay of Clashfern, although both of them have knowledge. I accept, of course, that in some respects the law in Scotland leads the law in England, and this is one of them.
The point is this, and I say it with genuine respect for the noble and learned Lord the Lord Advocate. He wrongly presents PII as a mechanism which, when it applies, necessarily means that the material is excluded from the trial. It is on that premise—a wrong premise, with respect—that he suggests that a CMP is preferable because it will not reduce the amount of information which the other party will receive and it enables the judge to have more information available. The reality, as I have sought to indicate, is that the court has an ability applying PII to devise means by which security and fairness can be reconciled by the use of the mechanisms that I have mentioned. The provisions of this Bill are a long, long way from striking a fair balance between security and liberty or between security and the fair administration of justice, which is the goal stated by the noble and learned Lord the Lord Advocate.
Clause 6(2) obliges the judge to order closed proceedings in relation to material if the judge is persuaded that disclosure of that material would be damaging to the interests of national security. The judge is obliged to order a closed material procedure even if the judge thinks that the case could and should be fairly tried under PII rules and so there is no need for a closed material procedure. The judge may come to that view, if he were allowed to do so, because there are other means of protecting the confidentiality of the material, such as redacting the truly confidential part of it; or perhaps because the material that we are concerned about is of very limited significance in the proceedings, as the judge can see; or because the damage to the public interest by the disclosure of this material might be found by the judge to be absolutely minimal and the damage to the fairness of the proceedings by denying the other party access to it might be substantial.
I suggest that it is quite extraordinary that none of this fair balance is included and that Clause 6(3) requires the judge, when deciding whether to order a closed material procedure, to ignore the possibility of resolving the issues through a public interest immunity certificate. How can that be said to be sensible and proportionate—again, the criteria stated by the noble and learned Lord the Lord Advocate in opening the debate today? If, as I doubt, CMPs are required at all, given the availability of a flexible public interest immunity procedure, the judge surely must have a discretion over whether to impose a CMP, which discretion the judge should exercise only if that is the best available means of securing fairness in the light of confidentiality concerns and having regard to the availability of public interest immunity.
I am also concerned about Clauses 13 and 14—that is, the Norwich Pharmacal provisions. I agree with everything that has been said on that subject by the noble Lord, Lord Lester of Herne Hill. Let us be clear what this involves: those clauses would remove the jurisdiction of our courts to order the disclosure of information to an individual who has a properly arguable case that the representatives of this country are involved in wrongdoing. As pointed out in the powerful memorandum from 50 of the special advocates, these cases may involve the gravest of allegations of wrongdoing —allegations of torture or death abroad in which the authorities in this country are said to be implicated. Surely, in such a context, the House will want to be very careful indeed to ensure that any restrictions on the disclosure of information are strictly necessary.
The Bill would prevent the disclosure of any “sensitive information”—an unjustifiably broad concept, as pointed out today by the noble and learned Lord, Lord Mackay of Clashfern. Disclosure of most of the specified categories of sensitive information under the Bill would be prevented, whether or not it would harm the public interest. The judge makes no such assessment, nor an assessment of whether there is a balance between any harm to the public interest and the detriment to the individual, or indeed the detriment to the public interest by the concealment of this information. Again, I ask the Minister how that can satisfy the attractive criterion that he stated when he opened this debate:
“protecting the public should not come at the expense of our freedoms”.
Why are these provisions being brought forward? It is primarily because of the experience in the Binyam Mohamed case in 2010. The Government’s concern, which I understand, is that the courts should not require the disclosure of information supplied in confidence to the security services of this country by the security services of our allies. There are two points here. The first is that the provisions that we will be debating in Committee, Clauses 13 and 14, are not confined to information supplied in confidence by a foreign intelligence service when disclosure would damage our relations with that service. The second and perhaps more fundamental point is that there is absolutely no material—the noble Lord, Lord Lester, made this point—to suggest that courts allow or order the disclosure of confidential information that has been supplied to the security services of this country by our allies. The courts have a record of recognising, rightly, the vital importance of protecting national security and the sources of information that go towards it.
It is vital to recollect that in the Binyam Mohamed case the Court of Appeal, the final court that heard the matter, made it clear that the only reason why it was ordering publication of the relevant information was that that very information had already been publicly disclosed by reason of an order made by a court in the United States. The three judges in the Court of Appeal—Lord Judge, the Lord Chief Justice; Lord Neuberger, the Master of the Rolls; and Sir Anthony May, the president of the Queen’s Bench Division—stated expressly that they would not have ordered publication in defiance of the statement made by the United States authorities that disclosure of the information would damage national security there and a statement by Ministers here that disclosure would damage our national security because of the need to maintain a relationship of trust with the United States, even though the court was highly sceptical of those claims, but for the fact that that very material had been published by reason of a court order in the United States. If this is the basis of the concern of the security services, which presumably are responsible for asking the Government to bring forward these measures, they simply have not learnt the basic lessons from the Spycatcher case.
The Minister sought to assure and reassure the House that Clauses 13 and 14 would not prevent claims by litigants who allege that they have been the victims of serious wrongdoing. What he ignores for that purpose, though, is that without the disclosure of the information such claims cannot in practice be pursued. That is precisely why in 1973 the Appellate Committee created the Norwich Pharmacal jurisdiction that is the subject of Clauses 13 and 14.
On the case made so far by the Government, the provisions of Part 2 of the Bill regarding both CMPs and Norwich Pharmacal orders are, I suggest, unnecessary and unfair, and will undoubtedly damage the ability of the courts to give judgments that are fair and are seen to be fair.
Lord Mackay of Clashfern
Before the noble Lord sits down, he has referred several times to my noble and learned friend as the Lord Advocate. The Lord Advocate is now an officer in Scotland; my noble and learned friend is the Advocate-General. I understand perfectly what the noble Lord said, but I just wanted to get it right for the record.
Lord Pannick
I am very grateful; I was carried away with enthusiasm for the merits of the debate. I apologise to the Minister, and I hope that that was the only error that the noble and learned Lord, Lord Mackay, could find in the points that I was making.
Civil Service Reform
(12 years ago)
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Lord Wallace of Saltaire
My Lords, with the leave of the House, I will repeat a Statement on the Civil Service.
“The British Civil Service plays a crucial role in modern British life. It is there to implement the policies of the Government of the day, whatever their political complexion, and its permanence and political impartiality enables exceptionally rapid transitions between Governments.
Most civil servants are dedicated and hard-working, with a deep-seated public service ethos, but like all organisations, the Civil Service needs continuous improvement. I want today to set out the first stage in a programme of practical actions for reform.
In 2010 we inherited one of the largest budget deficits in the developed world, and, despite success in improving Britain’s financial standing, we still face significant financial and economic challenges, as well as rapid and continuing social, technological and demographic changes. The Government have embarked upon a programme of radical reform of public services to improve quality and responsiveness for users and value for the taxpayer.
In order to succeed we need a Civil Service that is faster, more flexible, more innovative and more accountable. Our Civil Service is smaller today than at any time since the Second World War, and this has highlighted where there are weaknesses and strengthened the need to tackle them.
We need to build capabilities and skills where they are missing. We need to embrace new ways of delivering services. We need to be digital by default. We need to tie policy and implementation seamlessly together. We need greater accountability, and to require much better data and management information to drive decisions more closely. We need to transform performance management and career development.
Today Sir Bob Kerslake, the head of the Civil Service, and I are publishing a Civil Service reform plan, which clearly sets out a series of specific, practical actions to address long-standing weaknesses and build on existing strengths. Taken together, and properly implemented, these actions will deliver real change. They should be seen as the first step on a programme of continuing reform for the Civil Service.
This is not an attack on the Civil Service, and nor have civil servants been rigidly resistant to change. The demand for change does not come just from the public and from Ministers but from civil servants themselves, many of whom are deeply frustrated by a culture that is overly bureaucratic, hierarchical and focused on process rather than outcomes. This was revealed in the responses to our ‘Tell us How’ website, which aims to get fresh ideas from staff about how they could do their jobs better. Civil servants bemoaned a risk-averse culture, rampant gradism and poor performance management.
This action plan is based heavily on feedback from civil servants, drawing on what frustrates and motivates them, while many of the most substantive ideas in this paper have come out of work led by Permanent Secretaries themselves. Reform of the Civil Service never works if it feels like it is being imposed on civil servants by Ministers, and neither would it succeed if the Civil Service was simply left to reform itself. Because we want this to be change that lasts, we have discussed these proposals widely, including with former Ministers in the last Government to draw on their experiences and ideas.
The Civil Service of the future will be smaller, pacier, flatter, more digital, more accountable for effective implementation, more capable, and more unified, consistent and corporate. It must also be more satisfying to work for. These actions, therefore, must help to achieve this.
Under published plans, the Civil Service will shrink from around 500,000 to around 380,000 by 2015. It is already the smallest since World War II. Sharing services between departments will become the norm. This has been discussed for years—it is now time to make it happen.
Productivity also needs to improve. For too long, public sector productivity was at best static, while in the private services sector it improved by nearly 30%. Consumer expectations are rising, and there is, as we have been told, no money. The public increasingly expect to be able to access services quickly and conveniently, at times and in ways that suit them.
We are conducting a review with departments to decide which transactional and operational services can be delivered through alternative models. Services that can be delivered online should be delivered only online. Digital by default will become a reality, not just a buzz phrase.
We should no longer be the prisoner of the old binary choice between monolithic in-house provision and full-scale privatisation. We are now pursuing new models: joint ventures, employee-owned mutuals, and new partnerships with the private sector. MyCSP, which manages the Civil Service Pension Scheme, became the first joint venture mutual to spin out of government recently, and provides a model for future reforms.
The Civil Service culture can be slow-moving, hierarchical and focused on process rather than outcomes. Changing this would be very hard in any organisation. We can make a start by cutting the number of management layers. There should only exceptionally be more than eight layers between the top and the front line, and frequently many fewer. This helps to speed up decisions and empower those at more junior levels. Better performance management needs to change the emphasis in appraisals emphatically towards delivery outcomes, and to reward sensible initiative and innovation. We also need to sharpen accountability, which is closely linked to more effective delivery.
Management information in government is poor, as the NAO and the PAC, the Institute for Government and departmental non-executive board members have all vigorously pointed out. By October this year, therefore, we will put in place a robust and consistent cross-governmental management information system that will enable departments to be held to account by their boards, Parliament, the public and the centre of government.
We will make clearer the responsibilities of accounting officers for delivering major projects and programmes, including the expectation that former accounting officers can be called back to give evidence to the Public Accounts Committee.
The current arrangements, whereby Ministers answer to Parliament for the performance of their departments and for the implementation of their policy priorities, will not change. However, given this direct accountability to Parliament, we believe that Ministers should have a stronger role in the recruitment of a Permanent Secretary.
We will therefore consult the Civil Service Commission on how the role of the Secretary of State can be strengthened in the recruitment process of Permanent Secretaries. The current system allows the selection panel to submit only a single name to the Secretary of State. At other levels, appointments will normally be made from within the permanent Civil Service or by open recruitment. However, as now, where the expertise does not exist in the department, and it is not practicable to run a full open competition, we are making it clear that Ministers can ask their Permanent Secretaries to appoint a very limited number of senior officials for specified and time-limited executive and management roles.
By common agreement both inside and outside the Civil Service, there are some serious deficiencies in capability. Staff consistently say in surveys that their managers are not strong enough in leading and managing change. In future many more civil servants will need commercial and contracting skills as services move further towards the commissioning model. While finance departments have significantly improved their capabilities, many more civil servants need a higher level of financial knowledge. As set out elsewhere in the plan, the Civil Service needs to improve its policy skills, and to fill the serious gaps in digital and project management capability.
By autumn we will have for the first time a cross-Civil Service capabilities plan that identifies what skills are missing and how gaps will be filled. For the first time, therefore, leadership and potential leadership talent will be developed and deployed corporately.
In 1968, the Fulton commission identified that policy skills were consistently rated more highly than skills in operational delivery. This is still the case today. We will establish the expectation that Permanent Secretaries appointed to the five main delivery departments will have had at least two years’ experience in a commercial or operational role. We will move over time towards a more equal balance between those departmental Permanent Secretaries who have had a career primarily in operational management and those whose career has been primarily in policy advice and development.
A frequent complaint of civil servants themselves concerns performance management. They feel that exceptional performance is too often ignored and poor performance is not rigorously addressed. In the future, performance management will be strengthened by a Senior Civil Service appraisal system that identifies the top 25% and the bottom 10%, who will need to show real improvement if they are to remain in the service. Departments are already introducing similar appraisal systems for grades below the Senior Civil Service.
The Government are committed to ensuring that the Civil Service will be a good, modern employer and continues to be among the best employers in the country. Departments will undertake a review of terms and conditions to identify those that go beyond what a good, modern employer would provide. We will also ensure that staff get the IT and security they have been asking for so that they can do their jobs properly.
Another key goal is to improve and open up policy-making so that there is a clear focus on designing policies that can be implemented in practice. Too often in the past, policy has come from a narrow range of views. Whitehall does not have a monopoly on policy-making expertise and in the future open policy-making will become the default. We will create a central fund to pilot policy development commissioned from outside Whitehall.
I repeat that this plan is just the first stage in a programme of reform and continuous improvement. It responds to concerns expressed by Parliament, Ministers and former Ministers but, most importantly, civil servants themselves. None of the actions in the plan is in itself dramatic and none will matter unless it is properly implemented. But together, when implemented, they will represent real change. I will oversee the implementation of this plan. As the paper sets out, Sir Bob Kerslake, the head of the Civil Service, and Sir Jeremy Heywood, the Cabinet Secretary, will be accountable for its delivery through the Civil Service Board.
Change is essential if the Civil Service is to meet the challenges of a fast-moving country in a fast-changing world. I commend the plan to the House”.
My Lords, that concludes the Statement.
Baroness Hayter of Kentish Town
My Lords, first, I thank the Minister for repeating the Statement and therefore giving us the opportunity to comment on it. The Civil Service is key to the provision of public services. Thus, whether we are ensuring the country’s security, educating its children, raising taxes, paying benefits or safeguarding the vulnerable, plans for how to achieve high-quality services and their delivery rely enormously on the staff who create and deliver these. The structures, recruitment, training and management of this cadre of staff are a vital part of our delivery of services to the citizenry. The more effective we are in developing and implementing polices, the more we can achieve in improving the lives of all. That means getting value for money out of every pound spent, whether it is on staff, IT or delivery services. That is important because it leaves more for the end user. The more effective the civil servant, the more resources are released to reach that end user of whatever initiative we have in mind.
For that reason, we welcome the Statement, much of which we should be able to endorse, particularly the aim of focusing on outcomes rather than process, a less hierarchical structure, a pacier—I like that word—regime, speeding up decisions, empowering those working at more junior levels and an emphasis on managing change. All these, and other parts, are to be welcomed, but perhaps the Minister will answer just a few questions on the Statement.
First, while welcoming taking advice from a wider section of stakeholders, experts and academics than there may be in Whitehall, how does that sit alongside the Conservatives’ endless attacks on our similar use of consultants when we were the Government and used them for exactly this purpose? Secondly, does the Minister accept that amending policy as it is implemented—learning from mistakes, in the wise words of Sir Terry Leahy in today’s Guardian—is also vital to any project? That is much harder if there is any split between the external blue-sky thinking and the implementation process. We can see that with the introduction of universal credit where there is a horde of little devils who dwell in the detail. We see it in the Dilnot commission where its hard policy thinking now needs robust resource and policy advice to combine ideas with practical politics. We will look carefully at the suggestion of piloting policy development outside Whitehall.
Thirdly, given that the public service is about delivery—whether collecting taxes, paying out pensions, running courts, staffing our national borders or overseeing financial services or the Insolvency Service—does the Minister acknowledge that this often means sufficient staffing, whether at Heathrow or GCHQ? Will he reassure the House that the cut in numbers will not leave empty seats just where they are most needed?
Fourthly, will the Minister outline the discussions he has held with stakeholders, trade unions and others on these proposals? Is it to be a top-down initiative or a genuine collaborative effort to improve the quality and value for money that we get from this public resource? We know that morale is low, with 30% of the top echelons having left. Will these plans promote or reduce the staff’s confidence in their own profession and, in the words of the Statement, make the service “more satisfying to work for”?
Fifthly, are there proposals within this to ensure a more diverse Civil Service, particularly in extending well beyond Oxbridge and the south-east, and increasing gender and ethnic diversity? Sixthly, while applauding the proposals for training and developing “leadership talent”, this costs money, especially as the Government have closed the National School of Government. Will the Minister tell us what budget has been set aside for this implementation and what impact assessment has been made of the proposals? Seventhly, what will success look like with these reforms? How will the Minister measure whether the plans achieve their ends?
Finally, public servants serve us all. Sometimes they can do that best when they say, “No, Minister”. Will the Minister assure us that nothing in these proposals will undermine the ability of senior civil servants—say, fear of dismissal or loss of income—to advise a Minister that a brilliant-sounding scheme might be hare-brained? The impartiality of our Civil Service will be in jeopardy if the people at the top of our policy advice and implementation profession only say, “Yes, Minister”.
We look forward to examining the detail of these proposals. Where the Government get it right in the need to modernise and improve our Civil Service, we will stand by with our advice and support. We look forward to further discussions on this.
Lord Wallace of Saltaire
I thank the noble Baroness very much for her cross-party welcome for these proposals. Indeed, much in them builds on and extends the experience of the previous Government. As she will know from watching the exchanges in the Commons, a number of former Ministers also welcome the proposals and regretted that in one or two respects they did not go further. I shall do my best to answer her questions. The search for an effective and efficient Civil Service is constant, and one has to return to it every few years. The demands on the Civil Service are rapidly changing. The digital revolution is an enormous challenge for the Civil Service and for all of us. Those changes are part of what is driving this whole process.
Perhaps I may say as a former academic and think-tanker that outside advice from academics and think tanks comes far cheaper than management consultants. I say that partly with bitter regret at how cheaply I sold myself on occasions to government. However, that is part of what is intended. As the plan sets out, there is a preliminary budget of £1 million for piloting this access for outside advice. I assure the noble Baroness that we are thinking not so much about going back to the consultants who provided their extremely expensive advice but about drawing on outside think tanks and the wealth of academic advice that we have in this country and elsewhere. Again, the previous Government did a certain amount of this; indeed, in the Cabinet Office only yesterday I met an academic whom I know very well and who I know was actively engaged in advising the previous Government.
In terms of ideas and implementation, we are already piloting some delivery models and this is very much a process that we will be pursuing. Those following this will know that the idea of mutuals is being tested. There is already some evidence that it improves the morale and therefore the effectiveness of those involved, and it will be taken further if it proves successful.
Something that we are also always looking at is whether we are sufficiently staffed in the right places. Sometimes you find that you have too many staff in one area and not enough in another. Those of us familiar with the BSE scandal will remember that part of the problem was that not enough staff were left in place for the contingencies that took place. It is a constant problem.
On consultations, I simply repeat that there were very wide consultations inside the Civil Service. Some of us were a little frustrated that more civil servants appeared to have seen earlier drafts of this paper than we had. The extent to which senior and relatively junior civil servants had their views taken into account was very wide. That has very positive implications for morale because, if you are carried along with proposals for change, you feel that you are part of it.
As far as the diversity of the Civil Service is concerned, I think that our predecessors, the Labour Government, did extremely well with this, particularly regarding the number of highly talented women in the Civil Service. The departments that I am aware of also have a much higher number of people from different ethnic minorities. I asked a rather senior ethnic minority civil servant what he would say to a young woman of Chinese origin in the Civil Service—a former student of mine—who asked me whether there were any barriers to getting to the top. He said he had not noticed any. I compliment our predecessors on how far they moved on that and assure them that we are continuing very much along that line.
In terms of the budget for implementation, this plan builds in the promise that there will be at least five days of training per year for officials. Civil Service Learning is setting out how this will be done using a range of different providers inside and outside the Civil Service.
We are constantly looking for metrics and measures of success. Management information systems are of course best for measuring the achievement of success, and improving management information systems is a vital part of this.
Finally, I turn to the independence of and challenge for senior civil servants. I can only quote what a senior civil servant who is a very good friend of mine said to me many years ago. He said that at a certain level a competent senior civil servant should always have at the back of his mind that he could move before telling Ministers his thoughts. That was under the previous Government. I think that a number of senior civil servants would say the same but we are always looking for robust and independently minded civil servants who will express their thoughts to Ministers. Of course, the other side of that is that Ministers need to accept that their relationship with officials has to be on that basis.
Baroness Turner of Camden
My Lords, it so happens that this evening the Public and Commercial Services Union is holding its annual parliamentary reception in the Strangers’ Dining Room, so I went along to talk to its members. I found that they were very concerned because they believe there is the possibility of hundreds of redundancies and they do not seem to have had very much consultation or negotiation. I promised them that I would faithfully represent them as far as consultation is concerned.
Criticism in certain areas of public work has indicated a lack of public acceptance, but members pointed out that, rather than fewer public servants, in many instances there is a case for having more. They pointed out, for example, that at airports there were very long queues because there simply were not enough staff. That is true in many areas of public service where the union believes there should be more public servants rather than fewer.
Public service is very necessary to ordinary people. If you are very rich, you do not rely on public services, but if you are not very rich you do. Therefore, an effective public service is something that we expect the Government to provide. From what the officials of this union told me—and one must remember that they represent 280,000 public servants—it is quite clear that they do not feel they have been consulted or had the opportunity to negotiate on what is a very substantial plan. Is the Minister making arrangements for this union and other unions in the sector to be properly consulted and properly involved before we proceed with what seems to be a very large upheaval within the provision of public services?
Lord Wallace of Saltaire
My Lords, I can promise the noble Baroness that there is a constant dialogue with all the unions. I am sorry that the PCS feels it has not been consulted sufficiently but I am well aware that the dialogue goes on. I am also well aware that people in all sectors of society have contact with the public service. If the noble Baroness has read the Times today she will know that there are some rich people who prefer not to hear from HMRC, but HMRC is indeed determined that they should hear from it.
Lord Shutt of Greetland
My Lords, it is true that managing change and driving though radical policies can prove difficult. It is also true that there are areas where the private sector can and does deliver good-quality public services at competitive costs. We should not be opposed to moving the boundaries between public and private sector delivery of public services where it can be justified or in testing payment by results as a way of promoting greater efficiency and value for money for the taxpayer. However, for the past 140 years we have benefited from a public service selected on merit and political neutrality. As someone who stood down from government last month, I can say that I found civil servants civil, hard-working and helpful. Does the Minister agree that we should not approach public sector reform with a mindset of “public sector bad, private sector good”?
I do not think there is evidence that the public sector yet has in place the kind of legal, contractual and commissioning expertise to make sure that the taxpayer is going to be properly protected or the quality of service required guaranteed. Does the Minister agree that it is essential that the reforms have built into them full and proper systems of parliamentary accountability? We must ensure that, in commissioning externally sourced policy-making, we do not fall into the habit of commissioning external consultancy almost as an alternative to ministerial decision-making.
Lord Wallace of Saltaire
My Lords, as we all know, a number of processes are under way. This Government are also committed to decentralisation as far as possible, and one reason why the central Civil Service will shrink is that more decisions and areas of policy delivery are being put down to the local level. Some of this will be carried out through local authorities; some of it will be carried out through mutual and other agencies. The division between the public and private sectors is not entirely a binary one; there is also, as we all know, the third sector or voluntary sector. I think we all agree that, together with the decentralisation of the delivery of public services, some services are better delivered as a partnership between the public sector and the third or voluntary sector. All those processes are under way. Put together with the technological revolution that is pushing us towards a much greater dependence on digital services, this is part of the revolution we are facing.
On the question of parliamentary accountability, there is less in this plan on the details of accountability than there might otherwise be because there has been a deliberate decision to await the study of the House of Lords Constitution Committee on that very area. That will feed into further consultations on how we strengthen accountability to Parliament. However, noble Lords will be aware that the role of Commons parliamentary committees in particular in relation to the Civil Service has strengthened over the years. I was reading the Osmotherley Rules earlier today and began to look at how they may need to change further as part of this. That is the sort of thing that the Constitution Committee will be considering.
Lord Butler of Brockwell
My Lords, the Statement paid lip service to the quality of the Civil Service but it sounded to me—as, I am afraid, it will sound to many civil servants—like a litany of criticisms. Will the Minister accept from me that, while proposals for improved performance by the Civil Service are always necessary and welcome, it is essential to their success that the Civil Service should be led and not just driven—as the Statement said—and should not be reviled and unattributably dumped on when Ministers’ policies run into difficulties?
Lord Wallace of Saltaire
My Lords, I strongly agree with that. I am very conscious—again, I make a non-partisan remark—that there have been occasions under successive Governments over the past 50 years or more when some Ministers have occasionally wished to blame their civil servants for things not happening. I would be extremely upset if the noble Lord interpreted this plan as being an attack on the Civil Service. We have emphasised very strongly that that is not the case and that it has come out of a partnership between Ministers and the senior Civil Service with extensive consultation. We value the quality of leadership within the Civil Service. I am one of the many within government who have serving and former civil servants as close members of their family. It matters very much for the quality of our society, our public services and our country as a whole that we have the best-quality Civil Service working for government and the state as a whole. We very much hope that this plan strengthens that.
Lord King of Bridgwater
My Lords, I very much support much of what the noble Lord, Lord Butler, said. Although it is perhaps not a series of attacks, the Statement rather dodges along a line that opens it to that sort of criticism. With the Government talking as they are, perhaps I may repeat the phrase, “There are no bad men, only bad officers”. The need for leadership in the Civil Service is absolutely critical, and I very much support many of the practical measures in the Statement. The devil will be in the detail, but the figure that hits very hard is that there will be a 25% reduction in Civil Service numbers over the next three years. This has happened before and, in some cases, it has been achieved simply by transferring people to independent agencies and moving them out of the Civil Service. Can my noble friend give some indication of how those figures are to be achieved and to what extent it will be a case of smoke and mirrors or of a genuine reduction in Civil Service numbers? If local government is to take up some of the strain in areas that have been covered by the central Civil Service, will that involve an increase in numbers in local government?
Lord Wallace of Saltaire
My Lords, I merely repeat that this is not intended in any sense as an attack on the Civil Service and we very much value its quality. A certain amount will be achieved by putting more on to the digital level, and this is well under way. Members of this House may remember our discussions about universal benefits and the extent to which that scheme will enable us to provide those sorts of payments and services more efficiently with fewer staff. That is the sort of reduction that we see coming through. We plan for more services to be provided in partnership with local authorities and through third-sector organisations. We are already experimenting with that sort of model.
Baroness Symons of Vernham Dean
My Lords, perhaps I should remind the House that in a former life, quite a long time ago, I was the general secretary of the First Division Association, which represents senior civil servants.
In the Statement, the Minister said, “We need a Civil Service that is faster, more flexible, more innovative and more accountable”. No one could argue with that as a general statement, but the whole issue is about how that is to be achieved. I do not think that the Minister properly answered the question of the noble Lord, Lord King, about how you achieve a reduction of 120,000 civil servants in less than three years—only two and a half years. Is there going to be a system of compulsory redundancy and, if so, has that been costed? To what extent will there be a charge on the public purse for compulsory redundancies? Those are crucial questions when we are arguing about something that ought to be costing less money.
The real point at issue in the Statement arises in relation to the future appointment of senior civil servants. It stresses the importance of political impartiality but we are told that the role of Secretaries of State will be strengthened in the recruitment of Permanent Secretaries. It is the duty of civil servants to maintain the confidence in their impartiality not only of Ministers but of those who may become Ministers after a general election. How does the noble Lord reconcile the appointment process, which includes politically appointed Ministers, whereby politically impartial civil servants can pass over to a new set of Ministers? Will there be a requirement for Permanent Secretaries appointed in that way to resign at the time of an election? It is an important point about the confidence of the Opposition.
It was also said in the Statement that it may not be practical to run “full and open” competitions. When will it not be practical to do so? How will the diversity of the Civil Service and the opportunity for women and people from ethnic minorities to break into the Civil Service ranks be maintained in those circumstances? At the moment, they come in through open competition.
Lastly, the Statement says that, “Ministers can ask their Permanent Secretaries to appoint a very limited number of senior officials, for specified and time-limited executive and management roles”. This is an important point. There was such a fuss in 1997 when two politically appointed people were, under Privy Council terms, given executive and management roles. I have to say that the Conservative Party going into opposition went ballistic about it. What will be done about this? Will it be done under Privy Council terms, and will those contracts be terminated on a change of Government? Those are very specific questions.
Lord Wallace of Saltaire
My Lords, as the plan states, the proposals on the role of Secretaries of State in very senior appointments are to be discussed with the Civil Service Commission. The proposals have been discussed with former Labour Ministers, and there have been criticisms from former Labour Ministers in the other place that these proposals do not go far enough. We have not committed ourselves fully on this, and there is therefore a dialogue to be had about the future relationship between the appointment of permanent secretaries and the role of Secretaries of State. Jack Straw said in the other place that he did not find our proposals terribly surprising because on three occasions he had insisted on having an active role in the appointment of permanent secretaries. So although we are not entirely moving from one world to another, we are discussing how much further we should move along a continuum.
On the scale of reduction under way, departments are already engaged in processes which will reduce numbers without compulsory redundancies. I will write to the noble Baroness if substantial compulsory redundancies are on the way. However, seven out of 10 civil servants are involved in the big five delivery departments: the Ministry of Justice, the Home Office, HMRC, the Ministry of Defence and the UK Border Agency. Many of them turn over at a rate which I anticipate enables us to avoid very substantial compulsory redundancies, but if I am incorrectly briefed on this I will write to the noble Baroness afterwards.
Baroness Browning
I attended many courses at the National School of Government over the years, and I always reminded it that it was the best in the world. However, I recognise in the report today the need for change within the Civil Service, and I welcome it. Having had 15 years out of Government I returned last year to ministerial office, and I recognise some of the needs here, particularly in changing the culture. However, in making the changes that are needed, particularly in terms of management within the Civil Service and the skills needed by Ministers—because ultimately the buck stops at the Minister’s desk—it is very important to ensure that we do not confuse management systems that deliver competent management and those that lack the leadership skills that make the difference in culture. It is quite possible to be a competent manager at any level, but if you do not have the leadership skills you will get a culture as described in this document today—and again that applies as much to Ministers as it does to the Civil Service. I hope my noble friend will ensure that we do not miss out on what is a very important part of making these important changes.
Lord Wallace of Saltaire
My Lords, my noble friend is right to point out that a number of things fit together here. Extending the role of Parliament in holding the Government and the Civil Service to account, which is part of what the Constitutional Committee will be discussing, will be continuing with what has evolved over the last 20 years with the relevant Commons committees. The question of the management skills of Ministers is very much a cross-party thing that we all need to discuss a great deal more. We do not currently train Ministers. We also need to discuss the changing role of the Civil Service itself. One point I did not answer for the noble Baroness, Lady Symons, was the question of the impact of these proposals for ethnic minorities and women. I remind the noble Baroness that for the first time, some six months ago, we reached the point at which there were more women than men at the level of Permanent Secretary. That is a real breakthrough. We have also had our first ethnic minority Permanent Secretary. Having a close female relative rising up the Civil Service, I hope this is a trend which will go further.
Lord Brooke of Alverthorpe
I welcome parts of the Statement, and I welcome the conversion of the Minister who made the Statement in the other place. He was the man who was in charge of the Next Steps programme in the 1990s, which broke the Civil Service down into smaller pieces and split it up. He is now happily seeing the errors that were made, and bringing parts of it back together again.
I am concerned about the way in which we keep moving forward with changes in public service operations without actually speaking to the customers or the taxpayers. This is another example where the default position will be open policy making, where in fact the taxpayers and the citizens have not been involved one iota in this exercise. If they had been, we would have heard more complaints. I have a former connection with the Inland Revenue as I was the general secretary of the Inland Revenue Staff Federation. If you go online now, you do not necessarily get answers to internet inquiries; if you go on the telephone, as was recently published, you wait longer for a reply from the Revenue than you did two years ago; and if you come into the country, you queue longer at one and two o’clock in the morning. In so many areas of the departments the Minister has just mentioned the Civil Service is falling down. Now we are faced with a cut from 500,000 down to 380,000 civil servants within the space of three years, on top of the other changes already taking place. I think an awful lot of taxpayers are going to be very unhappy indeed with the services that they will get in the next few years, unless there can be a quite different approach to that which we have adopted so far.
I hope there will be a way in which we can look at how we measure efficiency. Take two building societies, A and B, and put them together. Get a new computer system, cut the number of staff employed, and you can say that you have increased the company’s efficiency. Invariably, in practice you find that the customer suffers and waits longer for services from that combined building society. We have tried to bring the same principles to bear within the Civil Service. I hope we can have a clearer definition of what efficiency means. I am not against changes, or reductions in numbers, provided that ultimately the service will be better. However, there is nothing in this statement to prove that it will be.
Lord Wallace of Saltaire
My Lords, I accept that challenge. The effectiveness of these proposals will indeed need to be challenged precisely in terms of how they impact on the quality, effectiveness and speed of delivery, and the satisfaction of the citizens who are receiving those services. Before we close, I remark that this is also part of a long process of change in the Civil Service. The proposals in the plan for bringing together some core services across Whitehall—the management of major projects, human resources, digitisation—are also part of trying to make a more economical and unified Civil Service. As I have observed in the five departments I have worked across since I joined the Government, there are real cultural differences between a number of departments across Whitehall, and we will benefit from bringing departments together, rather more into a single corps. We have also been looking at the estate of the Civil Service, and making a number of changes which make for more effective use of that estate. This will also provide a number of efficiencies and savings. However, I accept the challenge that a number of noble Lords around the House have made, which is that the impact of all of this will be seen in the quality of the services that are provided, we hope, with much greater productivity, efficiency and effectiveness in three to five years’ time.
Justice and Security Bill [HL]
(12 years ago)
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Baroness Stowell of Beeston
My Lords, as we continue the Second Reading debate on the Justice and Security Bill, and at the risk of sounding boring, I feel duty-bound to remind noble Lords that speeches from Back-Benchers are expected to be kept within 15 minutes. When I remarked on this earlier, I should have stressed that exceptions to those guidelines are made on occasion, rather than frequently.
Lord Hodgson of Astley Abbotts
My Lords, as we return to the debate on this very important second reading, I need to begin by saying I am not a human rights lawyer. I am not a lawyer at all. I have had no contact or involvement with the intelligence or security services, so I tread rather warily and carefully into this specialist area for fear that the ground may open and swallow me up.
My interest in this area comes about because I am the treasurer of the All-Party Group on Extraordinary Rendition. I am also a trustee of Fair Trials International. Therefore in my rather amateurish and non-legalistic remarks, I want to focus on what seem to me as a layman some of the dangers and challenges of Part 2 of the Bill. My experience in those two particular roles is that the processes of international justice, or perhaps I should say, justice with an international aspect, do not always proceed as smoothly or as even-handedly as we all would wish.
The issue of partial access to information and the inability to check its veracity causes me concern because of what happens at Fair Trials International. The average FTI case usually involves someone of modest means being somehow swept up in the proceedings. By definition, the proceedings are normally abroad and the partial sharing of information and the inability to challenge their veracity comes about because the defendant does not understand what he is being accused of because it is in a foreign language, which means that he cannot test the truth of the case against him. All too often, once the full facts are laid out and once everyone knows what is being complained of, the defence is able to ensure that the case falls away. I want to ensure that in the Bill we are not creating circumstances in which these sorts of events become prevalent.
My second general concern stems from the fact that in my professional life I have worked in the City and I have spent some time as a regulator. The regulator of financial services has to create a balance, not on the époque-like matters that we are discussing this afternoon, but on the level of regulation. Too much regulation will be very expensive in money or management-time terms, will discourage innovation and will diminish the reputation of the financial community of this country over a period of time. On the other hand, too little regulation, with a free for all, no standards of behaviour and lower market confidence, will have the same effect. So I quite understand that a balance has to be struck.
However, the danger in real life is that regulators are, by their very nature, risk averse. An innovation that never happens reflects no discredit on a regulator but a failure does: it is public, it is controversial and it damages reputation. There is an inevitable tendency to raise the bar. In effect, there is always a danger of what we call regulatory capture. As we go through the Committee stage of the Bill, I want to be convinced that there is not an equivalent of regulatory capture taking place in this area.
My third general point, which is more specific to this Bill, is that I am currently undertaking a review of the Charities Act for the Government and there have been strong suggestions from certain quarters that charities in the United Kingdom are raising considerable sums of money which are to go overseas for purposes that are less than charitable. That is a serious accusation. The fact that donations in this country, no doubt enhanced by gift aid, should end up in the hands of al-Shabaab or the Taliban, is indeed worthy of investigation. When one looks into it in detail and asks for even minor facts to be produced, there is very little. There are a few wisps of smoke perhaps but certainly no fire. The Charity Commission has been called on to investigate only a handful of cases. That sort of broad statement about our intelligence and security, which is long on assertion but which turns out to be very short on fact, makes me concerned about whether we have the balance of the Bill right and whether what we may be surrendering in our civil liberties is yet justified.
As a result of this Bill, if I read it correctly, we are going to surrender, or certainly substantially amend, the right of citizens to hear and to challenge all the evidence presented by the state against them in the High Court and substantially amend the right of victims of kidnap, rendition, torture and other unlawful abuse to obtain evidence from the state to help to prove their case. That right applies only where the state has been involved in, or has facilitated, the commission of the wrongdoing.
If we are to surrender those two substantial matters, why are existing processes for the public interest immunity certificates suddenly inadequate? I understand that the system of PII has been operating for more than 50 years without significant government complaint. As the noble Lord, Lord Pannick, said, in applying the PII system, the courts have a raft of weapons that they can deploy to keep confidential the sensitive features of government evidence while permitting the essentially relevant parts to be disclosed. These include hearing parts of a case in camera with both parties represented; the use of confidentiality rings; redacting the sensitive parts of documents to which the noble Lord referred; allowing evidence to be gisted; and directing informers or secret agents to give evidence anonymously behind screens. My noble and learned friend Lord Mackay in his remarks earlier said that there were residual issues which were not covered by these provisions. I understand that and I obviously will stand corrected by him. I look forward to having a chance to discuss what those residual issues are. The report from the special advocates, who I assume know a bit about this area and certainly a great deal more than I do, says in paragraph (7):
“There is no fundamental difficulty with the existing principles of public interest immunity … which have been developed by the courts over more than half a century and which enable the courts to strike an appropriate balance between the need to protect national security (and other important public interests) and the need to ensure fairness. Nor is there any sufficient evidence that the application of these principles has caused insuperable logistical difficulties in any particular cases”.
That is my first broad concern.
My second broad concern is the assertion that CMPs are being used. A judge will still be able to weigh up the strength of the evidence before deciding whether a CMP may be used. I understand from what my noble friend was saying earlier from the Front Bench that it is a procedure which could be described as PII light. When I see the use of the words “must” and “must ignore” in Clause 6, it seems to me that the judge will have relatively little discretion. Reviewing evidence and making an assessment seems to me to be one thing—that is the PII procedure—but presumably the Secretary of State will turn up at the court and make a strong assertion that national security is involved, otherwise why would you have a CMP application? I leave it to those of your Lordships' House who are involved in the legal profession to tell me whether or not a court is likely to rebut such an assertion involving national security. My view is that it seems unlikely but I have no direct evidence.
My concerns on this point are further increased by the lack of transparency about CMP procedures and the extent to which they will be used. I can find no provision for closed judgments to be opened up at a later date, when secrecy is no longer required, so that the public can see how they worked; I see no requirement for notice to be given by the Government that a CMP will be sought; and I see no requirement for any reporting of the number of requests for and granting of CMPs. These are the pieces of information which should at least shed some light on this difficult area and go some way to reassuring us and the general public.
My third and final point is to repeat what has been said by other noble Lords about the Norwich Pharmacal case in Clause 13, where I believe that subsection (3), which defines “sensitive information”, is extremely broad and frankly could be used to cover almost any sort of information that the Government of the day might find it helpful to include.
I want to reassure my noble friend that I am not nihilistic about the Bill, nor am I naive about it. I do not think that the world is an entirely sunny place. Nor do I think that it is filled exclusively with friendly people of a sunny disposition. Further, I certainly do not wish to belittle, demean or hinder the activities of our security services. I am profoundly grateful to those men and women who are prepared to devote their careers and sometimes their lives to keeping me, my family and the country safe. Those men and women also have civil liberties that need protecting, which is why I still remain to be convinced that the balance of the Bill is right.
Lord Dubs
My Lords, I am not a lawyer and I have searched my mind about whether I have ever seen an official secret in my life. The answer is that I do not think that I have. In Northern Ireland, we had Cabinet minutes which were heavily redacted and the contents had appeared in the papers before I read them anyway. I do not count that as having seen any official secrets, so perhaps I am disqualified from contributing to this debate.
I recall that in the past, not that many years ago, the name of the director of MI5 or MI6 was an official secret. We were not even to know that such people existed. That has moved on now and it is much more possible to have some element of knowledge and scrutiny of the security services. Of course, the threats in the intervening years have become more international and more serious, and to deal with them has required more international co-operation. I say that in the context of how anybody would look at the Bill.
I regret that the noble Baroness, Lady Manningham-Buller, will speak after me because I would have liked to have known what she had to say before I contributed, although I had a little chat with her a few minutes ago so I have some idea. I remember vividly the contribution that she made when we debated 42-day detention. She knocked the Labour Government for six with a short maiden speech, which many of us who were present will remember vividly and almost word for word. I regret that I cannot listen to her before making my contribution.
I want to talk mainly about Part 2 of the Bill. This is not a specialist issue just for lawyers: it is central to our country and to the way that the rule of justice operates. It is constitutionally a significant change. It undermines the principles of open justice and natural justice. I welcome the concessions that the Government have made between the Green Paper and the Bill, but I contend that there are still weaknesses.
I served on the Joint Committee on Human Rights. I was rotated off about three weeks ago, so I am not as up-to-date as I would like to be, but I recall that when we published our report on the Green Paper it was embargoed. The Deputy Prime Minister made a passionate statement criticising the Green Paper. I assumed that he had somehow got hold of a copy of the embargoed report because the timing was too close to be coincidental, but be that as it may. I also welcome the report of the House of Lords Constitution Committee.
Clearly, there must be concern about the anxieties in the United States and other countries that we might reveal information given to us in confidence. On the other hand, we have had examples where the Americans themselves have not been that good at keeping secrets. Indeed, there was one instance in addition to the one quoted. In the Yemen case, the Americans leaked or revealed the fact that one of our people had given valuable information from Yemen. That endangered the safety of that individual. I say that only to demonstrate that the Americans themselves are not always as good at keeping to the principles that we are told are the basis for this legislation.
I welcome the fact that inquests will be excluded. I welcome the fact that the Bill will confine itself to national security material and that SIAC’s jurisdiction will include the possibility of JRs regarding citizenship and exclusion from the UK. However, there is something I do not understand. If someone has lived in this country for some years and then applies for citizenship, why is that aspect covered by the secrecy implicit in the Bill? Surely, if a person has been here for years, we know that he or she is here and we are onto them. Indeed, there is an argument that we should keep quiet and see what else we can learn from them. If we start challenging their entitlement to citizenship, albeit in a secret court, we are actually giving the game away. I do not understand the argument there. Perhaps the Minister can reveal it.
The key issue is the secret hearings and the CMP material inherent in Part 2 of the Bill. Of course, the problem is that the Government may use and rely on closed material even though other parties are not allowed to see it. To quote again from the noble and learned Lord, Lord Kerr, who has been quoted before:
“Evidence which has been insulated from challenge may positively mislead”.
That surely has to be the theme for those of us who are concerned about the Bill.
I understand that the courts traditionally are reluctant to challenge the Government on national security matters and if the Government say that it is a national security matter, the courts will normally accept that. The effect of the Bill will be largely to replace PII with CMP where the Government want that to happen. In truth, the Bill preserves the PII process in cases involving national security where in the Government's words it is more appropriate. But as the Bill stands, it is the right of the Secretary of State—his exclusive discretion —to decide which way to go. I think that that is more power than should be the case. I do not believe that the Government have fully demonstrated the case against PII.
I understand that the key benefit of the PII procedure is that there can be balance. The courts can balance one consideration against another. That is surely its particular strength. If we are throwing that out, that is a retrograde step. Do we have to have the alternative of the Secretary of State saying either that PII is okay or we have to have CMP? I wonder whether there might not be a way in which the strength of PII and the benefits of CMP as alleged could be put in such a way that the court itself could decide which of the two methods to use. I am not sure how well that would stand up, but I put it forward to the Minister as a possibility that might get the Government off the hook.
As for Norwich Pharmacal, I share the concerns that have been expressed by others. In particular, Clause 13(5) refers to disclosure that would be damaging,
“to the interests of national security, or … to the interests of the international relations of the United Kingdom”.
That seems to be very wide indeed. I understand national security, although it is vaguely defined. But if we are talking about damage to the international relations of the United Kingdom, all sorts of things damage our international relations, even a leak about something that a British embassy is doing. I wonder whether that is going too far and if we dropped that the Norwich Pharmacal jurisdiction approach would still apply more happily.
I turn briefly to Northern Ireland. While it is good that inquests have been excluded from the Bill as a whole, there is still a range of civil proceedings in Northern Ireland dealing with the legacy of the conflict that will be affected by the introduction of CMPs. I give three examples. There are possible challenges to the PSNI, possible concerns about decisions by the historical enquiries team and possible miscarriages of justice. Some of the issues in Northern Ireland are very serious. We have already had difficulties with the Finucane case with too much secrecy causing lack of confidence in the system. I wonder whether we are not getting into rather difficult terrain by applying this approach to some of the sensitive issues in Northern Ireland. I noted with interest the suggestion of the noble Lord, Lord Thomas of Gresford, that there should be a disclosure judge as well as a Diplock judge. I do not know enough about that, but that is another option worth considering.
I notice that the Government for the first time retain the right to use intercept evidence in CMP cases. Given all the arguments that we have had about intercept evidence, I still believe that we should find a way, where appropriate, of occasionally using intercept evidence in our courts as a way of bringing people to justice. Every time the Joint Committee on Human Rights had a meeting with Home Office officials we were told that it was all being considered, but nothing seemed to come out at the other end. It is interesting that the Government have in a small way conceded the case by saying that intercept evidence may be used in CMPs. I hope that that is a sign that the use of intercept evidence in a wider sense is still on the Government’s agenda.
Baroness Williams of Crosby
My Lords, I am happy to join the noble Lords, Lord Hodgson of Astley Abbotts and Lord Dubs, in being one of the outsiders contributing to this debate. It has such an important nature that it is important that those who are not lawyers as well as those who are take a substantial part in it.
In many ways, what has happened to the Bill is a great credit to some of the recent changes that have been made in Parliament. The fact that we have had a brilliant and succinct report from the Constitution Committee and a very full, factually based and sensible report from the Joint Committee on Human Rights says a great deal about the way in which committees are now beginning to complement and in many ways strengthen what has been something of a weakness in the House of Commons: its ability to scrutinise legislation going through Parliament. These two committees have served us extraordinarily well and I think it would be appropriate on this occasion for me to pay a passing tribute to the shade of the late Lord St John-Stevas for having made such a major and significant contribution to our constitutional development.
The Deputy Prime Minister deserves a word of praise. Having intervened fairly early in the process of considering the Bill, he was able almost immediately to challenge two elements of the Green Paper that were particularly disturbing: one of those aspects being the particular right of Ministers to decide whether a court should be held in closed session; and the second being, in my view at least, the attempt to include inquests within the scope of the CMP. I think he deserves recognition for having intervened and drawn attention to these two particularly extreme and in many ways odious provisions of the Green Paper.
Having said all that, I am also delighted with the strengthening of the position of the Intelligence and Security Select Committee—on this I think I share the view of the noble Lord, Lord Butler of Brockwell. The decisions that it should choose its own chairman and that it should be accountable to Parliament rather than just to the Prime Minister are significant steps in gaining much greater accountability over the whole area of intelligence. For reasons that I will come to a little later, that is vital.
On the Bill itself, I have to admit that the state of the judiciary, as well as the care taken by the Select Committees of Parliament, has been impressive. I share the view of my noble friend Lord Lester of Herne Hill that the judiciary has consistently behaved with extraordinary integrity and real commitment to the concept of human rights and the individual liberties of our citizens, and at the same time has been sensitive and aware, all the way through, of the national security requirement. We are extraordinarily lucky in the judiciary that we in this country enjoy and we need to do everything that we can to sustain it.
One aspect that is perhaps particularly important is the limitation of the introduction of the CMP into civilian proceedings. As has already been mentioned in the debate, it is quite striking that the special advocates could not have been clearer in their views that any further extension of the CMP into civilian proceedings would be unacceptable and would contribute very little to the quality of judicial statement and conclusion in our country. Given the pressures on them, it seems quite remarkable that they achieve near unanimity in a bold and strong statement about their position on the Bill. We have to pay careful attention to this because, as we know, virtually every currently practising lawyer who has had direct experience of the CMP in his or her own proceedings was deeply clear that it was a very unfair procedure and that steps to make it fairer were very difficult to attain. Also very clearly indicated was their view that a much stronger case needs to be made even in the field of national security and certainly beyond it in looking very hard at the CMP proposal.
In many ways the special advocates also regarded public interest immunity as a more satisfactory safeguard for the claims of those who came before the courts. Such cases became particularly difficult—this was mentioned in debate—where claimants invoked the Norwich Pharmacal precedent whereby information had to be disclosed, as my noble and learned friend Lord Wallace pointed out, originally with regard to intellectual property. However, as it was extended from intellectual property and ingeniously used as a way to get access to sensitive security matters, it obviously presented the Government with a very serious difficulty. Under present practice, it meant the Government withdrawing cases altogether rather than risking disclosure. This could lead to an unjust outcome. The former Lord Chancellor, the noble and learned Lord, Lord Mackay of Clashfern, is clearly particularly exercised about the possibility of injustice here. I wonder whether he would agree that judges must be consulted on the balance of interest in deciding whether a court should accept the CMP and whether he could be asked to explain openly their reasons for giving such a decision.
The Government’s response to the Green Paper was far too cavalier on the essential principles of natural and open justice. Even in the redrafted Bill, Clause 13 defines “sensitive information”, which I know has now been somewhat changed to “national security information”, far too loosely and ranges far too wide. What my noble friend Lord Lester had to say about this was absolutely right. It therefore provides for unacceptable and unaccountable executive power by including within the definition a certificate by the Secretary of State if he or she considers that disclosure might damage the interests of national security or the international relations of the United Kingdom. This latter condition—I share this worry with the noble Lord, Lord Dubs—is usually interpreted by the media as being damaging to our relations with the United States, but it might also of course include damaging our relations with other countries that lack any commitment to the rule of law or to refuse the use of torture as something that can be presented in evidence.
I therefore ask my noble and learned friend Lord Wallace of Tankerness whether the Government are absolutely sure that other countries, not including the United States, could not object, for example, to there being a decision to allow this material to be used if they found it offensive to their view of themselves regardless of whether they had a commitment to the human rights of other human beings and whether they had a proper commitment to laws that establish the freedom and independence of courts. There are a large number of countries—I could mention some but for reasons of diplomacy I will not—that are very close allies of the United Kingdom and that have virtually no commitment to the rule of law. What, therefore, is the position meant to be if they then use this part of the Bill to claim that they should not have been forced or compelled to make any revelations at all.
I turn briefly to the concept of security itself, which has become an autonomous noun—a self-justifying concept. Security may be understood as securing the health and safety of innocent citizens. The noble Marquess, Lord Lothian, made this his central definition of security, but I find it very difficult to do that. The concept of security should also be understood as securing the liberties and freedoms of a democratic society, not in principle contradicting them. I find it very hard to believe that security is strongly established if it is set in contradiction to these basic values. There is a worrying inclination to move in that direction: to treat security, as I said, as an autonomous noun—as something that has a right to itself other than that fundamental right of protecting individual liberty and safety and the basic values of a democratic society.
After 9/11—I should probably now declare a rather modest interest as a member of the governing committee of the Belfer Center for Science and International Affairs at Harvard—some measures were taken that gave security precedence over any other values and rights. Among some of those precedent measures were measures that went quite directly contrary to what most of us would regard as the fundamental principles of being a law-abiding society. I am a little disturbed by our debate having paid so little attention to what I have to say is one of the shaming dimensions of intelligence: the whole story that has emerged about extraordinary rendition and the misuse of intelligence to bring about results and ends that are simply not compatible with those basic values.
I strongly argue that one of the great concerns that we ought to share is the continuation of the existence of Guantanamo Bay, despite the general intentions of President Obama to get rid of it when he was first elected in 2008. We should also be disturbed by the appalling story of extraordinary rendition by the CIA, which, deeply regrettably, some British intelligence was involved in and which has not yet fully emerged into the light of day.
I shall say this very carefully: an American President under increasing pressure from Congress, particularly a Congress of somewhat extreme views about how civil liberties should be subordinated in every possible instance where there is a clash with so-called security, could use Clause 13 as a way to demand the wider use of the CMP in the British judicial and political system. I for one would find that deeply regrettable.
I conclude by saying that it is rather ironic that the Government have not proposed the use of security-cleared lawyers in such cases. In this the United States has shown strength by insisting that such security-cleared lawyers can be trusted in the recent habeas cases of two people who are being retained at Guantanamo Bay. The US has been willing to accept, as we have not, that security clearance is a sufficient and substantial safeguard. We seem disinclined even to look at the possibility, but I would add it to the list of options referred to by the noble Lord, Lord Dubs, as one of the various alternatives. This is one that we might want to look at.
Another might well be the one proposed by my noble friend Lord Thomas of Gresford, which draws on the Diplock court principle and priority, with the idea of a separate judge having particular responsibility for the levels of disclosure. The judge would have to satisfy him or herself that there had been no failure to disclose where necessary, but equally whether there should be any insistence on disclosure that runs contrary to natural justice and natural law. Finally, one other prospect might be looked at carefully. It was mentioned earlier by the noble Lord, Lord Pannick—the more extensive use of various forms of redaction as a way of dealing with the problem.
There are several options before the Government, all of which should be carefully considered because one or more of them are preferable to the direction that we are moving in under Clauses 6 and 13. I hope that the Government will give serious and detailed consideration to these proposals because, with amendment, the Bill will make a useful contribution. Without amendment, it will stand as something that should not be allowed to pass into law.
Baroness Berridge
My Lords, I am a member of the Joint Committee on Human Rights. When we were considering the Green Paper and now the Bill, I seemed always to have had in mind the statue of Lady Justice at the top of the Old Bailey, but when seeking to balance the various injustices in these situations I have come to conclude that her scales need at least seven pans.
First, the Government assert that they are not able to defend themselves and are forced into the settlement of claims. I agree with the Lord Chancellor that that is “extremely unsatisfactory”. Secondly, the Bill would have the claimant and the lawyers in the corridor of the court and evidence seen fully by only one party. Thirdly, in civil proceedings there can be an appeal on the facts, but if, as the Government assert, these cases are so saturated in intelligence information that most of the judgments are secret, people will be less able to appeal and correct decisions.
Fourthly, there is the exclusionary nature of PII where the evidence is not considered by either side. Fifthly, there are apparently strike-outs of meritorious claims, but currently the only example is the case of Carnduff and Rock. Sixthly, how do we ensure the continued development of the balancing of public interest immunity in national security cases? Seventhly, is there information that has previously been disclosed in court proceedings, and thus available to the general public and the press, that would now remain secret? Some of the injustices do not relate to individual cases as the Bill will change the judicial system. It is a fine balancing exercise that, I would add, gives you a headache, and inevitably people will come to different conclusions about the least bad solution.
However, Lady Justice is usually blindfold, which is apt in this situation as your Lordships cannot observe a CMP in full. That is, the hearing has one party excluded. I trooped down to the Royal Courts of Justice in the February Recess to watch a control order case. I spent nine years as a civil advocate and I can spot a court case when I see one, but this did not feel like a court case: namely, a case in which parties try evidence before a judge. It was more like manoeuvrings, with the open advocate, the special advocate and the judge trying to assist to ensure that enough of the allegations were known before the whole thing—the trial of the allegations and most of the evidence—was held in secret behind what I discovered are literally the locked doors of the court. The controlled person was not even there. When I queried that, I was told that it is not unusual because, “there is not really much point”. What I saw worried me and convinced me that the best people to determine this issue were those who have actually done these hearings, which will not necessarily be the most experienced practitioners, judges or academics.
That leaves three groups: those I will call the CMP judges, whose views are not known to Parliament; David Anderson, the independent reviewer; and of course the special advocates. David Anderson QC accepts that CMPs have the capacity to operate unfairly, especially if there is no gisting of the evidence. The last group are the most experienced, and they are not at all convinced. In fact, “inherently unfair” has been their consistent criticism of CMPs. Again, I agree with the Lord Chancellor when he said that the,
“evidence of the special advocates most unsettled me”.
It has been suggested that the special advocates underestimate the effectiveness of CMPs, but that is unusual for any group of lawyers, especially one that includes 22 QCs, not because they are arrogant but because they are really excellent at what they do; QC is a top brand. I would like to see the Government gain the support of these independent advocates before being prepared to support such a fundamental change to our judicial process. I might add that these lawyers, the special advocates, will secure more work if we have more CMPs, and that is a rarity in my experience.
On the injustice of evidence excluded under PII, I join the noble and learned Lord, Lord Morris, but I would be grateful if my noble and learned friend the Minister could set out the statistics of how many cases in the past have led to the successful exclusion of all material, and how many have led to the partial admission of material in open court, such as that achieved so ably in the 7/7 inquest. Further, was this technique used in the Guantanamo Bay litigation which the Government have relied on so heavily? Were exclusionary PII applications made in those proceedings? Also, I am perplexed that the Government apparently settled the al-Rawi case before knowing whether they could have a closed material procedure. When questioned by the Joint Committee, the Lord Chancellor maintained that the Government could have defended the claim if they had had a closed material procedure, but if the Supreme Court had decided in their favour, no proceedings would be left to try. I am perplexed about this.
Moving on, it is hard to see how to ensure the future development of PII in national security cases when under this Bill the judge would be required to accede to an application if there is any national security information relevant to the case, even if he considers that the case could be tried using the existing PII rules. I suspect that we will find amendments tabled during Committee on the Bill. Will less information be available in the public domain than there should be? I think there is a danger that closed material procedures will restrict it.
As I understand the Bill, the difference between closed material procedures and public interest immunity is illustrated using an extension of the example cited in the Constitution Committee’s report of an aircraft accident where the family ended up suing the Government. Let us imagine that we have gone into a closed material procedure and it becomes clear for the first time, behind closed doors, that cockpit video footage exists. That footage is played behind the closed doors. It is akin to the footage that many noble Lords will have seen from a recent inquest into a friendly fire incident that was leaked to the Sun newspaper. Is there any way in which the judge, in a closed material procedure, can balance the interests and pierce the wall of the closed material procedure to put that video into the public domain, given the level of intense interest both in the press and among the public since they know of its existence? As I understand the Bill, that would not be possible. Of course, the claimant may win the claim and the judge may use the powers under Clause 7 to enforce concessions on the claimant, but the public and the claimant will never see that video.
Civil claims are not always about winning or money but about knowing the evidence that establishes the allegation. The same is true for the press, as Ian Cobain, the Guardian journalist who gave evidence to the committee, said. His allegations were viewed as conspiracy theories by the Government, but documents disclosed in court proceedings have sadly proved otherwise. As I understand the Bill, CMP applications are ex parte, so there will never be cases in which the press should be represented to argue the open justice issue. Also, apparently meritorious claims are struck out as the intelligence is so central that it cannot be tried. As I understand the Bill, a claimant is not helped as only the Secretary of State can apply for closed material procedures.
What of confidence in Lady Justice herself? I rely here on the words of the noble Marquess, Lord Lothian, that it is perception that matters. We do not legislate in a vacuum and there is concern about the level of trust that the public have in institutions—except, I think, in the monarchy and the judiciary. On “Thought for the Day” this very morning, the right reverend Prelate the Bishop of Norwich helpfully summed this up for me when he said that confidence in our institutions is dependent on our trust in the individuals in them. Do the public have such confidence in the groups that will give evidence behind closed doors in a closed material procedure?
Before I am accused of being a fantasist, I pray in aid evidence from the Deputy Assistant Commissioner of the Metropolitan Police, Sue Akers. Her witness statement to the Leveson inquiry is as follows:
“Alleged payments by journalists to public officials have been identified in the following categories: Police; Military; Health; Government; Prison and others. The evidence suggests that such payments were being made to public officials across all areas of public life. The current assessment of the evidence is that it reveals a network of corrupted officials”.
Your Lordships will remember better than I the West Midlands serious crime squad. I am not a doomsday merchant, but one has to think about what happens if this system goes wrong. Who will do the public inquiry? Not, I think, a judge—not because they lack the integrity but because what is being asked of them is beyond the capacity of any human being if both sides are not there to bring forward the evidence and to rebut one another’s claims. Human beings are fallible. Home Office officials have been known to use the power to redact documents to cover up Home Office mistakes. MI6 was found to be incompetent at checking where its seconded staff were for over a week. How will all this not be less challengeable if behind closed doors?
Finally, I ask the Government to consider very carefully the implications of the following scenario. What will be the position under this Bill of the trial in which the right honourable Jack Straw MP is currently sought to be added to proceedings in his personal capacity over allegations from a Libyan military official that he authorised his rendition to Libya? The Government are an existing party to these proceedings and a CMP would be eminently possible. Is Mr Straw going to sit in the corridor outside a locked court? Imagine that Mr Straw loses the claim and has to pay £500,000 damages, and all that is done behind closed doors. He has also previously had security clearance, so he will potentially have knowledge to rebut these allegations from his direct experience, which he will not be able to use.
Baroness Manningham-Buller
Ministers do not have security clearance—if only.
Baroness Berridge
I welcome that correction from the noble Baroness, but I think that the majority of the point still stands. Do your Lordships trust the Twittersphere to carry this information properly without muddying the waters with potentially inaccurate party political accusations? “The Conservative and Liberal Democrat Government changed the law and Jack Straw, the former Labour Foreign Secretary, had to pay damages”—is that fewer than 140 characters? Will this enhance confidence in our judicial process?
Civil justice, with its disclosure provisions, is often the only avenue open to individuals to get the details of what has happened. This should not be underestimated. It is an old adage that justice must not only be done but be seen to be done. Could this Bill actually make matters worse for the security services and the Government? Can no one knowing the truth actually be better than, “We know but we cannot tell you why.”?
Lord Judd
My Lords, the House owes a very deep debt of gratitude to the noble Baroness for an extremely courageous and hard-hitting speech. With her background, we would all do well to listen very carefully to what she has to say. I also put on record my own admiration for the continued work of the Joint Committee on Human Rights. As a former member, I know just how much time and hard work is involved in that committee, and the whole House should be grateful to its members for all they do. I wish there was more evidence that the Government gave higher priority to dealing with the arguments put forward by the Joint Committee on Human Rights when participating in debates of this kind—this is not a party point because, frankly, it was also true of the previous Government.
The relationship between democracy, security, human rights and law is always very complex and intricate. Secrets are inevitable if we are taking security operations seriously. The crucial issue in a democratic society is who decides what should be the secrets and where the ring-fences should be placed. There will be checks and balances—they are inevitably needed—but this is a crucial issue that needs very careful scrutiny. I get worried by talk of trade-offs. I do not think that “trade-offs” is the right term. Human rights and certain fundamental principles of law are non-negotiable. There may be exceptions, but that is not a trade-off. The moment you start talking about trade-offs, you are suggesting that certain human rights and principles of law are not absolute. They should be absolute.
I am glad to see the remit of the Intelligence and Security Committee being extended. I am also cautiously optimistic about greater accountability to Parliament. Of course, ideally that committee should be accountable to Parliament. If, as we examine them, the terms of the legislation suggest that parliamentary accountability is being strengthened, this will be important.
Obviously, I am not a lawyer. My background is totally different. Therefore, I hope that the House will forgive me if I flat-footedly walk around as a lay man in the debate, but sometimes the lay men should be heard. For me, the starting point is: what kind of United Kingdom do we want to live in? I think all of us here would agree that the quality of justice was very central to the kind of United Kingdom in which we want to live. We would like to have a model with which we are happy and which can be a model for the world. When we prattle and preach about the responsibility of other nations to implement the rule of law, it starts with our own demonstrable commitment to upholding those principles.
What are those principles? Habeas corpus is obviously central—no person ever being detained without knowing for what reasons they are being detained and what is being alleged against them; that is absolutely crucial. Justice being seen to be done—not in corners or in secret clubs or secret arrangements, but manifestly, publicly seen to be done—is essential. Justice being open is another of those principles—our adversarial system is very important. When I was on the Joint Committee on Human Rights, we went to look and were perhaps a little tempted by and flirted a bit with some of the investigatory traditions of other systems of justice in Europe. I think that most of us came back absolutely convinced about our own. It is through honest, adversarial procedures in court that the truth can be established. It is about a constant search for truth. I would add that compassion—the compassion that comes only from those who are strong and self-confident—is of course an important element in the administration of the law.
It has been a hard struggle to move forward on those principles. We only have to think, in this anniversary year of Dickens, of what was happening in Britain in the 19th century. We have come a long way since the 19th century, and we are the trustees of the outcome of that struggle. It could all too easily be thrown away.
We must also be aware of the issue of counterproductivity—this is something we must never forget. We live in a complex society. I use the word complex again, but complexity is central to life in my own estimation. It is so easy inadvertently to strengthen the wrong elements in society by alienating important sections of the community which become subject to the manipulation of extremists and others. We must fall over backwards not to make that mistake. I believe—and I am somebody who was nurtured in the Second World War, when we stood very firm on these principles —that the more acute the nature and size of the challenge, the more important it is to stand firm by the principles of the society we are defending. That is the hallmark of confidence and real strength.
I am afraid—and I must say it—that too often I see evidence of retreat and erosion in the face of terrorism and extremism. Each retreat represents a victory for the extremist, and we must never forget it. It also creates corrosive precedents. What should always be exceptional can too easily become convenient. We should strive always to deal with offences, however grave, within the normal judicial system and the normal procedures of our penal system. It would be disastrous if it became established over time that in this country we had first-class law available to some people and second-class law available to others.
I am afraid that sometimes we are rather good in Britain at refusing to face up to the harsh realities of what we may be generating. If we have special courts and special advocates, and if there are powers to withhold information—in effect on government say-so—when does the detainee become a political prisoner? What is the absolute dividing line between a detainee and a political prisoner? We very often use language about political prisoners in reference to other societies, but we must ask some very honest questions here about ourselves. We ought to listen to the special advocates on this. I remember that when I was on the Joint Committee on Human Rights the special advocates gave evidence to us. It was very powerful to see how unhappy they were about their lot and how they felt that they were being expected to perform in a way that was absolutely alien to their training as lawyers in this country—the principle of defending somebody with whom you are not allowed to discuss the real substance of what it is all about.
I have listened with fascination in this debate to those who are pre-eminently well qualified to comment on what is before us. It seems to me essential that all the time we are considering the Bill and putting it under scrutiny, we should have four questions in mind. First, does it regenerate and uphold a resolve and unshakeable commitment to open justice? Secondly, does it strengthen the means to deal convincingly and effectively with allegations of serious state wrongdoing? Here of course I have in mind torture and rendition in particular. Torture is an abomination. It is cruel to the people tortured, it is damaging to the people doing the torturing, and it is a total contradiction of everything we say that our civilised values are about. It is easy to say that, but are we taking the action that is demanded if we are serious in that judgment? Thirdly, does the Bill convincingly counter the dangers of manipulation of court proceedings by government, especially when government action goes against the considered wisdom of the judge? Fourthly, does the Bill effectively reverse what I believe to be a disturbing and accelerating trend towards curbing the ability of the public to hold the Government and their agencies to account through the courts? Here I cannot help making a comparison with another Bill that has just gone through this House: I am still dismayed by the way in which we have limited the availability of legal aid in our society. What are we doing to the quality of justice in the United Kingdom?
Let me conclude simply by saying that it is arguable that the 20th century saw a high point in the development of quality UK justice in the context of democracy. It will be a tragedy if the 21st century becomes one in which, by a weak and sad reversal of those considerable achievements, we produce an inferior system of justice. We must not let the extremists and the terrorists win.
Lord Macdonald of River Glaven
My Lords, I declare an interest as chair of Reprieve, an NGO campaigning against the death penalty and secret prisons around the world. It was involved in the Binyam Mohamed case. I start by acknowledging two things. First, the Bill is a significant improvement on the Green Paper that preceded it, and a very welcome improvement. Secondly, there may be a very limited category and number of civil cases in which closed proceedings may be necessary to ensure that justice can be done in circumstances where, if there were no closed proceedings, material critical to the fair resolution of an issue would be excluded from the court’s consideration. This, of course, could include fair resolution in favour of the claimant as well as in favour of the defendant. I would expect this to be a very small—exceedingly small—number of cases.
My question for the House is whether the Bill as currently drafted achieves an appropriate balance between delivering justice in that very small category of cases and the wider public interest in enjoying a justice system that is open and public. Will the Bill deliver that very small—exceedingly small—number of cases, or might it deliver rather more; indeed, too many? My view is that, despite the obvious improvements, there is still a way to go. I want to focus on two areas: public interest immunity and the Norwich Pharmacal jurisdiction.
Public interest immunity has served us very well over many years and judges are very experienced in the exercise of this jurisdiction. It enables a party to the proceedings to invite a judge to conclude that any given material, while relevant to an issue in the case, should be withheld from that case on public interest grounds. Naturally, those public interest grounds can include national security grounds. In conducting this exercise, the judge is required to balance the public interest in protecting sensitive material from disclosure against the private litigant’s legitimate interest in seeing material that may assist his case or undermine the case of his opponent.
I am not aware that it has ever credibly been suggested that judges in our courts are inclined to get this balance wrong. My own experience over many years, including during the five years that I served as Director of Public Prosecutions, is that our judges do not get this balance wrong, despite what American intelligence agencies may quite erroneously believe. Some aspects of the Bill appear to have been included because of what almost everybody accepts is a misapprehension on the part of a foreign intelligence agency.
At present, the Bill requires the Secretary of State merely to consider public interest immunity and presumably to reject it as a suitable mechanism before going on to apply for a close material procedure. This is not enough. I urge the Government to take the opportunity represented by this legislation to strengthen, rather than undermine, our PII jurisdiction. As the Joint Committee on Human Rights has said, it should be placed on a statutory footing to strengthen confidence and to increase clarity. Such a reform could include, among other things, the test to be applied when national security material is the subject of a PII application.
I also believe that it would strengthen the integrity of any CMP were it to be invoked only following a full PII process. In other words, the judge would be invited to rule, in accordance with traditional PII principles, that the relevant material sought to be withheld could properly be withheld on public interest grounds. Having made that ruling, the court would then go on to consider, again on conventional PII principles, the extent to which a redacted form of the material, or a summary, could safely be disclosed consistent with the public interest.
Finally, if at the conclusion of this conventional PII process a party wished to go on to apply that the court should go into closed session to hear any remaining material permitted to be withheld under PII, only then would the court be empowered to accede to that application to the extent that it felt a fair trial would be impossible in the absence of factoring that material into its consideration of the issues in the case.
The scheme would be: first, consider the relevance of the material to issues in the case—normal PII; secondly, consider the extent to which its disclosure might damage national security—normal PII; thirdly, consider the extent to which redaction or summary can cure the problem—normal PII; fourthly, in appropriate cases after that process, rule that the material may be withheld on grounds of public interest; and only then, fifthly, upon an application by one of the parties, rule that the material withheld can be considered by a court in closed session because, in the view of the court, a failure to do so would render the proceedings as a whole unfair. It would be a strong PII system as we understand it today, with the possibility in a small number of cases, once that process had been exhausted, for the court to go into closed session. Such a scheme would encourage a focus throughout the process on the important principles to be decided. It would very strongly discourage abuse or inappropriate, overhasty recourse to the CMP procedure, which is, I fear, a real danger under the current proposals.
I turn to the Norwich Pharmacal jurisdiction and Clauses 13 and 14. These are far too widely drawn for the following reasons. Clause l3 relates to “sensitive material”. The listing of this category of material as deserving of special protection is an unfortunate throwback to the excesses of the Green Paper. Worse, whole swathes of material are deemed to warrant, without any further consideration, the tag of “sensitive”, so that they are automatically and absolutely excluded from disclosure. This includes any material emanating from the intelligence services in the widest sense.
Of course, some material emanating from the intelligence services, though certainly not all of it, may be “sensitive”, but that is the wrong test. It has been abandoned in the rest of the Bill and it should be absent from Clause 13. The test should be the extent to which a disclosure would be damaging to national security, as it is elsewhere. Even then, there should be no automatic carve-out. The power to withhold this material should be subject to a judge’s ruling on the merits, as it is in the case of an application for a CMP. It should be the same test.
Even worse, Clause 13(3)(e) allows the Secretary of State to specify that any other material may be excluded if its disclosure in his judgment could damage national security or damage the interests of our international relations. The exercise of this exceedingly broad executive power is reviewable by a judge, but not on its merits and only on JR principles; that is, the judge can reject the Secretary of State’s certification only if he finds its exercise to have been “irrational”. This test does not provide adequate supervision over such a sensitive exercise of ministerial power, undermining, as it must be, of important principles of open justice.
The Norwich Pharmacal jurisdiction can sound a dry and technical subject, but, as my noble friend Lord Lester of Herne Hill has pointed out, it exists in cases where a great deal may be at stake, including the very life of the complainant who may, for example, be residing in a foreign prison and potentially facing sentence of death, as was the case with a number of Guantanamo Bay inmates. As things stand, the courts will make a Norwich Pharmacal order only where the party against whom it is sought has become mixed up in wrongdoing and where the interests of justice require it. Are we now to say that, however mixed up in wrongdoing the party against whom disclosure is sought may have been, and however strongly the interests of justice may demand disclosure, the behaviour of the wrongdoer, if it is an intelligence agency, shall be afforded total and automatic protection in all third-party applications of this sort? I do not believe that we should say that and this proposal goes too far. It causes deep offence to conventional legal principles because it ousts the effective supervisory role of the court in a way that is almost calculated to lead to injustice, even on a heroic scale.
I accept that, in cases in which national security issues are genuinely engaged, some adjustment to the Norwich Pharmacal jurisdiction may be appropriate, but the solution is emphatically not entirely to exclude certain bodies from its range. The solution may be, as I think the JCHR indicated, a presumption against disclosure in national security cases in the Norwich Pharmacal jurisdiction, overturnable by the judge if, in his or her view, serious injustice is likely to occur in the event of non-disclosure.
Even in the field of national security, I do not believe that it is in the broader public interest to move to a scheme where the interests of justice are entirely exiled from the equation so that they cease to exist as a check against the abuse of state power.
Baroness O'Loan
My Lords, having had some experience of matters relating to national security involving many of the considerations inherent in this Bill, I absolutely recognise the importance of protecting intelligence sources, intelligence methodologies and those agents who have the complex and often difficult task of running the sources who are often engaged in the very issues on which they provide intelligence.
Such activity is of course regulated but much of it occurs in real time and in situations in which the Security Service necessarily exercises a degree of discretion —for example, about the involvement of sources in crime or terrorism. The noble Baroness, Lady Berridge, referred to where things go wrong. In Northern Ireland, there is a body of evidence about such circumstances. Examples are sources being funded to make trips to other places to buy arms and munitions for the purposes of terrorism, and sources who admit to murder not being prosecuted for those murders because the important thing is to retain their services as sources, the consequence being a lengthy career in serious crime, which could have been prevented. A balancing of the public interest, or even the administration of justice, with their ongoing activities might have led to different state action from that which occurred.
I mention that because it is important that, as far as possible, there should be no provision that enables the Government to withhold intelligence or other sensitive information relating to national security in a manner that prevents a litigant asserting and proving his case if our current situation with regard to the operation of government and the rule of law is to be maintained and, hence, our national security is to continue to be protected. Introducing further limitations to judicial oversight and involvement, as proposed in the Bill, cannot be welcomed where alternative measures can be taken that will better serve the interests of both openness and justice. In that context, it might be useful to consider the references of the noble Lord, Lord Grenfell, to the disclosure judges and their activities in Northern Ireland.
There are mechanisms for the accountability of the Security Service and anti-terrorist policing, to which we have reference in the Bill, but I think that, with respect, the current arrangements cannot inspire great confidence because of the very limited resources and opportunities for access afforded to those who are charged with the responsibility. Great atrocities, both here and in the United States, have led to calls for examination of what happened—for example, with the Omagh bomb 14 years ago or with 9/11. The reality is that the intelligence services do not operate alone; they operate with the police and other statutory agencies. Sometimes there has to be a public inquiry, and we have seen several in Northern Ireland. In such circumstances, there will be consequential disclosure and such inquiries may well be in the interests of national security, so we cannot start with the assumption that everything has to be protected.
I welcome the exclusion of inquests from the Bill. However, I should like the Government to explain why inquests should be excluded but civil actions for damages against the Government taken by the loved ones of those who have died should be subject to the possibility of a CMP. The response cannot simply be that Article 2 does not apply to civil actions. The perception is that the effect of that provision is that the Government might be influenced in their decision to withhold information because to disclose information would be very costly in terms of the damages that they might have to pay. Of course, the claimant may not know the extent of wrongdoing which may have led to death or serious injury and may therefore be inclined to settle for a sum which does not reflect the extent of wrongdoing. I heard the Minister say that without CMPs the Government would have to settle cases which they could otherwise defend because they must protect national security. It is possible that the perception outside your Lordships’ House will be that the Government are creating, perhaps unwittingly, a damage limitation mechanism exercised by virtue of this provision.
It is important in dealings with other Governments that our Government should not become complicit by omission or commission in any wrongdoing by those Governments. The removal of people to places where torture and inhuman treatment is likely on the basis of security intelligence is risky, to say the least. I have referred previously in this House to the case of Maher Arar, who was transferred by the Americans to Syria on the basis of intelligence obtained by torture. Mr Arar spent a year in Syria tortured by the Syrian authorities before he was released to return to his homeland of Canada—the Syrian Government and the Canadian Government both acknowledging that he had had no involvement at all in al-Qaeda. There are lessons for us in such cases.
We must have proper arrangements for the transmission of intelligence between countries in the interests of each country’s national security, but we must also acknowledge that countries have a wide moral responsibility to share intelligence to protect life. It is important that the United Kingdom does not bow to threats of non-sharing but, rather, asserts clearly the integrity of the judiciary in the United Kingdom and the fact that there has been no breach of security and that our legal processes are competent to deal with such matters without the introduction of blanket bans such as might emerge from the application of Article 13.
Central to the rule of law in the United Kingdom are presumptions of openness and fairness. It is, in part, confidence in the rule of law which allows us governance. The Select Committee on the Constitution said in its third report:
“This is a constitutionally significant reform, challenging two principles of the rule of law: open justice and natural justice”.
Those basic principles should not be diminished—and that is what the Bill will do—unless it is absolutely necessary. The Supreme Court in Al Rawi concluded that such measures would require “compelling evidence”. The necessity and proportionality of the measures in the Bill must be considered if your Lordships are to decide whether to approve the Bill or its individual clauses.
If we look at the response of those with significant experience in the area, we see that the Joint Committee on Human Rights, of which I am now a member, states that, even with special advocates, CMP,
“is not capable of ensuring the substantial measure of procedural justice that is required”.
It does not accept that replacing PII with CMP is justified. Special advocates have said that CMPs are inherently unfair: they do not work effectively and they do not deliver procedural fairness. The Court of Appeal, commenting on the special advocates procedure, said that even it is “inherently imperfect” and,
“cannot be guaranteed to ensure procedural justice”.
Justice has observed:
“There is nothing in the Bill to address unfairness”.
If we examine the proposed CMP, we see that much of the judge’s discretion and authority, which currently exists under the PII procedure, is negated by the CMP. The power all lies in the hands of the Secretary of State, who can apply for a declaration and then make the applications. The court must grant the application. The court may not even consider whether a PII procedure would be a better alternative. Once that is done, there will be consideration of individual pieces of evidential intelligence, but the reality is that the special advocate procedure does not permit full challenge of the material presented. Once the special advocate has seen the material, he can have no further discussion with the litigant; he has no responsibility to the litigant. That would be fine were it not for the complexity inherent in the assessment and examination of intelligence. The noble and learned Lord, Lord Kerr, stated most compellingly in Al Rawi—this has been referred to repeatedly—
“To be truly valuable, evidence must be capable of withstanding challenge … evidence which has been insulated from challenge may positively mislead”,
a court. Can the Minister confirm how the Government propose to ensure the necessary and full examination of national security material in the absence of such great judicial involvement in scrutiny?
Nothing in the CMP procedure would equate to any attempt to carry out the balancing of interests in the administration of justice exercise, which was developed in the Wiley judgment. The Constitution Committee stated that it is,
“difficult to see the justification for removing the Wiley balancing exercise”.
Will the Minister consider the introduction of some provision to mitigate the inherent unfairness of the Bill, whether by way of disclosure of material to legal representatives or in redacted form, as suggested?
I support the remarks of the noble Lords, Lord Pannick and Lord Lester, about the effect of the Bill on the Norwich Pharmical procedure. There continues to be no definition of national security—something which alternatively mystifies and occasionally benefits those who are required to make decisions in the interests of national security. It is also important to bear in mind that nothing is absolute. Even the identity of sources may be revealed, as was clearly demonstrated in the comments of Lord Chief Justice Carswell in the Northern Ireland case of Scappaticci. He stated, in the context of the “neither confirm nor deny” policy, that the Minister,
“can depart from the NCND policy … if there is good reason to do so to meet the individual circumstances of the Applicant’s case.
He continued—this is profoundly important for us in our law-making function—
“A decision maker exercising public functions who is entrusted with a discretion may not, by the adoption of a fixed rule of policy, disable himself from exercising his discretion in individual cases”.
We must accept the reality that there are cases in which the general rules about non-disclosure of intelligence material will have to be disregarded. It happens now, for example, if somebody is murdered and a source can give vital evidence about the murder but revealing the source would compromise him as a source. This will happen and he will then be repatriated to a new existence—something which he may not find particularly palatable, but it deals with the problem and with the requirements of justice. It is also the case that intelligence-gathering methodology has evolved. What might have been required to be protected even in 2006 may no longer require protection in 2012. It may be that the Minister will assure me that such consideration will always be part of the making of decisions about whether to apply for a CMP or whether simply not to make an application.
I seek assurances from the Minister on the provision in Clause 13 that,
“disclosure is contrary to the public interest if it would cause damage … to the interests of … international relations”.
There is no definition of what this damage might consist of, or of what objective criteria should be used to determine whether disclosure would cause such damage. There is a very clear proportionality and human rights issue here. Issues of the protection of national security are not new. We have long been engaged in battles to preserve and protect our national security, and I use that term in its widest sense. Procedures for dealing with the problem have evolved in a very measured way and the PII system is probably a very good example in this context.
Finally, why did the Government choose not to put PII procedures on a statutory basis, as many have recommended, in an enhanced form but, rather, to move towards the extension of the CMP, which has been described in such negative terms by so many of great distinction who have served this country so well? At this point, I endorse the suggestions made by the noble Lord, Lord Macdonald, regarding the introduction of a statutory PII process with the possibility of, in very exceptional circumstances, a closed material process. This would surely meet the objectives.
Lord Black of Brentwood
My Lords, I do not intend to detain your Lordships long as I have just one central point to make, but as it relates in part to the media I must first declare my interest as director of the Telegraph Media Group and draw attention to my other media interests in the register. I slightly wonder whether I should follow the example of the noble Lord, Lord Judd, and declare that I, too, am a flat-footed layman, somewhat intimidated by the assembly of the great legal minds that have graced this debate.
As we have heard in many eloquent speeches, the Bill goes to the heart of some fundamental constitutional principles and, indeed, human rights: the duty of government to safeguard the state and its citizens and, consequently, their right to life; the right of defendants to a fair trial, based on information on which they have had a chance to comment; and the demands in a free society for open justice, fully and fairly reported on, and indeed scrutinised, by an independent and robust media.
In the debate on the gracious Speech, I raised some concerns that, based on the Green Paper which foreshadowed the Bill, this legislation would end up undermining some of those vital principles and expressed a great anxiety, which was echoed in the report of the Joint Committee on Human Rights, at,
“its failure to consider the impact of such a radical departure from long established principles of open justice on the media’s ability to report matters of public interest”.—[Official Report, 15/5/12; col. 361.]
It is to their great credit that the Government listened to the widespread concerns expressed by the media and many others about the Green Paper’s proposals and likely impact in this area and have acted so decisively to deal with them in the Bill before us. That is warmly to be welcomed and it shows quite how important consultation is in such legislation. I think that the noble Lord, Lord Butler of Brockwell, made that point earlier.
I am particularly grateful to my noble friend the Minister of State for his courtesy in writing to me after the debate on the gracious Speech to reaffirm the Government’s strong commitment to open and transparent justice and to outline, as we have heard a number of times today, how their proposals relating to CMP with significantly strengthened judicial control would provide much needed safeguards. I understand that his most helpful letter, dated 11 June, about the media aspects of this legislation is in the Library of the House. Those safeguards will go a long way to protecting the integrity of media reporting, with claims and allegations—and indeed the outcomes of cases—continuing to be made and reported on in open court, with material remaining closed only where it is compatible with Article 6 rights under the European convention. It is also extremely welcome news that the Government have decided that inquests should not be held in secret. A number of noble Lords have referred to that.
I still have some areas of concern, such as the power under Clause 11 allowing the Secretary of State to make an order that would extend CMPs to any court or tribunal, with, as I understand it, important procedural provisions contained in rules of court not subject to the same detailed scrutiny as primary legislation debated in this House. It is crucial that such a move, entailing a substantial departure from our tradition of open justice, will be permissible only in the rarest of cases. I am sure that is what the Government intend and it would be helpful to have confirmation of that.
That said, this is, in the scheme of things, an issue more of subsidiary concern on which I hope we will be able to get reassurances. I ask my noble friend the Minister to continue the Government’s constructive dialogue, particularly with the media, that has to date been so effective and to discuss any further suggestions that may come forward for additional improvements intended to safeguard public oversight in this area.
This important Bill is a complex balancing act, as we have heard in so many contributions, between open and fair justice and the security of the citizen. Achieving such a balance between security and liberty, like trying to mesh together Hobbes and JS Mill—not a task I would wish to undertake—is fiendishly complicated. We have heard many concerns today and I have certainly listened to thought-provoking comments. I was struck by the speech of my noble friend Lady Berridge. However, from my vantage point, the Government are to be congratulated on listening to legitimate concerns and striking the balance with care. As a leading article in the Daily Telegraph on 30 May put it:
“We are facing a continuing threat from terrorists whose methods are ever more sophisticated, and the manner in which we counter those threats must be protected. This measure reinforces the rule of law without giving ground to those who would do us harm”.
Those are sentiments with which I concur. At the start of this debate, the noble and learned Lord said that we should test this legislation by whether it is a sensible and proportionate response to the threats that our society faces. In my view, it passes that test.
Lord Campbell-Savours
My Lords, I will confine my remarks to Part 1 of the Bill and the Intelligence and Security Committee’s operations. I listened to the very reassuring remarks made by the noble Lord, Lord Butler of Brockwell, who poured praise on the committee on the basis of his experience not only as a member but as one of those who engineered the construction of the committee. He was also able to watch that committee’s operation in the early days, when people such as me from the awkward squad in the House of Commons were put on it in an attempt to reassure the public.
I was a member of the committee between 1997 and 2001, under the excellent chairmanship of the noble Lord, Lord King of Bridgwater. In 1998, I set out in a paper to the then Prime Minister, Mr Blair, my provisional views on reform of the committee. Sadly, at that stage my views were rejected; they were a minority view that I had been pushing inside the committee. I wanted a committee of Parliament—not of parliamentarians—under a modified Select Committee structure, especially adapted to deal with the handling of national security issues. I should report that in the late 1990s there had been much discussion in the committee in private on whether we should go down the Select Committee route. I recall one particular day when we were discussing the amendment to the annual report from our committee, where we were hassling over the wording so as not to lead the public to believe that we were going to go down that route but to inform them that there was at least an argument going on within the committee on that matter—and that is 14 years ago.
The debate has now moved on. I hope to deal in Committee with some of the recommendations that I made at the time. However, the heart of my case today is that the model the Government are adopting is wrong. Some of the changes I welcome; but I regard the changes that are being made as essentially cosmetic. They will not meet the concerns of Members of the other House, or the expectation of the public, where they have an interest in these matters. Furthermore, the reforms might perhaps be counterproductive. Let us take the process of appointment. Under Clause 1(3) and (4), the Bill proposes that a person is not eligible for membership unless nominated by the Prime Minister. A member is then appointed by Parliament, effectively under a resolution of the House. At the moment a person is appointed by the Prime Minister on a recommendation of the Whips. I know that over the years members of the committee have tried to convince the public that they are appointed by the Prime Minister; the reality is that all members of that committee were appointed on the basis of Whips’ recommendations, certainly in the House of Commons. The only difference under the Bill is that the House will have to approve, on a resolution—a rubber stamp—the Prime Minister’s recommendations, which means a payroll vote, supported by the opposition Front Bench, backed up with an informal Whip, with bi-party guidance in support. It might even on occasions be a fully whipped vote.
As one of the Commons awkward squad, I was involved in challenging a Select Committee nomination, which very rarely happens in the House of Commons, certainly on only a few occasions over my 21 years there. One never has the support of the Whips, as a challenge is seen as an assault on the workings of the usual channels. What I am arguing, therefore, is that that is no great change.
On the wider issue of ISC operations, there are effectively no changes. On the block on ministerial membership, the length of service, the dissolution of the Commons, the resignation arrangements, quorum and membership cap, determination of procedures, reports, approval by the Prime Minister, and agreements on the remit between the agencies and committee, there is very little change. There is certainly little change on areas which will be set out from the Front Bench by my noble friend Lady Smith of Basildon. The only real areas of change are the arrangements on access to operational material and arrangements for the selection of the chairman, both of which I oppose.
Let us take access to operational material. Under present arrangements:
“The position for the present ISC is that the Director-General of the Security Service, the Chief of the Intelligence Service or the Director of the Government Communications Headquarters (as well as the relevant Secretary of State), is able to decline to disclose information because it is sensitive information which, in their opinion, should not be made available. Paragraph 3 removes this ability for the Agency heads to withhold information. The ability to decide that information is to be withheld will instead rest (solely) with the relevant Secretary of State (for the Agencies) or Minister of the Crown (for other government departments)”.
I am quoting from the Explanatory Memorandum. Well: Secretaries of State; ministerial responsibilities. I regret to say that my then right honourable friend Robin Cook is not here to defend his case today; but I was on the committee where Robin Cook had responsibilities in these areas. When he gave evidence to us on one occasion—it has never been made public before, but I am not breaching national security by saying what happened—we were appalled by how defensive he was towards the services. He was most unwilling to provide for us information which the committee felt that it was entitled to hear. That was the view of all members of the committee, including the chairman, at the time. Let us take the position of Michael Heseltine, for whom I have very great regard, in the early 1980s, when he was in pursuit of CND. Are we saying that people like that should be able effectively to veto information being given to the committee when the law provides that the committee has access to operational material? In other words, they would be able to say, “This material cannot be given to the committee”. I have far more faith in the heads of service long before I am prepared to trust Ministers to take particular decisions as to whether the flow of information should be vetoed. To put it more bluntly, I have more faith in the Stephen Landers or the Baroness Manningham-Bullers of this world and in their decisions on these matters than ever I would have in the decision of a Minister of the Crown. Ministers of the Crown on occasions will make thoroughly political decisions; sometimes even their personal credibility might influence the judgments that they make. I think that it is an error of judgment to go down that route.
Under the question of access to operational material, let us take the definition of “sensitive” that might apply to the provision of information to the committee. I quote again from the Explanatory Memorandum on the Bill. Under the present arrangement:
“The position for the present ISC is that information is considered sensitive information, if (among other reasons) it might lead to the identification of, or provide details of, sources of information … or operational methods available to the Agencies; or if it is information about particular operations which had been, were being or were proposed to be undertaken in pursuance of any of the functions of the Agencies. Paragraph 4 extends these parts of the definition of sensitive information … to cover also equivalent information relating to any part of a Government department, or any part of Her Majesty’s forces, which is engaged in intelligence or security activities”.
I read that as meaning that under sub-paragraph (5)(a) and (b) of paragraph 3 of Schedule 1 to the Bill, we are giving a power perhaps to a junior Minister, perhaps even to a Parliamentary Secretary, to block access to operational material in any department if that Minister, adequate or inadequate, wise or unwise, perhaps even being manipulated, decides that the issue is either national security-sensitive or is not reportable to a departmental Select Committee. That is not a reform; it is a fudge.
Then we have the arrangements for the selection and appointment of the chairman. Under Clause 1(6):
“A member of the ISC is to be the Chair of the ISC chosen by its members”.
In other words, at the beginning of a Parliament, perhaps on a change of government, new members of the committee, without any knowledge whatever of the internal dynamics of the committee which are important, of individual member relationships with the agencies, or of the kind of work to be undertaken, are to be asked to appoint a committee chairman. I regard that proposition as ludicrous. When I was first appointed to that committee in 1997, I would not have supported Tom King as chairman. As far as I was concerned, having just come through 17 years in Opposition, to me he appeared to be an abrasive former Cabinet Minister. However, within a matter of months, I realised that he was absolutely ideal for the job; he was perfect in the chair and I would have supported him all the way; but not at the time, after the general election in 1997. Yet under this arrangement, new members will go into that committee and they will be required to vote for a new chairman of the committee. That proposition is quite ludicrous.
The model is wrong. What is my alternative? For a start, it should be a committee of Parliament, not of parliamentarians. We are going partly down that route. The committee should be a creature of Parliament, not of the Executive. I still believe that it is a creature of the Executive because of the ministerial veto. It is not a Select Committee and yet the Labour Party has supported full Select Committee status right through since the debates of 1988, almost 24 years ago. My noble friend Lord Richard made an important contribution to the debate in this House and my noble friend Lord Hattersley, as the shadow Secretary of State at the time, made a similar contribution in the House of Commons, supporting the Select Committee structure. So why are we still arguing the toss after some 24 years? It is widely known that committee members wanted some change, but I do not know what change or even whether this is what they really want. Is real reform being blocked in Cabinet, or perhaps by some boys in short trousers in Downing Street, or is there some legal reason? What is the reason for the fudge?
I believe that the committee should be a Select Committee, meeting on the Parliamentary Estate, established under a modified Select Committee structure, approved by a special resolution of Parliament, with procedures specifically adapted to deal with the handling of issues of national security. It would have the protection of parliamentary privilege, which could be fully considered by the Joint Committee currently being established to deal with the issue of privilege. It could hold those who deliberately misled it in contempt, which is currently the position with Select Committees. It could take evidence under oath and publish reports with the right of the agencies to request redaction, subject to appeal from agency or committee to the Prime Minister, which I call the security override. It should have the power to refer material to other Select Committees, again subject to the override, and have the power to call for persons and papers under similar arrangements. It would be a credible mechanism for the issuing of statements on issues of national security where the agencies might be in the dock in public opinion, as against the present position of a nod and a wink to sympathetic journalists.
I turn to the issue of the handling of operational information and of sensitive material more generally. As I have said, I completely reject the idea that Ministers should effectively have a veto on the flow of such information to the committee. The chairman of the committee should have open, unrestricted access to all post-operational security material, described in the Explanatory Memorandum as,
“retrospective oversight of the operational activities”.
It would be for the chairman in consultation with the agencies, not for Ministers, to decide on whether any operational information should be withheld from the committee for reasons of national security; or for the chairman in consultation with Ministers more widely where other Select Committee considerations were in mind. The chairman would decide. The chairmanship of the committee would then be crucial. Noble Lords will now see why I do not want it to be elected.
This model would change the entire dynamics of the operation of the committee. For a start, you could not elect its chairman. It would subtly change the nature and form of accountability. That appointment would have to be on the agreement of the Prime Minister and the Leader of the Opposition and would be an appointment of trust. Malcolm Rifkind, the noble Lord, Lord King of Bridgwater, my noble friend Lady Taylor of Bolton and others who followed could have done that job and been fully trusted by the agencies to be given access to that material. They would then be responsible for deciding what information the committee was given where issues of the veto arose.
I could go further, although I am still turning it over in my mind. I could argue that there are circumstances in which such a chairman could be given access to pre-operational material on the basis that it could not in any circumstances be disclosed to the committee. Post-operation, of course, it could then fall under the general heading of retrospective oversight and the chairman would then have the discretion, following consultation with the agencies. Noble Lords will note that I have excluded Ministers from the process. The discussions that regularly take place between the Government and the agencies would have no bearing on accountability to the committee. I am proposing a very different model, and I hope that the Government are listening.
Lord Strasburger
My Lords, I am in a small but growing minority in this debate in that I am neither a distinguished lawyer nor a member, not even a former member, of the ISC.
When compared with many other countries, it is remarkable how much the British people hold the courts in high regard and respect their decisions. This is partly because our judges are seen as incorruptible, independent and wise, but the main reason is that court decisions are the result of a process that is fair and transparent. By “fair” I mean that the court will give no privileges to either side, even when one side is the state. This principle is known in European jurisprudence as “equality of arms” and is a very British concept. An important aspect of equality of arms is that each side has an opportunity to see the other side’s evidence, to challenge it and test it, and to call evidence of their own to rebut it. The decision that is made after that process has been respected as one that we have good reason to respect.
What does transparency mean in this context? The principle of transparency entails that proceedings should be open to the public unless there is a very good reason why not. The court should make plain the reason for its decision. No matter how high our regard for the judge, it is very hard to trust his or her decision if you do not know how and why it has been reached.
Closed material proceedings are a big departure from the principles of transparency and fairness. The Government are proposing that, in civil cases where they are the defendant and are being accused of wrongdoing, they should be able to stack the proceedings in their favour on what is probably the deciding issue in the case. CMP is not just a secret hearing with the press excluded; the litigants and their lawyer are also locked out. The Government’s lawyer would have a private meeting with the judge who will decide the case and give him or her so-called evidence that their opponent cannot see. I say “so-called evidence” because it will simply be assertions that have not been tested or challenged. It may be mistaken or could even be complete fiction. Even so, the Bill requires the judge to take this highly dubious information into account when reaching a verdict—a very one-sided arrangement that cannot in any way be described as fair.
What led to the creation of CMPs in the first place? They were introduced for Special Immigration Appeals Commission hearings involving foreigners for whom a national security deportation was being considered. Previously such appeals were held in total secrecy and, by comparison, CMPs were a bit less bad. We are now being invited to extend CMPs from this highly specialised application to civil cases, where the Government are the defendant and are being accused of wrongdoing.
However, that is not the end of this mission creep. Buried in the Bill, in Clause 11(2), is the power for the Secretary of State to amend the definition of “relevant civil proceedings” by statutory order, into who knows what areas of our justice system.
Of course, we have a good idea of how far the Government would really like to go in extending the scope of CMPs. The Green Paper sought to apply CMPs to all civil proceedings involving the Executive. Secret and unfair hearings, therefore, could have been invoked by a hospital trust fighting a medical negligence claim, or a local authority defending itself against a claim for maladministration. For now, the Lord Chancellor has rowed back on that ambition in the face of a mountain of protest, but he has shown us the ominous and dangerous road that he wants to take us down.
What of the safeguards that the Government have trumpeted? We are told that the case judge will decide whether CMPs will be invoked, not the Minister. However, there is a disconnect between what the Government are saying on this and what is actually on the Bill. According to the Bill at present, judges will have their hands tied, with no discretion to consider the competing interests of disclosure in the interests of justice and national security. This, therefore, will effectively be a ministerial decision, with no effective judicial oversight.
What, then, is the problem that this Bill seeks to solve? The current system of PII certificates works well. It allows a balance to be struck between the requirements of justice and national security. If a Minister believes that disclosure could harm the public interest, he or she signs a certificate to that effect. The court then considers the issue, and the judge has a number of ways to handle the information in question. He can withhold it, release it, redact it before he releases it, protect the identity of the witness, and he has a number of other nuanced solutions. The PII system works well, and the Government have failed to bring forward a single example of where the PII system has led to a disclosure that has been damaging to our national security.
In fact, the Bill requires a Minister to “consider” the PII route before applying for a CMP, but the wording of this provision is so weak and easy to evade that, in effect, Ministers can and will demand CMPs without giving any serious consideration to the much fairer PII route. If this Bill is to proceed, before the Minister can ask for a CMP he should have to demonstrate to the court that for some reason a PII certificate will not do the job.
What do others think of this Bill? The House could do worse than listen to the views of the special advocates, specially vetted lawyers who are appointed to serve the court in CMPs. If anyone knows about the grimy details of this part of the justice system, they do. In a memorandum signed by 50 special advisers—which is basically all of them—they say that,
“CMPs are inherently unfair and contrary to the common law tradition … the Government would have to show the most compelling reasons to justify their introduction … no such reasons have been advanced … in our view, none exist”.
There you have it from the horse’s mouth. No reason has been advanced and none exists for making part of our civil justice system inherently unfair. That is the opinion of the specialist lawyers with deep knowledge of this type of proceedings and with no axe to grind at all.
What, then, is behind this solution without a problem? Over the past few months we have been offered a series of spurious justifications for this draconian Bill, all of them without any evidence to support them that stands up to scrutiny. I put it to the House that this Bill has nothing to do with protecting national security or preventing the CIA from withholding intelligence from our agencies because they do not trust our courts, or with saving the Government from having to settle civil cases for large sums because they cannot use sensitive data to defend themselves. All these reasons and others have been advanced at various times with little or no evidence to support them.
I put it to noble Lords that the real problem that this Bill is designed to solve is the justified embarrassment that the security agencies suffered when a recent civil case exposed their involvement in rendition and torture. In that case, the previous Government sought to conceal from the courts seven paragraphs that admitted what the Americans did to the litigant while he was in their custody.
The judge’s view was that:
“Of itself, the treatment to which”,
the litigant,
“was subjected could never properly be described in a democracy as ‘a secret’ or an ‘intelligence secret’ or a ‘summary of classified intelligence’”.
This Bill might have prevented the exposure of this wrongdoing and it may do so in the future if we pass it without major amendments.
Lord Lester of Herne Hill
I am sorry to interrupt my noble friend but that is not quite right. The previous Government attempted to provide that information to the United States Military Commissions, but were thwarted from doing so by the American intelligence authorities. What the British Government sought to do was entirely honourable and they did not seek to conceal it from our own court. I thought I should just place that on the record.
Lord Strasburger
I thank my noble friend for that. The Lord Chancellor has indulged in plenty of comforting rhetoric in an attempt to assuage the serious concerns that many people wiser than I have about this Bill. The problem is that there is a yawning chasm between his words and those in the Bill. For example, he assures us that the judge will decide whether CMP will be used but the Bill as currently worded makes clear that the judge’s hands will be tied and will have little option but to grant the Minister’s request for CMP, even if he or she believes that the case could best be tried using PII rules. The judge will not be able to adjudicate between the competing arguments of justice and national security.
As it currently stands, this Bill is a toolkit for cover-ups. As such it is a threat to our democracy and we have a lot of work to do to fix its serious shortcomings. I hope that my noble and learned friend the Minister will listen to the strong misgivings about this Bill around the House, among civil liberties campaigners and, particularly, the special advocates who have a much more balanced and independent view of these matters than the politicians and the security agencies.
I will listen carefully to the Minister’s response today and in Committee. I hope that he is able to give me comfort to support a much-improved version of the Bill in the future but there is a long way to go.
Lord Faulks
My Lords, this Bill was always likely to be controversial and contributions so far have shown that that is the case. Part 2 has been a particular focus of attention. It is concerned with restricting the disclosure of sensitive material in court proceedings. A number of noble Lords have spoken who are not lawyers, and I entirely agree that the issues that this Bill throws up are not solely the possession of lawyers. I am, however, an advocate and as such am instinctively opposed to any erosion of the principle of natural or open justice. Evidence should be heard and read by litigants and their representatives, and their comments and reactions to it are a fundamental part of what we recognise to be a fair trial, whether that trial is in criminal or civil proceedings.
The Bill involves the extension of CMPs to include civil proceedings. It should be emphasised that CMPs are not of themselves a novelty and exist in a number of different contexts, as the Minister has described. The extension was presaged by the Green Paper, and the Government’s proposals have been much commented on in the media and by various interested parties. The Government have acknowledged the contribution of those who commented on the proposals, not least the JCHR, of which I am now a member, although I claim no credit for that contribution as I was not a member at the material time. I am conscious of some of my distinguished predecessors on that committee. Contributors to the debate even included the Daily Mail, a newspaper that normally causes the party opposite to reach for their collective smelling salts.
In response to representations, the Government have made some important modifications to their original proposals. The most important seems to be that the CMPs will be appropriate only in the disclosure of evidence that would be,
“damaging to the interests of national security”,
rather than in criminal proceedings or disclosure that might damage international relations. I share with the noble Marquess, Lord Lothian, some little confusion as to why inquests fall into a separate category. As the noble Lord, Lord Lester, has said, this may be to do with the jurisprudence in Strasbourg about Article 2 and its expanded approach. The questioning in inquests may be rather different than in civil proceedings or judicial review proceedings, or the Government, as a reasonable matter of political expediency, may have responded to public disquiet.
Be that as it may, there appear to me to be certain relevant questions about what remains of CMPs. Have the Government made their case for an extension of CMPs, and if so are there sufficient safeguards in the Bill to minimise any risk to justice? The problem with the current system is that the Government are between a rock and a hard place. They may take the view that in disclosing material that will damage the interests of national security, but using PII if the application is successful, they may not be able to defend proceedings without what may be crucial evidence in their favour. The result may be that there is an inappropriate compromise of a civil claim.
The noble Lord, Lord Thomas, says that the Government are apparently in favour of the settlement of proceedings. This is not what I detect from the anxiety behind this Bill; they are in fact against inappropriate settlements where evidence has not been adduced. On the other hand, if the PII application is unsuccessful and the judge in performing the relevant balancing exercise decides to order the disclosure of material, the Government, consistent with their assessment of the potential damage in disclosure, will be placed in a position where they may have to settle a claim, to which there is if not an actual then at least a potential answer. This cannot be satisfactory and is of itself damaging to the interests of justice. The Government are entitled to justice, too.
The noble Lord, Lord Pannick, says quite rightly that in the course of looking at the doctrine of PII, judges have developed a range of responses to mitigate the stark choice that is sometimes presented to the Government. The ingenuity of judges includes the redaction of material and anonymisation and other procedures, but sometimes—this has been the case in the past and will be so again—the Government are left with that stark choice, which I understand is the philosophy behind this part of the Bill.
I am naturally concerned by the comments about CMPs that have been made by the special advocates, some of whom I know well. Many of their points seem valid; in particular, I am unsure how a satisfactory assessment of prospects of success can be made in the absence of critical evidence. How, too, can cases settle on the basis of a proper assessment of likely outcome—and here I acknowledge the point made appropriately by the noble Lord, Lord Thomas? How is Part 36 of the Civil Procedure Rules to operate? I am also very sympathetic to their very understandable regard for their clients’ interests, which they feel may be compromised by the lack of a free flow of communication between the special advocates and open advocates and by the risk that some relevant piece of information may remain unchallenged because of this lack of communication.
I am much less convinced, however, by the suggestion that PII is working well. I am entirely sure, as the noble Lord, Lord Macdonald, pointed out, that judges are performing the balancing exercises wisely, but for the reasons I have given the operation of PII may on occasion simply fail to deliver a just decision.
The use of CMPs will inevitably be what has been described by the independent reviewer as a second-best solution. However, it is significant that David Anderson QC, in the course of his providing memoranda to the JCHR, was convinced that there was a need to have a CMP available as an option in civil cases, albeit that it might not need to be exercised anything other than very occasionally, and I agree.
Special advocates, whatever their reservations about these procedures, are known to be tenacious in the defence of their clients and in challenging evidence adduced in CMPs. It must be recorded that a number of distinguished judges, not least the noble and learned Lord, Lord Woolf, who is not in his place, have said that CMPs are capable of producing justice and are consistent with it. Other judges, such as the much quoted noble and learned Lord, Lord Kerr, have observed that the lack of informed challenge, based on instructions, may leave the judge with a significant disadvantage in assessing the cogency of relevant evidence.
While in theory that is undoubtedly right, experience of our judiciary tells me that if evidence is adduced under CMPs, judges are likely to be particular rigorous in assessing its value. For example, if what is adduced amounts to double hearsay from a dubious source, that evidence, which could be unchallenged, is unlikely to be of much persuasive value. I simply do not recognise the scenario described by the noble Lord, Lord Strasburger, whereby little bits and fragments of assertion are put forward and expected to be relied upon by judges. It seems to me that if the Secretary of State elects to invoke CMPs, he or she is likely to do so only when the evidence is of real cogency. Let us not forget that the Government have lost cases after CMPs.
It is also worth observing that the extension of CMPs relates to civil proceedings involving claims for damages or judicial review, rather than to criminal proceedings, as we were reminded by the noble Lord, Lord Butler of Brockwell. While all cases should be subject to a full and preferably open hearing, the extension provided by this legislation is not concerned with criminal charges with a potential for loss of liberty.
The relative roles of the judge and the Secretary of State were much discussed in the responses to the Green Paper. It is for the Secretary of State to make the application, and the court must then make an appropriate declaration. However, I agree with the noble and learned Lord, Lord Mackay of Clashfern, that under Clause 6(2) one would expect the judge to try and devise strategies and to be interventionist in order to have a mode of trial that can, if possible, avoid CMPs, which are perhaps a last resort—but a necessary last resort.
It is said that Clause 6(5), which provides that the Secretary of State must first consider making a claim for PII, is of very little force. However, I would expect the Secretary of State to need to satisfy a judge that there had been at least consideration of such an option, and an explanation provided as to why PII was not used. The rules of court that are to be made pursuant to Clause 7 require a judge to consider providing a summary or gist of the material that is not damaging, within the definition of the Bill. Presumably, it would enable the claimant to provide some comments on the relevant evidence. This would need to be carefully done, but it would provide a potentially important safeguard.
The role of the Human Rights Act is also of importance. Article 6—the right to a fair trial—is specifically referred to in the Bill and provides another safeguard. In fact, we had well established principles of fair and open justice long before the Human Rights Act came into force. However, if one is to view these provisions in Human Rights Act terms, it should be remembered that Article 2 of the convention places an obligation on the Government, as a public authority, to protect the life of their citizens. In focusing on litigants, we should not forget the rest of the population, whose well-being may well be jeopardised by the disclosure of sensitive material.
Such concerns also colour my approach to the removal of the Norwich Pharmacal remedy in relation to sensitive material. It is vital that we protect the sources of our intelligence and that we maintain the confidence of our allies who provide us with that intelligence. If there was any doubt about that, it was confirmed by the noble Lord, Lord Butler, and the noble Marquess, Lord Lothian. This remedy is concerned with cases in which foreign litigants want to see material that we hold innocently and does not affect cases where the Government are alleged to have been involved in wrongdoing, although I do not particularly like the expression “legal tourism” in this context. While I understand why the Government have chosen a wide definition of sensitive material, I invite the Minister to explain why the definition needs to be quite as wide as it is in the Bill. I do not suppose that it is intended to deny access to what most people might regard as non-sensitive material, but the Bill at least has the potential to allow such an approach.
We have heard a lucid analysis of the Binyam Mohamed case by the noble Lord, Lord Lester; and other noble Lords, including the noble Lord, Lord Pannick, referred to it. It can be seen from an examination of that case law that the courts in fact showed a considerable degree of deference to the security services, and some of the concerns expressed by other countries may be rather lacking in justification. However, it has to be remembered that the Norwich Pharmacal power is unqualified. The Government do not have the choice that they have in relation to the CMPs, and if ordered to produce this material they have to comply with the order.
Whether or not the fears of the United States and other countries are unfounded, it is critical for the safety of our country in these dangerous times that we do not jeopardise that relationship. I appreciate that the Government are placed in a very delicate dilemma, and it seems that we should have profound sympathy with their response, albeit that modifications may be made in the rigour of that test, which will more satisfactorily balance the respective interests.
This Bill will be thoroughly scrutinised by your Lordships’ House—
Lord Lester of Herne Hill
My noble friend may not be aware of the fact that in the Binyam Mohamed case, after the Norwich Pharmacal order was made, the court reserved the question of public interest immunity, but it never had to be decided because he was then released. It would not have been all or nothing. It is quite clear from the judgments that there would have been something. The courts, having decided Norwich Pharmacal, could then have decided on PII. I am not sure whether that is appreciated.
Lord Faulks
I entirely appreciate that. It is one reason why I suggest that there may be some modification to the test that we may ultimately arrive at, after having considered this matter in Committee. This Bill will be thoroughly scrutinised in Committee by your Lordships’ House, and it is clearly right that it should be. I hope and trust that we can avoid hackneyed references to Kafka and the Star Chamber. I am sorry that in an otherwise lucid speech by the noble Lord, Lord Beecham, he did not resist that temptation. The Government have a duty to protect us. This Bill is situated at the junction between that duty and the need to protect civil liberties and the integrity of the trial process. Please let us not forget the people of this country and those in the security services who labour silently on our behalf to protect them, in the course of our zeal to trumpet our commitment to the rights of litigants.
Baroness Hamwee
My Lords, it is not unusual at this stage of a debate to think that everything has been said and that everyone has said it. Indeed, on this occasion the people who have said it are those who know about the subject. There is one exception, because there is one Back-Bench contribution still to be made. I am sure that what I have said will apply to that contribution as well. Your Lordships are too polite to say, “Well sit down then”. However, like some of us, I acknowledge that I speak from a degree of ignorance and, some might say, naivety. The noble Lord, Lord Hodgson, described his feelings as apprehension. I would say that apprehension does not begin to describe it.
Part 1, which deals with the oversight of intelligence and security activities, had been eclipsed by Part 2 in the comments that we received before this debate. It is interesting, and encouraging, that more attention has been given to Part 1 than I expected. It is very significant, not least because we want to avoid the litigation which may be the subject of Part 2. However, just as the question about Part 2 is whether the Bill has drawn back enough from what was floated in the Green Paper, on Part 1 the question is whether the provisions go far enough to meet concerns to achieve all that could be achieved, or are we in danger of missing an opportunity? That would be a pity given the calls, to which reference has been made, for strengthening the powers of the Intelligence and Security Committee and for making changes to its composition, its staffing and its remit to support that strengthening.
There are a lot of related terms for the functions of such a committee: oversight, examination, supervision and scrutiny. “Oversight” is in the heading of Part 1. I wonder whether that is the right word. The functions described are essentially retrospective, and the ability to put material in the public domain—which, to me, is fundamental and possibly the main part needing scrutiny—is constrained. Indeed, the committee itself may not always be able to access key information. However, to be positive, I note that the functions under Clause 2 adding the operational function, which are new in comparison with the 1994 Act, are there and that is welcome.
Operational matters which are not current are of significant national interest. We might want to unpack what that means later. They also have to be consistent with the memorandum of understanding which Clause 2 provides for. I ask the Minister whether we are able to see a draft of the memorandum of understanding so that we can debate it in context, or perhaps a draft or framework or some clues about the principles referred to in Clause 2.
The new status of the committee is important but, given that its reporting function is subject to prime ministerial edit—other noble Lords have said much the same thing—it still reads as a creature of the Executive. Perceptions are important and it is important to demonstrate independence. I note that what is defined as sensitive information, subject to restrictions on disclosure, is to cover not only the three agencies but also,
“any part of a government department, or any part of Her Majesty’s forces, which is engaged in intelligence or security activities”.
I accept, as the noble Marquess, Lord Lothian, pointed out, that national security is narrower than public interest.
The role played by government departments in the intelligence landscape is an issue and I do not think that that is an irrelevant comment. For some time, I have been wondering whether the Home Office, for instance, would have a different culture if the Office for Security and Counter-Terrorism were not embedded in it; they are in the same building. Perhaps I may indulge in a small flight of fancy: if the Home Office building were used, for instance, by civil liberties campaign groups, there would be a very different sort of conversation around the water cooler.
One of the difficulties is that, by definition, intelligence is not evidence, as has been said by many noble Lords. The ISC cannot substitute for the judicial process. We have the Investigatory Powers Tribunal investigating individual complaints. Is that worth exploring? I want this committee to be quite ambitious, so is it worth exploring whether it should have some sort of role in dealing with complaints and perhaps even with inspections? I also wonder aloud whether the committee might have a role—perhaps I am about to be struck by a thunderbolt—in confirmatory hearings of senior appointments.
We need to find out how to do these things without jeopardising what is sensitive within the definition. We know that the intelligence services are understandably sensitive about sensitive material. Even if there is too much such material to make redaction practicable, some such role might provide some reassurances.
In summary, I am searching for ways for the ISC to use procedures, not to be hamstrung by them. Others have spoken in detail on Part 2 and I acknowledge how far the Bill is from the Green Paper—and it was a Green Paper. If it is possible for something to enter one’s DNA during one’s late teens and early 20s, the fact that a lawyer should be able to take full instructions from his client worked its way into my DNA as I learnt my profession. It is not a matter of a client giving a monologue, but there has to be a dialogue with questions to the client and a discussion of what will or might be said against him. The noble Lord, Lord Judd, said that the special advocates made it clear that the procedures were alien to their training. Evidence is not evidence unless it is the subject of test and challenge. Almost all speakers have referred to that. I use the term “unease” as a description for my response to what is proposed now. I suspect that no one in this Chamber or who has been involved with the Bill is complacent about it.
Is it possible to loosen restrictions on special advocates to security-clear “normal” lawyers, if there is such a thing? I think that my noble friend Lady Williams suggested that. My noble friend Lord Thomas of Gresford shared ideas about changes in the process. I share a concern that closed material procedure will become the default mechanism—it will become normalised. Like my noble friend Lord Macdonald, I acknowledge that there is a small number of cases where some such procedure may be required to achieve justice. Some call CMP “secret justice”, but that is not a term that I like, because we and the public need to be convinced that it is justice as well as secret.
I noted the comments that the judiciary is deferential to the Government on security matters. I suspect that the Government may not see it that way, given some of the comments that we have heard about the judiciary over the years. The noble Lord, Lord Faulks, referred to a particular case. I do not share that reading of deference. Instead, I hope that I see the integrity to which my noble friend Lady Williams referred.
Because of that element of my DNA, I was keen during the passage of the recent Protection of Freedoms Bill to pick up an issue that was highlighted by the Bar Council, and I will mention it briefly today because I hope to return to it in Committee. I refer to the issue of legal professional privilege, which ought to sit easily within the Bill. I hope to use the Committee stage to pursue how to prevent the use of RIPA powers of surveillance, covert human intelligence sources, interception of communication and the acquisition of communications data to target legally privileged information while permitting it to be accessed when a lawyer/client relationship is abused for criminal purposes. One cannot do one’s best for a client if he does not have confidence that what he says is privileged and he edits his story. The noble Lord, Lord Henley, who is to respond to the debate, will be familiar with that. He was very helpful in meeting the Bar Council during the Protection of Freedoms Bill and I will trouble him again.
Last week, I had the privilege of judging some awards for good scrutiny. There are many dedicated and imaginative scrutineers out in the rest of the world. It reminded me that some words are not jargon. They are very important terms and they will never go out of fashion. Justice is obviously one and so, too, are transparency and accountability.
Baroness Manningham-Buller
My Lords, I declare an interest. I spent 33 years in the Security Service, but I also have a strong interest in the rule of law. I retired more than five years ago and the difficulties of intelligence and the civil courts, which is what we are talking about rather than the criminal courts, and the problem of Norwich Pharmacal have largely arisen since I retired.
Some important points have been made in today’s Second Reading, with many of which I sympathise. When we come to Committee, no doubt there will be a number of amendments that will seek to refine and improve the Bill. At this stage, I want to talk about the three main themes of the Bill in the order in which they come. I start with the Intelligence and Security Committee.
In the 1980s, although the noble Lord, Lord Butler, said that the intelligence and security agencies were anxious about such scrutiny, I can remember many in my service arguing for it. We felt that some parliamentary oversight—what those words mean, I agree with the noble Baroness, Lady Hamwee, is not entirely clear—was necessary. We thought that there was a democratic deficit. We found little support from the Prime Minister of the day or from the Government for that sort of committee. Not until many years later, in 1994, did it come into existence.
As the noble Lord, Lord Campbell-Savours, says, what we are seeing here is evolutionary not radical change. It is worth saying that my predecessors, I believe my successor and I have over the years ignored the narrow rubric of the Act, which says that the committee should confine itself to looking at matters of “policy, expenditure and administration”. This was always risible because all of those things are intimately connected with the operations of the service. Although we did not do so to begin with, because confidence needed to build up, certainly over the years we have sought to be very open with the committee and, looking for example at the 7/7 report that has extensive details of operations, we have been so.
I never refused to answer a question of the committee. That may have been because the committee itself was quite sensitive in not asking me, for example, the identity of my most important agent in the IRA or al-Qaeda because the committee itself understood that, in order to fulfil its function, it did not need this sort of really sensitive intelligence. The committee will evolve further. From my own view, I do not see a problem with it becoming a Select Committee. I am very interested and flattered that the noble Lord, Lord Campbell-Savours, thinks that he would get more truth from the head of the committee than the Ministers, on which I could not possibly comment. I end this bit by saying that it is very much in the interests of the security and intelligence agencies that parliamentary oversight is as thorough and convincing as possible. This is why, when my name was put forward to be on the committee, I said I could not possibly do it because the committee would be looking at things when I was director general.
This brings me on to the closed material proceedings. I understand the very real concern expressed in this House and outside that what the Government are proposing in resorting to secret justice—probably itself a contradiction in terms—is to conceal wrongdoing and to protect what should rightly be exposed. From my reading of it—and I accept that a number of bits need amendment—the Bill tries to address serious dilemma in very few cases, though we can argue in Committee how well.
I am interested that the noble Lord, Lord Macdonald, and the noble Baronesses, Lady O’Loan and Lady Hamwee—and probably many others earlier in the debate, I cannot remember—acknowledge that there may be some small, narrow band of cases where the dilemma on how to deliver justice is to bring highly relevant but sensitive material that would be excluded by PII into court and not keep it out. It is surely fair to claimants and to defendants in civil cases that such material is put in. The judge will decide whether it will be a CMP procedure.
Currently, a number of serious distortions in small cases seem to occur. Allegations become facts because they cannot be defended. Settlements presume guilt, even when the Government admit no liability. Perhaps almost more importantly, claimants may get financial satisfaction, but only that. Whether through these proposals or others, we need a way that is safe to test the allegations, some of which, as the noble Lord, Lord Pannick, said, are extremely serious and of the gravest nature against the Government and agencies like my own. These need to be properly investigated by the court and a determination made, which, I suggest, cannot happen without secret material.
This brings me to Norwich Pharmacal, which is new to me. I am interested to hear from present members of the parliamentary committee that it is already seriously damaging the exchange of intelligence, perhaps from a false perception of what the High Court determined.
The control principle is a pretty fundamental one. If we threaten and undermine it, we will be the losers. There is an exchange of intelligence around the world, not just with the Americans. All our European friends produce hundreds of pieces of information a day. It comes from Australia, New Zealand and Belgium—not much from Belgium, but a bit. We receive lots from France, from Germany, from Spain and from friends in the Middle East. We receive intelligence from countries and states that are not friends, and whose intelligence exchange has to be carefully handled. There is an enormous amount of intelligence.
The sources of foreign intelligence, just the same as those of our intelligence, are often fragile. Human sources can be exposed and killed. They have Article 1 rights to life just the same as other people. Technical sources can be quickly compromised and rendered useless. Other countries will not share with us if doing so jeopardises, or they judge it to jeopardise, their sources of intelligence. Who can blame them? We would do the same. We will not always or, indeed, even usually know or be able to judge the risk to their sources. Of course they make a judgment before handing us the intelligence, but if the judgment is that that would risk exposure, they will not hand it over. We need that intelligence when faced with a globalised threat.
I had further points I wanted to make in my speech, but many of them have already been covered by other speakers. I shall therefore end by saying that I have heard a lot in the debate about the conflict between liberty and security. Fundamentally, I feel that these are not concepts that should be in conflict. Security underpins liberty and, as I said in my Reith lectures, without security there is no liberty. I should say that I agree strongly with the comments of the noble Baroness, Lady Williams of Crosby, on that. When we reach the Committee stage, I hope that it is within our capability to pass an Act that damages neither liberty nor security and delivers justice that, while it is not open and therefore definitely second best, is better than the absence of justice in a very narrow range of cases where the use of highly sensitive material in court is necessary.
Baroness Smith of Basildon
My Lords, we have had an interesting and informative debate and I hope that the Minister is grateful for the detailed and useful comments that have been made. They are an indication of the kind of debate we will have in Committee, which I think will be very constructive. Not only has this debate been worthwhile and informative, but I was struck by where the areas of agreement are, where the areas of disagreement and concern are, and where there is broad agreement on those areas of disagreement and concern, if the noble Lord follows my logic.
I suppose that I have to declare a non-interest in that I am one of those who the noble Lord, Lord, Lord Hodgson, referred to as an “outsider” and who my noble friend Lord Judd called a “flat-footed layman”. However, I should say that in the debate today the majority of speakers were non-lawyers—only narrowly, but we made the majority. I would argue that while it is a legal debate and there are strong legal implications or stages, it is not just a legal debate. As the Minister said when he introduced the debate, these are complex issues that go to the heart of our democracy and our security, so the Government have to find a correct balance that takes into account our national security while not losing sight of individual rights. As many noble Lords indicated, there are times when finding that correct balance is challenging.
I was interested in the analogy drawn by the noble Baroness, Lady Berridge, of the statue of Lady Justice and her seven scales. I know she meant it to be an amusing comment, but there is a lot in it which reflects how complex and difficult these things are. She made quite a serious point in that regard. What is clear is that the level of expertise available in your Lordships’ House to contribute to this debate will try to seek the consensus that the Government originally referred to. It might be that one of the reasons the Government started the Bill in your Lordships’ House was to make use of that knowledge, experience and expertise.
If I may digress slightly, noble Lords may recall that in making the case for an elected House with 15-year terms, the Deputy Prime Minister Nick Clegg described your Lordships’ House as having a “veneer of expertise”. That is hardly the case today. We have not seen a veneer of expertise; we have seen very strong expertise, not just from the lawyers that I have mentioned and senior members of the Bar and the judiciary, but members and former members of the Intelligence and Security Committee and the Constitution Committee, those with professional experience of security agencies, those with experience of government, former Ministers, journalists and those with a record of standing up for the protection of civil liberties and human rights. I think that the Deputy Prime Minister also said that the knowledge in the Lords was 40 years out of date. The collective knowledge in this House goes back well beyond 40 years but it is also up-to-date, and that will be very valuable as we progress to Committee.
I do not want to dwell in any detail on the Ministry of Justice issues that my noble friend Lord Beecham has already referred to, but will focus mainly—although not exclusively—on Part 1 of the Bill regarding the oversight of intelligence and security activities. The noble Lord, Lord Butler of Brockwell, referred to the “modernisation” of the committee. I always baulk slightly at the word modernisation because it often means technology and doing things differently for the sake of it. But I think he went on to describe the kind of progress that he was seeking and perhaps the words “progressive reform” might be a better way of looking at this.
The Bill seeks to reform the ISC by giving it the formal statutory function of overseeing the wider intelligence community, not just the agencies but including counterterrorism and the Home Office. It provides for retrospective oversight of operational activities, as happened once before with the 7/7 report that we have heard about. It also provides the power to require information from agency heads, with a veto only by the Secretary of State—or Minister if it is the Cabinet Office—and that Parliament will elect the ISC from a list put forward by the PM after consultation with the Leader of the Opposition. The proposal is that the chair should be chosen by members of the ISC, not the Prime Minister.
In the main, we support what are sensible proposals to strengthen the ISC’s power of scrutiny, which stem, I understand, from the ISC’s own report, published last summer. There is widespread support for improved oversight and scrutiny, but a number of noble Lords, including my noble friend Lord Campbell-Savours and the noble Baroness, Lady Manningham-Buller, asked whether these proposals go far enough and whether there was scope to strengthen them further. It would be helpful to consider a number of additional items to improve the scrutiny and oversight; for example, for the ISC or its chair to have a greater ability to view individual cases, such as control orders, or for the chair to be a senior opposition MP.
The Government should also consider authorising, where appropriate, some of the committee’s hearings to be held in public in order to strengthen public confidence in the committee. In the same vein, we believe it would be helpful and would benefit public accountability for the agency heads to come before the committee in public once a year, just as they do in the US Congress. Furthermore, we want to give further scrutiny in Committee to the ministerial veto over the release of information. Specifically, we want to probe the Government’s definition of “sensitive information”. I will come back to that because it was raised by several noble Lords, but we want to probe what the Government mean by the definition in sub-paragraph (3)(b) of paragraph 3 of Schedule 1, which refers to,
“information of such a nature that, if the Minister were requested to produce it before a Departmental Select Committee of the House of Commons, the Minister would consider (on grounds which were not limited to national security) it proper not to do so”.
I am not clear why this is necessary over and above the test of national security and sensitive information.
As the Bill progresses, we would also be interested to hear the justification for Clause 3(4). It allows the Prime Minister to order the exclusion of part of the committee’s report to Parliament if the Prime Minister considers, after consultation with the ISC, that it is prejudicial to the discharge of the functions of any of the agencies.
I move on to Part 2. Clauses 13 and 14 relate to the Norwich Pharmacal jurisdiction. This has been referred to today by a number of noble Lords. In discussing its implications, there are two issues: first, whether the Government have correctly identified the problem and, secondly, whether they have correctly identified the solution. As we have heard, the Norwich Pharmacal case was an intellectual property rights case in 1974. It set the precedent of residual disclosure jurisdiction, whereby the courts can order disclosure of information by a third party—neither the plaintiff nor the defendant—if the following conditions pertain: the information is required in order to bring action against an alleged wrongdoer; the third party against whom the order is sought is “mixed up”, however innocently, in the wrongdoing; and the third party is in a position to provide the information sought.
Clearly, in 1974, no-one envisaged the extension of this case to intelligence—that was never the intention—but the Binyam Mohamed case in 2010, mentioned already, highlighted the possibility of application of the principle to the disclosure of foreign intelligence. I understand that there were other cases as well. According to the Government’s independent reviewer of terrorism legislation, David Anderson QC, this case also prompted concerns among our intelligence partners that the UK Government could no longer guarantee the control principle, which is that intelligence shared with us would not be published by our courts. There is an interesting quote from David Anderson QC, who says:
“The realisation that secret US material could in principle be ordered to be disclosed by an English court, notwithstanding the control principle, and that the Government had no power to prevent this from happening, appears to have come as a genuine shock to many influential people in America”.
I must say that until the noble Baroness, Lady Manningham-Buller, spoke, I was quite disappointed that so much of the debate centred around intelligence sharing and our relationship with the Americans. As the noble Baroness pointed out, there are many other countries with which we share information and which are valued intelligence partners.
We appreciate that the control principle is a central understanding of our intelligence-sharing relationships with other countries and it is therefore essential to provide the necessary assurances to our international partners that this will be safeguarded. We must also recognise that there are profound implications of Norwich Pharmacal in terms of jeopardising foreign intelligence sharing, and the evidence seen by David Anderson QC appears to justify these concerns. Therefore, any solution must provide adequate guarantees to our foreign intelligence partners that intelligence shared will not be forcibly disclosed.
However, as has been rightly indicated by several noble Lords in the course of this debate, the key question here is whether the Government’s proposals to resolve this problem, in the words of David Anderson QC again, provide “proportionate limitations” to the Norwich Pharmacal precedent. We can support the direction of the Government’s policy, but we want to work with them to get the detailed definition of the clauses right. We will wish to probe some of our concerns around, for example, the Government’s definition of sensitive information, and specifically how tightly this definition is drawn. The first point of principle is whether it does the job that the Government say it does—that is, whether it provides the necessary assurances for our foreign intelligence partners. However, equally important is whether it is drawn more widely than is necessary for the specific purpose of safeguarding that control principle. The noble and learned Lord, Lord Mackay of Clashfern, and the noble Lord, Lord Pannick, both queried the extent of the definition of sensitive information, as did the noble Lord, Lord Macdonald. We want to probe the Government further on exactly what they mean in their definition of sensitive information. We also want to know what they mean by,
“information relating to an intelligence service”,
and the justification for that inclusion as part of the definition of sensitive material.
In relation to the public interest test under Clause 13(3)(e) of the definition, we will want to probe further what the Government mean in Clause 13(5)(b) by the interests of international relations. The noble Lords, Lord Dubs and Lord Macdonald, also referred to this. The clause refers to the damage,
“to the interest of the international relations of the United Kingdom”.
I can certainly understand the need to act in the interests of national security and appreciate the importance of international relations, but we will need to be assured that this will be in the public interest as defined by the Bill and not for reasons of political expediency on the part of any Government. As the noble Marquess, Lord Lothian, said, something cannot be excluded merely because it is embarrassing to government.
I do not recall mention in today’s debate of the fact that the proposals seem to extend wider than simply information derived from foreign agencies but also cover information originating from our own agencies that relates to foreign countries. The justification for that cannot be on the basis of preserving the control principle, because it does not relate to information shared with us by our foreign partners. Therefore, we would be interested to hear the Government’s explanation and justification for their intention to extend the scope of the Bill in this way.
The noble Lord, Lord Pannick, referred to open, natural justice being a constitutional principle but not sacrosanct, but he made it clear, taking up the point made by my noble friend Lord Beecham in his introduction, that we need far more information from the Government on whether this is justified. Like the noble Lord, Lord Lester of Herne Hill, we are not in principle against closed material procedures, but their use here would require a very high bar. The Government have yet to provide sufficient information to reach that bar. The noble Lords, Lord Pannick and Lord Macdonald, said that the case had not yet been made and both gave very interesting examples of how PII could be used in some enhanced form to create what the Government are seeking. If the case for CMPs relies on the 27 cases that the Government have spoken about, it is clear that a greater examination of those cases is necessary. That will require a far longer, more in-depth study by the independent reviewer or the ISC, because far more information on those cases is needed.
This has been a useful and interesting debate which has given us good material for the next stage of the Bill. If the objective of your Lordships’ House is to improve the legislation, the experience that was on offer in today’s debate and the information gained from it will enable us to do that.
The Minister of State, Home Office (Lord Henley)
My Lords, this has been an interesting and long debate. It seems quite a while since we started at 3 pm. We have got through some 22 speakers and I find myself being the 23rd. It is a short Bill, of some 16 clauses, but it raises some pretty big issues and has attracted a very distinguished congregation—if I may put it in those terms—to speak on it.
There has been some comment about the number of lawyers here today, and I was very grateful to the noble Lord, Lord Dubs, for being the first to point out—echoed by others—that this is not just a legal Bill and not just for the lawyers. I was glad that the noble Baroness, Lady Smith, having done a quick count, pointed out that the non-lawyers are in the majority in this debate, which is probably as it should be. However, as the noble Baroness said, it has attracted a lot of other distinguished speakers. We are very grateful for the presence of all those who are members of the JCHR and the Constitution Committee; all those who, like my noble friend Lord Lothian and the noble Lord, Lord Butler, are currently members of the Intelligence and Security Committee; and former members, self-described as part of the awkward squad, in the form of the noble Lord, Lord Campbell-Savours.
We are grateful for all that, and I hope that, as part of this debate and a fairly lengthy Committee stage and other stages, we will be able to go some way towards achieving the consensus that the noble Lord, Lord Lester, was looking for. It will not be possible to get consensus on every item, because I think that there are some fairly deeply held views that cannot be brought together, but I am sure that there are many things on which we will be able to get agreement. I am sure, too, that we will make every effort to ensure that the best possible Bill leaves this House to go on to another place. As my noble friend Lord Faulks, stressed, we need a very thorough Committee and later stages.
As I said, it is a short Bill that raises some extremely big issues. My noble and learned friend Lord Wallace took it in its proper order. He dealt first with Part 1 and then with Part 2 on the restrictions on the disclosure of sensitive material. If noble Lords will bear with me, I prefer to take it the other way round, because there has been far more talk in the debate about Part 2 than Part 1, but I will get to Part 1 in due course. I must also say in my opening remarks that it will obviously be very difficult for me to answer all the points put this afternoon in the necessarily shortish speech that I have to make, but I shall try to cover some of the broad themes. I hope that my noble and learned friend and I will be able to write to noble Lords and copy those letters to others as appropriate after the debate and ensure that we get those letters out before Committee, which, I understand, will be in the week commencing 9 July, so we have a little time to do that.
I begin with Part 2, with CMPs and Norwich Pharmacal. That has obviously excited most of the debate. Like my noble and learned friend the Advocate-General, I believe that the case is made to change how we deal with sensitive information in our courts. The novel application of Norwich Pharmacal jurisdiction to national security information has had consequences with key allies, as many noble Lords mentioned—I think the first was the noble Lord, Lord Butler. It is not just America, as some have implied, it is all our key allies. However, the provisions in the Bill are not driven solely by our intelligence partners. Secret intelligence generated by the UK’s own security and intelligence agencies could be liable to be disclosed as well. Parliament has recognised that the work of the security and intelligence agencies is of a special type. Information is core to their work and special arrangements already cover how they use and disclose it.
Although we all aspire to be able to hear every court case in open court with all relevant information disclosed to all parties in the case, I think that most noble Lords have accepted that there will be times when some of that information cannot be disclosed without damaging the public interest. The question we must put to ourselves—this will take some time in the course of our debate in Committee—is how we deal with that situation. Settling cases or asking the court to strike them out as untriable, may mean that claims, often making extremely serious allegations, can go unexamined and we are unable to get to the truth of what happened. I do not believe that that is justice.
PII has been another approach. It enables cases to go ahead with fully open proceedings but at the expense of excluding relevant and sensitive material from the case. That can work in some cases, but there are times when it does not—for example, where a case is saturated in sensitive material, as David Anderson QC put it. A successful PII application can render a case untriable or leave the Government unable to defend themselves without damaging national security. That can be unfair for claimants or for the Government.
CMPs have been the solution to that problem and they have worked successfully in a number of contexts. The noble Lord, Lord Butler, said that they were the least worst option. My noble friend Lord Lothian described them as being, on balance, about right. Openness is sacrificed for part of the proceedings, and this enables all relevant material, including national security sensitive material, to be taken into account by the court, but it is done in such a way that the proceedings are fair and the interests of any party excluded are properly represented. The Supreme Court has stated that it is for Parliament to decide what the procedures should be for dealing with such cases. The Government produced the Green Paper and we listened to the views. Again, many noble Lords, I think particularly my noble friends on the Liberal Democrat Benches, have accepted that we listened to the views and have moved forward a great deal from what was in the Green Paper and put forward for public consultation. We have brought forward the amended proposals in this Bill.
Noble Lords have highlighted a number of key issues in this debate and those discussions that we will have during subsequent stages of the Bill will obviously let us explore whether the Government have the balance right in these important matters. Perhaps I might deal with one or two of the points that have been raised that deserve some response at this stage, if I can find the right bits of paper—they are all here but in a strange order.
First, I wanted to cover the points made about special advocates and the recent paper that they put to the Joint Committee on Human Rights. I have seen their evidence, which I believe was published last week. The special advocates are reiterating arguments which they have made and, in effect, have had rejected by the courts. To some extent, special advocates do themselves a disservice. They are extremely effective, particularly in arguing in court that more information should be disclosed, and have helped to win cases by challenging closed evidence on occasions. The best way of dealing with this would be to quote what the noble and learned Lord, Lord Woolf, said in M v Secretary of State for the Home Department. He stated:
“Having read the transcripts, we are impressed by the openness and fairness with which the issues in the closed session were dealt with by those who were responsible for the evidence given before SIAC … We feel the case has additional importance because it does clearly demonstrate that, while the procedures which SIAC have to adopt are not ideal, it is possible by using special advocates to ensure that those detained can achieve justice and it is wrong therefore to undervalue the SIAC appeal process”.
I commend that to the special advocates and would suggest that they reflect on it.
I turn to the Binyam Mohamed case, which the noble Lord, Lord Lester, raised and has dealt with. He probably knows more about it than anyone else. On the information revealed in that case and whether it was in the public domain, my understanding is that the Court of Appeal ordered that seven paragraphs redacted from the Divisional Court’s judgment, which contained a summary of US intelligence reporting, should be restored to the judgment despite the existence of a PII certificate from the Foreign Secretary. The judge in the US did not put the contents, or a summary of the contents of the US intelligence reporting provided to the UK, into the public domain. The court made findings of fact based on allegations about Binyam Mohamed’s treatment that were not challenged by the United States Government.
I turn from that to the questions raised by the noble Baroness, Lady Ramsay, about the Bill’s provisions on intercept and how the evidence to support the conclusions of the Privy Council’s report on intercept would be used in criminal cases. The amendment contained in this Bill to Section 18 of RIPA lifts the prohibition in Section 17 of that Act so that intercept material can also be discussed in a CMP. This is in line both with other, existing statutory CMPs and with our desire to take account of all relevant information in CMPs.
As the noble Baroness knows, the Government are separately conducting an extensive and detailed review in order to assess the benefits, costs and risks of introducing intercept as evidence in criminal proceedings. This work continued under the guidance of the cross-party group of Privy Counsellors that she referred to. It will report in due course. I appreciate—I answered a question on this a few months ago—that we have been using that expression “in due course” for some time. However, I think that it underlines the very great difficulty of coming to a reasonable solution in this matter. I myself have changed my views this way, that way and again, and I know other far more distinguished people than me who have looked at this in much greater detail than I have who have also found it very difficult to come to a final decision. However, the process will continue. I was grateful that the noble Baroness referred to the work being done by the distinguished body of Privy Counsellors that is dealing with that.
The noble Lords, Lord Dubs and Lord Pannick, and other noble Lords, dealt with the whole question of whether it was for the courts to decide between PII or closed material proceedings. We are not convinced that the question of whether there should be a PII claim or a CMP should be left to the courts. It is a very important constitutional point that the Executive in the end have to be the guardian of the United Kingdom’s national security interests. Obviously, the courts will play an essential role in scrutinising the Government’s exercise of these functions. However, we believe that the question of whether to claim PII, and, accordingly, a CMP, should be left to the Home Secretary.
Similarly, the noble Lord, Lord Macdonald, suggested that a CMP should be held only after a full PII exercise, but we believe that it would be costly and illogical to go through a potentially lengthy PII process first. It may be obvious at the beginning, for example, that too much will be excluded. We understand that the Lords Constitution Committee did see the need for full PII; the report says that we can see force in the argument that it will sometimes be otiose to push the PII process to its completion before turning to a CMP.
Lord Pannick
Does the Minister at least accept that a CMP should be a last resort if, and only if, there are no effective means of addressing all relevant factors?
Lord Henley
That is a point that we will consider at much greater detail when the noble Lord puts down his amendments, which I am sure will appear. We will discuss that in Committee and no doubt at later stages. The point is that at the moment I am making our case and want to clear the arguments in detail. That is why I was rather loath to take too many interventions in this winding-up speech. I appreciate that my noble and learned friend took some seven interventions in opening, but on this occasion I am going to resist most of them, because the important point is that we discuss these matters in Committee, when we can deal with them in greater detail. The noble Lord will then be allowed to intervene to his heart’s content.
I see that my time is beginning to run up, and I want to get on. However, I shall say one more thing on this. I will deal with the question on sensitive information in Norwich Pharmacal clauses, which a number of noble Lords—my noble and learned friend, Lord Mackay, and the noble Lords, Lord Pannick and Lord Dubs, for example—all seemed to think was somewhat too wide. I must stress that this is the definition in the Norwich Pharmacal clauses; I appreciate that the noble Baroness also raised the definition of sensitive information for the Intelligence and Security Committee in Schedule 1, but that is obviously a different matter.
The fact is that virtually all material sought by Norwich Pharmacal applicants from the security and intelligence agencies is material the public disclosure of which would damage the public interest in safeguarding national security. Applicants do not seek open-source information or other unclassified material from agencies; they seek information specific to them that would be held by an agency and available only from that agency. If it was information necessarily derived from sensitive sources or from techniques or capabilities from a foreign intelligence department, all or any of that could be damaging to the public interest if disclosed. The approach taken in the clause in the Bill mirrors the protection of such information found, for example, in the Freedom of Information Act.
I turn to the less controversial part of the Bill, Part 1—if I can find the right part of my notes—which deals with oversight. This part had somewhat less coverage than the rest of it, but, after the speech from the noble Lord, Lord Campbell-Savours, and the interventions from the noble Baroness, Lady Smith, I am beginning to understand that it might generate just a bit of controversy and I might have some work to do, unlike my noble and learned friends, as I do that part of the Bill in Committee. I did not want to overlook the important changes that we are making to this and it is right that we should periodically re-examine the way in which we scrutinise that work. Again, I pay tribute to the current members of the Intelligence and Security Committee.
We are grateful to the noble Lord, Lord Butler, and my noble friend Lord Lothian for sharing the benefit of their experience of sitting on that committee. I am also grateful for the views that we heard from the noble Baroness, Lady Manningham-Buller, particularly what she said about trusting the head of the security services far more than she would trust Ministers. I will take that on the chin. I think she was echoing what the noble Lord, Lord Campbell-Savours, said, but she echoed it with approbation.
I recognise the experience that the noble Lord, Lord Campbell-Savours, has, and I am pleased that we will have an interesting time in Committee on that aspect of the Bill. The noble Baroness, Lady Ramsay, was concerned about the membership and thought that there was scope in the Bill for more Members of this House. I do not believe that there is any detail in the Bill about how many there can be, but I think the current rules are that at least one must come from each House, so it would be possible to have eight Peers and one Member of the Commons, or it could be the other way around. It will be for the Committee to decide what the appropriate number should be. That is something that we can discuss.
Lord Campbell-Savours
Prior to us going into Committee, might the Minister find out for what reason it is not to be a parliamentary Select Committee, as against the structure proposed? There must be some explanation.
Lord Henley
Again, my Lords, I was interested in the noble Lord’s suggestion. I do not think that it is necessarily the right path to go down, but that is the sort of point that we need to argue about and try to reach some agreement on in Committee. I am sure that the noble Lord will put down amendments and that we will have the opportunity to discuss them. I look forward to hearing the views of his Front Bench and other Members of this House.
I have more or less used up my time and have answered a mere tithe of the very good points that have been raised. As I said, we are going to have a detailed Committee stage in due course, when we will get to a lot of these detailed points. I look forward to that process, as does my noble and learned friend. Both of us will write a number of letters over the coming weeks that we hope will at least make it easier to deal with these matters. With that, I commend the Bill to the House.