Grand Committee
Arrangement of Business
The Deputy Chairman of Committees (Baroness Gibson of Market Rasen)
My Lords, if there is a Division in the Chamber while we are sitting, this Committee will adjourn as soon as the Division Bells are rung and will resume after 10 minutes.
Civil Aviation Bill
(11 years, 10 months ago)
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Lord Rosser
Lord Rosser
My Lords, the purpose of these amendments is to stop the Bill from apparently removing the Treasury’s oversight on non-executive pay at the Civil Aviation Authority, which was provided for in the 1982 Act that established the CAA. Under the Bill’s proposals, decisions on pay, allowances, pensions or gratuities will be determined solely by the Secretary of State for Transport.
Following recent failures to take action over excessive pay until forced into it by political and public pressure, as with RBS and Network Rail where the Secretary of State for Transport initially denied that she could do anything about the level of bonus payments to top executives, there should not be any weakening of oversight on remuneration payments. At this time of increased and justified public concern about levels of pay and bonuses, it is hardly appropriate for the Government to be seeking to remove a layer of checks and balances on the setting of CAA non-executive board members’ pay.
The CAA non-executive members were paid varying amounts up to some £77,000 in 2010-11. Non-executive board members are not there simply to make up the numbers or to add a veneer of outside independence and challenge. They are there as critical friends to challenge and question the senior executives on both the policies that they are pursuing and the policies that they are not, including accounting and financial policies, and to ensure that appropriate corporate governance arrangements are not only in place but are being properly implemented and applied.
Under the Bill, the CAA non-executive members will also determine the terms and conditions on which the chief executive is to be employed and who should be appointed. Other executive members are to be appointed by the chief executive with the approval of the chair and at least one other non-executive member who also will have to approve the terms and conditions under which other executives are employed. The role and importance of the CAA non-executive members is further enhanced not just by the more influential role that the CAA will have but also by the fact that the Secretary of State and the chief executive must exercise their powers to secure that, as far as practicable, the number of non-executive members exceeds the number of executive members.
So at a time when there is increasing concern about remuneration packages and bonuses; at a time when CAA non-executives will be involved in the major senior executive appointments and their terms and conditions; at the same time as the role of the Civil Aviation Authority is being increased; and at the same time as the importance of non-executives is being increased by there being a requirement in this Bill for the number of non-executives to exceed the number of executive members, the Government decide that this is the appropriate time to remove the oversight that the Treasury has on non-executive pay at the CAA. The Treasury can provide a degree of impartiality over decisions on the remuneration of Department for Transport appointees, as well as having knowledge of what remuneration levels are for non-executive members appointed through other departments of state. The Government’s logic does not add up. I beg to move.
Earl Attlee
My Lords, I am grateful for the explanation given by the noble Lord, Lord Rosser, and I hope that I can clarify the Government’s position on these probing amendments. In the current political environment and with the public interest in these matters, I can quite understand why the noble Lord has tabled them.
There are several reasons why I cannot support all these amendments, to which I will come shortly. By way of background, the changes introduced by the Bill that these amendments seek to overturn complete a series of governance reforms recommended by Sir Joseph Pilling following his 2008 strategic review of the Civil Aviation Authority. Sir Joseph’s conclusion was that the involvement of two government departments in remuneration decisions was unnecessary. He said:
“In evidence to the review the Treasury explained that the CAA was the only regulator it looked at in this way … The statutory requirement for the Treasury to approve the Civil Aviation’s members’ remuneration and pensions is an anomaly. I recommend that the Department for Transport seek to amend the legislation so that the responsibility lies solely with the Secretary of State”.
He also asked the Department for Transport to consider the approach of some other UK regulatory bodies where the board appoints executive directors without ministerial involvement. The previous Government accepted those recommendations and consulted on the proposals reflected in the Bill. The Government agree with Sir Joseph’s conclusions that the oversight of the Treasury is an anomaly that adds no value. The Committee should note that there is no equivalent requirement for any comparable regulatory body, so Clause 96 implements an important aspect of the Pilling report. It would remove Treasury involvement in approving the remuneration of non-executive members. Removing Treasury oversight will also remove unnecessary government duplication; there is no need for two government departments to be concerned with CAA board remuneration. It will also reduce unnecessary delays in the appointment of non-executive members of the CAA.
There is nothing so special and different about the CAA board appointments that they alone of all regulatory appointments require the approval of two government departments. The Secretary of State will continue to be responsible for appointing non-executive directors and determining their remuneration. They are part-time posts that currently pay under £25,000 with some small additions, where applicable, for extra work. I note that the noble Lord, Lord Rosser, suggested that some were paid £75,000. They are not in a CAA pension or bonus scheme. It is therefore quite unnecessary for the Treasury to undertake the administrative burden of checking the decisions of the Secretary of State. I hope that that provides the Committee with the reassurance required and that the noble Lord will consider withdrawing his amendment.
Lord Rosser
Obviously, it is my intention to withdraw the amendment, but before doing so perhaps I may ask the noble Earl whether he said that the posts would receive less than £25,000. Is he saying that that was the case in the financial year 2010-11 for which we appear to have the figures?
Earl Attlee
The non-executive directors are currently paid between £22,000 and £25,000 and are not eligible for pensions or bonuses, although they can receive extra payments for extra days of work. I hope that that helps the noble Lord.
Lord Rosser
I note with interest the Minister’s response. Either the figures that I have are incorrect or an awful lot of extra work is undertaken, but obviously I can look at that. The key part of the Minister’s argument is that no other regulatory bodies have Treasury and appropriate department involvement. The Minister has been clear on that. I shall certainly want to reflect on his response, but I beg leave to withdraw the amendment.
Lord Rosser
“Accounts and audit
(1) Section 15 of the Civil Aviation Act 1982 (accounts and audit) is amended as follows—
(a) in subsection (1), for paragraph (c) substitute—“(c) to send copies of the statement of accounts to the Secretary of State and the Comptroller and Auditor General before the end of the November following the accounting year to which the statement relates.”;(b) in subsection (2), for paragraph (a) substitute—“(a) the National Audit Office shall examine, certify and report on each statement of accounts received under subsection (1) and shall lay copies of the statement of accounts and of its report thereon before each House of Parliament.”(2) In the National Audit Act 1983, Schedule 4 (Nationalised Industries and Other Public Authorities) Part 1, leave out “Civil Aviation Authority.””
Lord Rosser
The amendments in this group provide, first, for a new clause that would give the National Audit Office oversight of the Civil Aviation Authority’s accounts. It would also place on the Civil Aviation Authority a general duty of efficiency in the use of its financial resources. It is not clear why the Government have not already included those provisions in the Bill. There are significant changes in the role of the Civil Aviation Authority under the Bill in relation to aviation security functions transferred from the Department for Transport and the economic regulation of airports. The Civil Aviation Authority is likely to become a more influential and important body as a result.
Other regulatory bodies, including economic regulators which are also industry funded, are subject to National Audit Office oversight. They include Ofgem, Ofwat and Ofcom. The Office of Rail Regulation is also subject to National Audit Office oversight, and the ORR is likewise funded from within the industry. As we know, the Civil Aviation Authority is funded from the aviation industry and also receives a limited amount of money from the taxpayer. It is not, however, subject to National Audit Office oversight, although it is generally recognised that the Comptroller and Auditor-General and his staff at the National Audit Office do a highly effective job.
The activities of the regulators to which I have just referred and which are subject to NAO oversight do not involve significant public funds, but they lead to costs being incurred by the providers of essential or strategic services which are likely to be passed to consumers, which justifies NAO involvement. That is particularly the case where the need for active economic regulation has arisen from the process of privatisation, and it is therefore only right that there should likewise be National Audit Office oversight of the Civil Aviation Authority’s accounts, as provided for in the amendment. The House of Commons Transport Select Committee in its report also called on the Government to explain why the Civil Aviation Authority is apparently unique among industry regulators in being outside the remit of the National Audit Office.
The second amendment gives the Civil Aviation Authority a general duty of efficiency in the use of its financial resources. A number of those giving evidence to the House of Commons Transport Select Committee suggested that the CAA did not always operate in the most efficient way possible. For example, in its written evidence, British Airways stated that no measures to encourage efficiency had been included in the Bill and that it considered that the Civil Aviation Authority had scope to make significant improvements in efficiency in certain areas. It argued that the CAA should have a duty to operate efficiently.
In order to keep costs for airlines and passengers, as well as the taxpayer, as low as possible, it is essential that the CAA adopts efficient ways of working and modern technology where appropriate, as higher costs for airlines arising from CAA charges and any inefficient use of its financial resources have the potential to damage major UK airports’ competitiveness with alternative competing hubs. The Transport Select Committee, having taken evidence, recommended that an explicit efficiency duty for the Civil Aviation Authority should be inserted in the Bill. It is clear that it was unimpressed with arguments that other parts in the Bill already provided that explicit efficiency duty for the CAA.
I hope that the Minister will be able to give a sympathetic and helpful response to the amendments and I beg to move Amendment 67.
Lord Soley
I share the concern expressed by my noble friend Lord Rosser about leaving the CAA out of National Audit Office oversight. I have never understood the argument for that. It is very unusual, if not unique, for such an organisation to be left outside the remit of the NAO, and the case for its inclusion is strong. At the very least, I would like the Government to explain why; I do not understand it. The argument about efficiency follows from that, but the one that worries me most is raised by Amendment 67, which I support. I have not yet heard any argument why the CAA should be outside the remit of the NAO, because almost any other body of this type would be included. I should like an explanation for that.
Lord Trefgarne
My Lords, while the noble Lord, Lord Rosser, makes an interesting case for Amendment 67, I am somewhat neutral on the matter, and look forward to hearing the Minister’s reply. I must say that I am a good deal less enthusiastic about Amendment 68; general, somewhat ill defined duties such as those contained in that amendment are best left out of legislation, and I hope that the noble Lord will not press it.
Earl Attlee
My Lords, I fully agree with noble Lords on the need for the CAA to be efficient in carrying out its functions. Identical amendments to the ones now tabled by the noble Lord, Lord Rosser, were also tabled in the Commons both in Committee and on Report, and were defeated in Divisions.
I shall speak first to Amendment 67 on introducing a role for the National Audit Office. In Commons Committee the Minister announced a strengthening, outside the Bill, of the scrutiny to which the CAA is subject. Having considered this issue further myself, I remain unconvinced that there are compelling reasons to believe that NAO scrutiny of the CAA would deliver a different result from the current and new mechanisms by which the CAA’s functions are already audited and scrutinised. Moreover, the CAA is overwhelmingly funded by the aviation industry. Parliament recognised this in removing the NAO’s role from the CAA and certain other bodies in 1984. The issue was considered by Sir Joseph Pilling, in his 2008 strategic review of the CAA, who concluded that there was no need for NAO involvement. The recommendation was subsequently accepted by Ministers under the previous Government, and I have yet to be convinced that they were wrong.
It is true that other industry-funded regulators come under the scrutiny of the NAO but, unlike the CAA, they are generally either non-ministerial government departments or rely on government funding for a significant proportion of their income. The CAA’s situation is very different from regulators such as the Office of Rail Regulation. Although the ORR is funded by industry licences, it is distinct because of the high level of public funding that the rail industry receives.
I reiterate the strength of the scrutiny mechanisms already in place with the CAA. As was said on Report, the Secretary of State appoints the CAA’s external auditors. She presents the CAA’s accounts to Parliament by placing the annual report statement in the Library of the House of Commons; she is involved in the development of the corporate plan; with the Treasury’s consent, she approves the CAA’s borrowing and sets its required rate on return on capital; and she will continue to approve the remuneration of the chair and non-executive members of the CAA board. In addition, the CAA consults on its charges and fees. Clause 100 makes such consultation an explicit requirement. I therefore currently see no reasons why the NAO should audit the CAA, and ask the noble Lord to withdraw that amendment.
On Amendment 68, regarding efficiency, in practice the CAA is already subject to conditions and obligations that ensure that it is efficient. As announced by the Minister in the Commons, from 2013 onwards the Government will include in their annual accounts direction a requirement for the CAA to include an efficiency statement in its annual report. This would be subject to validation by the CAA’s external auditors, and the Secretary of State for Transport will approve the terms of reference for that work. The efficiency statement is likely to include a summary of value-for-money audits and post-project completion reviews, developments in processes and technology and a report on the remuneration and deployment of staff. The external auditors’ published statement in the annual report would contain a summary of their findings on the efficiency statement in the interests of transparency. Industry representatives on the CAA’s finance advisory group would be given an opportunity to discuss the statement before and after the external auditors had completed their activity. This establishes an annual process of scrutiny, with transparency to the industry and to Parliament, to which the Secretary of State will continue to present the CAA’s accounts.
During the past nine years, the CAA has reduced its workforce by 15%. It employed 1,057 full-time equivalents in 2003 and had reduced that number to 870 in March 2012. The CAA’s strategic plan contains the objective:
“To ensure that the CAA is an efficient and effective organisation which meets Better Regulation principles and gives value for money”.
Clause 1(3) and (4) and Clauses 83 and 84 already build in proportionality safeguards. The CAA is also required to follow the good regulation principles in the Legislative and Regulatory Reform Act 2006 and the statutory regulator’s compliance code requires that regulators,
“should be accountable for the efficiency and effectiveness of their activities, while remaining independent in the decisions they take”.
I am aware that this is very important to airlines represented by the British Air Transport Association.
I will continue to reflect on the matter and consider what further reassurances can be given to your Lordships on Report. In light of that, I hope that, at the appropriate point, the noble Lord, Lord Rosser, will consider withdrawing his amendment.
Lord Soley
Amendment 67 is still puzzling me, because the Minister’s argument seems to be that, because the airlines fund the CAA so heavily, there is a relatively small contribution from the taxpayer and, for that reason, the NAO need not be involved. I do not have the figures with me, but I do not think that the contribution from the taxpayer is so small as to be really insignificant. If we are saying that a public body such as this can be excluded from the NAO audit simply because it receives a fairly small amount of public money, that logic could be extended to almost any other public body of this type.
To use the Minister’s argument, if in time the railway industry was able to pay rather more for the Office of Rail Regulation, as one would hope, one would no longer need to have that looked at by the National Audit Office. The Minister seems to saying that this is purely a ministerial discretion issue; that is, “We will simply look at it. If the amount of taxpayers’ money is small enough, we won’t bother to put it under the NAO”—I do not use “won’t bother” in a dismissive sense; I mean that the Government will not bother to have the NAO look at it. However, there will come a point when we want the NAO to look it. Can the Government indicate what the trigger would be? Are we talking about £1 million or £5 million? What amount would suddenly trigger the Government saying that the CAA would be put under the National Audit Office? Alternatively, to use my example of the Office of Rail Regulation, if the railway industry suddenly started paying for most of it, would we say, “Well, they’ve reached this point. Therefore, we will no longer put it under the National Audit Office.”? I am not quite clear about what the policy is.
Earl Attlee
My Lords, noble Lords have advanced various arguments as to why the CAA should be audited by the NAO, but the Committee has not convinced me that the CAA would become any more efficient if we went down that route. If noble Lords want to make any progress with their argument, they will have to convince me that it would give a better outcome.
The noble Lord’s implied question was how much of the CAA’s budget comes from public funds. It is only 6%.
Lord Soley
Six per cent of how much? Six per cent of a large amount can be a large amount, too.
Earl Attlee
My Lords, I am afraid that I will have to write to the noble Lord on the CAA’s budget. As ever, I will give Members of the Committee a comprehensive answer to any of their more technical questions.
Lord Rosser
In writing that letter, can the Minister also give the relevant comparable figures for the other regulatory bodies to which we have referred—Ofgem, Ofwat, Ofcom and the ORR—and which are also funded in part by their industries? If the Minister’s argument on this issue is that the figure for the Civil Aviation Authority is particularly low in either percentage or actual terms when compared with other regulators, which are also partly funded from within their own industries, perhaps in sending that letter he could provide the comparable figures so that we can have a look at them.
I would comment only that while the Minister says that it is up to us to show the case for why a current arrangement should continue, there is to be a changed Civil Aviation Authority under the Bill. We are not talking about that authority as it is now but about one with enhanced powers and influence. I would have thought that the onus lay with the Minister to show us why the arrangements for the CAA should be different from those for other regulators, rather than the context in which he put it: of seeking to say that we have to make the case. It is the Minister who has failed to make the case, frankly, but I will leave it until we receive the letter from him with the information that he has said he will provide.
I am still not clear which clauses the Minister is saying provide the general duty of efficiency. I see a reference in Clause 1(3), to which I think the Minister referred, to the CAA having,
“regard to … the need to promote economy and efficiency on the part of each holder of a licence”,
for example, but that does not relate to the CAA’s efficiency. I can find references, which I think the Minister used, to activities being,
“transparent, accountable, proportionate and consistent”,
but those do not necessarily refer to being efficient or efficiency so I do not know what the noble Earl’s argument is. Which clauses is he saying cover the general duty of efficiency? My understanding is that this is not some unique clause that we are proposing to put in, as one can find examples of it applying elsewhere. Once again, why is the Minister saying that it should not apply to the CAA when, from what I have heard from him and from my understanding of the Bill, I cannot see such a clear reference as he can to a general duty of efficiency in any other clauses at present? I wonder if he can assist with that.
Earl Attlee
On Amendment 68, the noble Lord’s points are well made. I said that I will continue to reflect on the matter and consider what further reassurances can be given at Report. My reason for saying that is that the noble Lord has put his point very well.
Lord Rosser
I am grateful to the Minister. I heard him say that the first time round, but I am grateful to him for having reconfirmed that he is looking at this matter. I appreciate that he has not given any commitments. While I would not want to suggest that when the noble Earl says he is looking at a matter he is not doing it seriously, if I say that he is looking at it seriously I hope he does not take that in the wrong spirit and infer that I think he sometimes does not. However, in view of what the noble Earl has said, I beg leave to withdraw the amendment.
Lord Davies of Oldham
“Duty to promote innovation
In carrying out its functions, the CAA must, where possible and appropriate, have regard to the need to promote innovation in the civil aviation industry.”
Lord Davies of Oldham
My Lords, this is a probing amendment with a proposed new clause because we could not think where else to put it in the Bill. It raises a very important topic, to which I hope the Minister will respond in his customary constructive fashion by assuring the Committee that the Government have thought through this issue and, in so far as the Bill can assist in tackling it, are already doing so—unless by some remarkable occurrence, and in the unlikely expectation, the Minister accepts my proposed new clause.
We have proposed this new clause in Amendment 69A in order to probe the Government and to have a debate about one of the most significant challenges facing the aviation industry in the future and the need for the CAA to play its part. It is clear that the whole concept of the Bill is to establish a new position for the CAA and to update the provisions governing it, but one of the great challenges for the aviation industry is obvious, and that is that the British Government have subscribed to very significant and challenging carbon targets for the years leading up to 2050. We believe that aviation emissions must be included in these targets. Aviation emissions are already subject to carbon caps as a result of being included in the EU emissions trading directive, but I want to broaden the debate to consider the obligations of the industry against the whole background of carbon emissions.
In order to reduce emissions in the industry and to serve the needs of businesses and members of the public who wish to fly it is clear that there needs to be innovation in the construction of aircraft, so that we can meet what we all appreciate is a very significant demand for air travel, which no Member of the Committee expects to reduce significantly in the future. We all know the hopes that are expressed about developments such as high-speed rail—that they will lead to a reduction in short-haul flying—but that may not do much more than mitigate the increase that is likely to occur as people, in due course, want to spend their income on travel.
As for the industry, even if high-speed rail plays a part in replacing short-haul flights, nothing can take the place of long and medium-range flights. Only aircraft can provide that kind of travel in the timescale needed. We are all aware that the vast majority of vessels that carry passengers do so without regard to time: they are predominately cruise ships used for leisure, so the time constraint is not so acute. It must be several decades since the last passenger went on a vessel over a long distance to conduct business, except for those exceptional people who will never fly. The way to get about over long distances, clearly, is by air and not by sea.
Of course, the aviation industry has a major future. Another great innovation which I am sure others will bring to the Minister’s attention, if I do not, is the increase in global communications, the sophistication of conference facilities and so on. It leads to the potential obviation of people having to travel for business if they can conduct it just as well through effective long-range communication. I have to say that I participated in one of the first such ventures, which consisted of a link between the United Kingdom, Japan and the United States. Whenever Japan could hear the United States it could not hear Britain; and whenever Britain could hear Japan it could not hear the United States. The United States did not succeed in hearing anybody. It was a difficult exercise but I am talking about several decades ago. We all know how sophisticated human communication can be now. One dimension of the financial anxieties that we all have is the extraordinary speed within which very complex, staggeringly high-value financial communications are effected in fractions of a second. But conferencing of that kind will always have its limitations and people will still need to travel for face-to-face meetings.
There is a challenge to the industry. If the demand is there and the industry is the only way of meeting that demand, it has to have severe targets to reduce carbon emissions, which must mean that new aircraft engine designs and fuels will play an increasingly important part. This might seem a long way from the CAA but it sits on the European Aviation Safety Agency and has a role to play in implementing UK policy on the performance of aircraft. I would not decry the innovations that are already being introduced. Thomsons Airways, for example, operated passenger flights using a B757 aircraft that was filled with a 50% blend of EASA-specification bio-derived jet fuel. It went from Birmingham to Lanzarotte in the Canary Isles and was satisfactory. The bio component was derived from waste cooking oil. Owing to differences in the manufacture and supply process of these fuels compared with normal refining production, care was required to ensure that the fuel delivered to the aircraft was traceable and fit for use. That was ensured in this trial. Further use of biofuel is planned by this airline as wider availability of bio-derived jet fuel permits. That flight was overseen by the CAA’s flight operations inspectorate.
Biofuels are only one option. There are also likely to be developments in the use of fuel cells and hybrid electric engines. The motorcar may have blazed an interesting trail—a reduced carbon trail, I hasten to add. The car industry has done that and aircraft engines may follow. On this important issue of the development of aircraft engines, I want the Minister to say that the Bill will ensure that the CAA will play its full role in innovation. We know the great emphasis that has been placed on quiet aircraft and are aware that heavier and bigger aircraft are quieter than lighter and smaller aircraft were in the past. This is an issue beyond quietness; it is about the whole future of the development of carbon emissions.
The CAA is also the economic regulator of NATS. It has already been proven that significant improvements can be made by air traffic control to increase the efficiency of the aviation sector. Innovations in technology can allow much more efficient flight paths to be taken and other improvements such as continuous rather than stepped descents. If we can use our airspace more intelligently through technological developments so that aircraft have continuous descent approaches, therefore using a much smoother glide path and much less fuel than with the traditional stepped approach, that will be of great benefit in reducing aircraft emissions. NATS has its role to play as well.
The Minister was kind enough, before we began the Bill, to give us the opportunity to meet several informed individuals, specialists, to tell us what possibilities exist in the area. I just want the Minister to confirm that the Bill guarantees that the CAA and NATS can play their full part in technological improvements so that we can still meet the demand for aviation and ensure that the industry has a thriving future while meeting the necessary carbon targets which the Minister has embraced. I beg to move.
Lord Rotherwick
I am rather seduced by the amendment of the noble Lord, Lord Davies, which produces a duty to promote innovation. I very much welcome the brief from the director of airspace policy, Mark Swan, on innovation, as referred to by the noble Lord, Lord Davies, on continuous climb, and so on. Of course, that falls far short of innovation in general and business aviation. You have only to compare the UK to the US to see that we are lagging far behind. We are only a small aviation sector in general and business aviation compared to America and we need a champion to push such things.
For example, we have very few global positioning satellite approaches. They rely on a satellite, not ground-based, last century technical devices that cost a lot to administer. The answer that we are given at the moment is that it is up to the airports to ask for them, but the truth is that it is very expensive to implement. America has a GPS approach for every airport. They are wonderful. You can have dog legs on them, which means that you can fly around communities, lowering the noise, and do all sorts of things. You can have an instrument approach from both ends of your airport, not just the published plate for an NDB on one end.
More than that, the technology is now available to have WAAS approaches—wide area augmentation systems. These are ground-based devices—I believe that there are two or three in America—that up the accuracy of the GPS signal and allow the approach to be made to the accuracy that we are used to with an ILS—an instrument landing system. Again, it does away with expensive ground-based technology. They are very important. Imagine when you fly into a third world country and rely on maintenance by that country of its instrument landing systems, you are sitting in your seat wondering whether that third world country can carry that out. There is no worry if you are using a satellite-based system run by the US.
I am seduced by the duty to promote innovation but at the same time, if this is implemented or written into the Bill, it should come with a caution: “with due regard to the cost to general and business aviation”. The example is the mode S transponder that was brought in recently, for which the lower end of the industry had great difficulty grasping the need. I believe that it was necessary; there were good examples like being able to fly abroad or into certain air spaces. The industry is now beginning to grasp that and take it on. The transponder was needed but was badly sold to the industry, and it cost each and every plane owner quite a lot of money to implement the new equipment. Once again, I thank the noble Lord for his amendment; I think it is a good one.
Lord Soley
I do not wish to delay the Committee for very long because my noble friend Lord Davies and the noble Lord, Lord Rotherwick, have covered a number of the points that I would otherwise have made.
We sometimes think, as the noble Lord has indicated, that this must always involve a cost of some sort to the airlines or other people on the sites. In fact, in the car industry there are some recent examples that might benefit the aviation industry. For example, we have a lower car tax rate, and indeed lower insurance policies, for cars that are fuel-efficient. That policy was brought in by the previous Government but is fully supported by this one. I am not sure that we could not have a policy, or that the CAA could not at least encourage one, where our modern, quieter and more fuel-efficient aircraft could have a different landing charge. Maybe that can already be done, I am not sure.
There are other examples of that type such as the ground operations that are carried out. A number of airports have now got around to doing things like bringing in more environmentally friendly ground operations generally, particularly regarding vehicles. They were a bit slow on the uptake but now they are doing that quite fast. There ought to be awareness of encouraging that—possibly even financially, as I have indicated. I am not talking about government subsidy per se but a recognition that there may be a benefit to bringing in a more efficient system. The examples that the noble Lord, Lord Rotherwick, has just given of being able to fly around the community might be enormously beneficial.
We ought to be quite creative in trying to find ways of encouraging the people who are operating from an airport to carry out their operations in a more environmentally friendly way. That is possible and we ought to look creatively not just at methods that might increase costs but at methods that might also decrease them for some of the operators.
Lord Trefgarne
My Lords, being 110 years old, naturally I am resistant to innovation of all kinds, although I hope not in all branches of aviation. None the less, one needs to take care with imposing duties of this kind upon the CAA in this particular area. For example, if it were to be pressed to incorporate a new kind of material in an engine, perhaps to make it quieter, the cost of certifying a new innovation of that kind can be substantial. My noble friend Lord Rotherwick refers to the desirability of introducing GPS approaches in more airports. One has to remember that GPS systems are outside the control of the CAA, the operators and NATS, and in the past have been subject to interference from hostile agencies, which is much to be regretted. I remember an occasion some years ago when the GPS system in the UK collapsed for a couple of days because there was some technical difficulty about which the CAA and NATS knew nothing.
One needs to take a little care about these things. The ground approach facilities, for example, to which my noble friend referred, are under the maintenance and control of the airport authority and therefore, you may say, more reliable, at least when the shortcomings are more readily known. That said, I do not want to stand in the way of these worthwhile innovations, and the advantages of GPS approaches to which my noble friend referred are very real and important, but one needs to take care. The CAA has taken a careful—if that is the right word—approach to the approval of GPS systems. That was right. It is being slowly convinced of their merit, which is right, too, but it did not jump in their direction as hastily as perhaps some others did. I am not standing in the way of innovation, but I ask the Minister to explain how the costs of all this will be met. Some of them may fall on the operators—to their advantage, no doubt, so that is a good thing—but we should take a little care.
Earl Attlee
My Lords, I am grateful to the noble Lord, Lord Davies of Oldham, for introducing this interesting, probing amendment, because it gives me the opportunity to say something about how innovative the aviation sector in this country already is and the CAA’s role as the regulator. My noble friend Lord Rotherwick spoke about innovation in navigational aids. I look forward to debating his Amendment 73, which will deal with these issues, but his comments were valuable nevertheless. He indirectly illustrated why the CAA should concentrate on regulation.
My view is that market forces should be allowed to drive innovation in industry and the regulator should be responsive to it. This is how things have worked so far between the aviation sector and the CAA. Indeed, just how innovative our aviation sector is is a measure of how well this arrangement has worked.
Let us consider one aspect of the aviation sector, the aerospace industry. Our aerospace industry is the world’s largest outside the USA, with a 17% share of the global market. Its annual turnover is more than £20 billion, and it directly employs more than 100,000 people, supporting a total of 230,000 jobs across the UK economy. Its workforce is highly skilled: 36% of its employees have university degrees or equivalent.
The aviation travel industry is equally innovative. In my opening speech at Second Reading, I paid tribute to this fact, saying:
“In 2010 … UK airports served nearly 400 international destinations. That level of activity is possible because over the past 30 years the aviation industry has changed to meet the needs of the customer. The emergence of low-cost carriers is one example of how the industry has innovated and diversified. There has also been an increase in the number of people travelling by air in this country, from 59 million passengers in 1982 to 211 million in 2010”.—[Official Report, 13/6/12; col. 1364.]
The CAA has its own international consultancy, Civil Aviation Authority International, or CAAi, which is a wholly owned subsidiary of the CAA. It is a leading, globally recognised aviation consultancy company that delivers and promotes best practice in aviation governance and education. CAAi provides technical advisory services across a range of aviation-related activities, environmental consulting, professional training, aviation examination services and certification against internationally recognised quality management standards. CAAi’s work contributes to enhancing safety standards worldwide.
The CAA is also quick to respond to innovation in the aviation industry. I have come across two examples in the past few days. The noble Lord, Lord Sugar, has raised with me the issue of PDAs in the cockpit. The CAA is assisting many UK commercial air transport operators to gain approval for the use of electronic flight bags. An electronic flight bag approval will allow an operator to replace many of its cockpit paper-based processes with an electronic solution such as a laptop or tablet device or with an aircraft manufacturer’s own certificated system. The CAA is working with EASA and ICAO to standardise and simplify the requirements for operational approval of electronic flight bags.
The second example is the CAA’s work on its future airspace strategy, alluded to by the noble Lord, Lord Davies of Oldham. As the noble Lord reminded the Committee, I offered some aviation briefing sessions to Peers shortly before Second Reading. As part of those, the CAA’s Director of Airspace Policy, Mark Swan, gave a presentation on its future airspace strategy. Through the strategy the CAA is modernising how we use our airspace in this country with the aim of achieving a,
“safe, efficient airspace, that has the capacity to meet reasonable demand, balances the needs of all users and mitigates the impact of aviation on the environment”.
Mark Swan explained that this aim depends on the ability to take advantage of technological developments. For example, new communications, navigation and surveillance improve situational awareness of users and controllers; increased navigational accuracy enables closer-spaced routes; and the amount of noise experienced by communities will be reduced as aircraft fly their routes more accurately and consistently. Operators will be able to free route in the upper airspace along the most fuel-efficient track. This is important. The noble Lord, Lord Davies, touched on emissions and the need to tackle them with technology and innovation. The future airspace strategy is an example of how the CAA can facilitate innovation in the civil aviation industry without the need for a new duty.
The noble Lord, Lord Soley, spoke previously about using advanced biofuels in the aviation sector, as did the noble Lord, Lord Davies, today. Today the noble Lord, Lord Soley, talked about quieter aircraft. He will recall that the quota system of regulating noise at Heathrow airport strongly encourages quieter aircraft. Indeed, under the quota system some aircraft cannot fly at all at night. While there are some obvious barriers, the Government believe that sustainable biofuels have a role to play in reducing carbon emissions from transport, particularly in sectors where there are limited alternatives to fossil fuels, such as aviation. The Committee on Climate Change has carried out studies on the potential for biofuels to reduce emissions from UK aviation in the long term. Its latest estimate is that biofuels could supply 10% of jet fuel demand by 2050, suggesting the impact that future innovation might have.
I said that it is my view that market forces, rather than regulators, drive innovation. I believe that the examples I have provided together show that the industry and the CAA have got the balance right.
The Countess of Mar
Does the noble Earl agree that in some cases market forces can have a derogatory effect on the industry? For example, it can lead to cutting corners. I think particularly of my own interest, the cutting of corners in reporting incidents on aeroplanes. Because an aeroplane has to be grounded, it means time out of action and competition within the airline industry is so great that it leads to reluctance on the part of employees to report incidents when they should. This leads to a backwards step as far as innovation is concerned, because, if they did report these things, maybe innovation would lead to improvements in facilities. I hope that the noble Earl sees what I mean.
Earl Attlee
I entirely agree with the noble Countess that market forces can have an undesirable effect. That is why we need a highly skilled and competent regulator, such as the CAA, to ensure that those undesirable effects of market forces are eliminated as far as possible.
I would like to quote from the Government publication Principles For Economic Regulation:
“The Government will not seek to add objectives, responsibilities or duties to regulators’ remits without detailed consideration of the impact of the addition on the overall framework, and consideration of cross-sector impacts and even then only when it is clear that the addition is the optimal way to achieve the outcome sought”.
I am not convinced that the addition of an innovation duty is,
“the optimal way to achieve the outcome sought”.
For the reasons I have identified, I believe that we are already in a good place with regard to innovation in the aviation industry. There is a risk that giving the CAA an innovation duty would oblige the CAA to meddle in the market and may even restrict the way in which the aviation industry would be able to innovate. This has been an interesting short debate. I can well understand why the noble Lord, Lord Davies of Oldham, has tabled his amendment, but I hope that he will withdraw it at the appropriate point.
Lord Davies of Oldham
There is no appropriate time like the present, so I will withdraw the amendment after I have given a few words of thanks, first, to those Members of the Committee who support the clear need for innovation. I also think that we needed reassurance from the Minister that the Bill provides sufficient powers and incentives to ensure that the limited part that the CAA can play in its role with regard to the industry is played as fully as possible against the very challenging objectives that we all need to meet through change, particularly those in aircraft engine design. However, I was extremely grateful to the noble Lord, Lord Rotherwick, for indicating that there are other aspects of technology that could be of great significance to the industry, to which the Minister also paid due regard.
I accept entirely what my noble friend Lord Soley said about government incentives for the development of new technologies in motor cars, and the licence system is a very effective weapon in those terms. But, as I understand it, neither the vehicles that airports use for towing things around nor their emissions are in any way subject to licence. Therefore, no incentive can be placed on the industry as regards those traction engines for a fresh, new design through the way in which they are licensed. I hope that the Minister has taken on board that we need some imaginative strategies. In fact, he has taken it on board because he is going to tell me about it.
Earl Attlee
My Lords, the noble Lord has suggested that ground vehicles at airports are not subject to regulations. I expect that I will be writing to him to point out that even non-road vehicles have limits on their emissions. There are complex and quite tough regulations to ensure that any ground vehicle reduces its emissions as much as possible. Even a vehicle that is not an on-road vehicle is still subject to regulations on emissions. I think that my letter will go into that.
Lord Davies of Oldham
I am grateful for that reassurance but it raises an obvious question. Some airports have taken this issue very seriously already but others have not. I therefore ask the Minister not to tell me how these machines can be improved but rather what is the incentive, compulsion or challenge given to those airports which are not improving to ensure that they do so in the future. That is the nub of this issue with regard to emissions on the ground and at airports.
Without any doubt, the biggest challenge is to the aircraft manufacturing industry. As the Minister indicated in his response, we are not negligible players in these terms and already have had one or two interesting innovations in which we have shown ourselves to be world beating. With this amendment, I was merely seeking to get reassurance from the Minister that he took these issues seriously and that the Bill empowers people sufficiently to give their spur to this development in any way that they can, while always bearing in mind the point made by the noble Lord, Lord Trefgarne, that all new technology is more expensive than that which it replaces if it is going to do a more challenging job unless we have real breakthroughs in terms of design, which from time to time in certain areas occur. In the past, the aviation industry has not failed us in that respect, but the challenges ahead are obviously very intensive. With the Minister’s largely constructive reply, I am happy to withdraw the amendment, as this is a timely moment to do so.
Lord Rotherwick
Lord Rotherwick
My Lords, I remind the Committee of my past declared interests. Clause 102 amends the Regulatory Enforcement and Sanctions Act 2008. It amends Schedule 5 to that Act to add the CAA to the list of 27 designated regulators, and amends Schedule 7 to that same Act to add to the list of 45 regulatory provisions contained therein a 46th line regarding Sections 7, 61, 71, 71A and 86 of the Civil Aviation Act 1982. The effect of this is to bring each of those provisions of the Civil Aviation Act within the scope of the order-making powers of the Secretary of State, and the Welsh Ministers in Wales, under Section 36 of RESA. These are subordinated legislation-making powers. It must be assumed that the Government would not take the time of Parliament to vest powers in the Secretary of State that he had no immediate intention of exercising. However, the Bill gives us no clues as to what the effect of these powers may be, so what is it that lurks behind these powers?
Perhaps the Government’s Explanatory Notes to the Bill will lighten the darkness. Yet they do not. In respect of Clause 102, the notes merely say:
“Clause 102 amends Part 3 of RESA 2008 … to add the CAA to the list of designated regulators in Schedule 5 to that Act. This enables an order to be made so as to give the CAA access to a range of civil sanctions provided for by Part 3 of RESA 2008, which could be used in relation to the enforcement of breaches of civil aviation law. These sanctions would sit alongside the existing sanctions available to the CAA and would provide it with an alternative to relying on criminal prosecutions”.
All we have learnt so far is that these would be new sanctions and would sit alongside existing sanctions. If we infer that existing sanctions are inadequate, we must therefore assume that once these new sanctions are in place they will be used to secure some policy objective, presumably an improvement in compliance that cannot be secured through existing powers.
The exercise of new powers will clearly have an impact on those on whom they are exercised and will, presumably, bring a benefit that will exceed the cost of exercising those new powers. Let us look to the Government’s analysis of costs and benefits for this policy, identified in the impact assessment as “Policy Option 2b”. No luck there; it tells us that no monetised benefits have been quantified because they would flow from the implementation of the regulations, so the cost-benefit analysis will be done in support of the regulations. As to non-monetised benefits, page 88 of the document says that the main one,
“is the potential for increased compliance with certain areas of aviation regulation and therefore better protection of passengers and a more level playing field for businesses”.
It says nothing about general and business aviation, and one wonders what the implication will be on that. So we remain in the dark about what these powers are intended to achieve, the market or compliance failings that they are intended to address, the cost of introducing and exercising them and the impact that they might have on those to whom they will be applied. I refer explicitly to the GBA.
Again, we are left unenlightened. It is all very well for the cost-benefit analysis to hide behind the excuse that all will be made clear when regulations are brought forward—I am sure it will all be made clear when the person finds themselves in the dock, but there we are—but that is not good enough. If the powers are to be taken, there must be a reason; and if there is a reason, it should be made clear now so that Parliament can decide whether the powers are needed. No doubt others will scrutinise the impact of the extensions of the powers to include Sections 7, 71, 71A and 86 of the Civil Aviation Act 1982.
My concern, and that of the GBA sector, is about the effect on Section 61 of the Civil Aviation Act. Section 61 is a headline provision covering the Air Navigation Order, which is a huge and complex document of some 500 pages, detailing the thousands of legal requirements for technical and operational matters such as aircraft airworthiness, equipment to be carried, pilot and aircraft licensing, rules of the air and so on. When the Secretary of State exercises his powers under this clause, he will empower the CAA to issue fixed-penalty notices for the alleged breach of the ANO, in the same way as the DVLA does for alleged vehicle offences.
At present UK aviation, especially the GBA sector, operates in what is described as an open reporting safety culture. The vast majority of pilots, aircraft operators and engineers take their legal responsibilities for flight safety and airworthiness very seriously. For example, it is not uncommon to hear pilots telephoning the traffic control tower of an airport to confess and apologise where they believe they may have inadvertently infringed controlled airspace. We have a successful scheme for reporting a near miss, and another for voluntarily reporting general safety occurrences. This valuable safety culture might well be undone under the proposed regime, where it will be possible for the CAA to automatically issue fixed penalties in such cases, where at present it uses its powers of prosecution selectively to achieve a strategic safety outcome.
If the penalties were to be imposed as an administrative commonplace, without a full legal process, that would fundamentally change the relationship between the CAA and pilots, operators and service providers such as engineers, who would fear bias and the use of penalties as a revenue-raising exercise. Moreover, the introduction of fixed-penalty procedures, as against the present prosecution powers, would shift the burden of proof. The recipient of an unexpected penalty notice would be faced with the alternative of paying up, presumably at a reduced charge, which may be provided under Clause 102 if the CAA follows the parking-ticket process, or of challenging the ticket in the courts. By including Section 61 in Clause 102 of the Bill, we run the risk that our open reporting culture might be fatally damaged. This would work against the interests of increased flight safety.
The CAA has adequate penalties and powers of prosecution at its disposal, which it uses wisely and sparingly. No case has been made to the GBA community, and no consultation undertaken, where the evidence to back this change has been laid out. Indeed, we have not heard that the CAA has asked for these powers. Perhaps the Minister could say something about that.
Lord Trefgarne
My Lords, I have a good deal of sympathy for the amendment of my noble friend Lord Rotherwick. Might the Minister be a little clearer on what the process will be for the fixed penalty notices? I am ashamed to tell your Lordships that I am a veteran of the fixed penalty notice system as applied by Transport for London in relation to the congestion charge. I have on a couple of occasions had to appeal against an alleged violation only for my appeals to be dismissed instantly—no doubt, rightly. I discovered that if you insist on appealing and taking your lawyer with you to the tribunal in relation to your Transport for London penalty notice for alleged non-payment of the congestion charge, you are 90% likely to get off, but if you do not take your lawyer with you, you are not. It struck me as a rather shocking revelation. I do not suggest that there is anything wrong in the process, but amateurs who go on their own to appeal or simply send in a letter of appeal to Transport for London are likely to be dismissed out of hand. However, if you turn up on the day with your lawyer, you are likely to have your appeal allowed. I hope that there will be no such vagaries in the system to be employed by the Civil Aviation Authority. Who will hear appeals from fixed penalty notices issued by the Civil Aviation Authority? What will be the expertise of those who hear them? Can I be assured that the system will be a lot better than Transport for London’s?
Lord Davies of Oldham
My Lords, I have only one brief comment to make, one which I never thought I would make in Parliament or elsewhere. Oh the joys of Opposition for the Minister to reply.
Earl Attlee
My Lords, before turning to the detail of the points made, I must emphasise the importance of the clause that the amendment would alter. My noble friend Lord Trefgarne mentioned the congestion charge. I have been caught by it but I never dared to appeal. I just paid up. That might be because I knew that I was wrong.
The noble Lord talked about the higher success rate if you bring your lawyer. It may be that the appellant brings his lawyer because he is certain that he is right, so not surprisingly he wins his case. The noble Lord also asked about the appeal process. If someone who has been issued a fixed penalty notice is unhappy about that, he can take it to court in exactly the same way as a motorist can take a matter to court—like the McCaffrey case.
Lord Trefgarne
I confess that my memory is perhaps slightly hazy but my recollection is that one cannot take Transport for London to court. If one loses the appeal, that is that.
Earl Attlee
My Lords, the offender will be able to take the matter to an independent appeal tribunal. I will write to the noble Lord with full details of how that system will work.
Clause 102 amends Part 3 of the Regulatory Enforcement and Sanctions Act 2008 to enable the CAA to make use of civil sanctions where it currently relies almost exclusively on criminal prosecutions, which are not always appropriate for technical infringements. The Bill will enable the Secretary of State by order to give the CAA access to a range of civil sanctions provided under Part 3 of the 2008 Act as an alternative to prosecution. We believe that criminal sanctions are disproportionate in relation to some offences, such as minor breaches or offences of an administrative nature.
I do not agree with my noble friend Lord Rotherwick when he suggests that the CAA will be encouraged to issue fixed penalties. The fines will go to the Consolidated Fund, as accepted by my noble friend. I think that he goes a little too far when he suggests that the CAA would abuse its powers and I totally refute the suggestion that these are revenue-raising powers. I was asked for examples. When the commander of an aircraft fails to produce licences for his or her flight crew in a reasonable time when requested to do so by an authorised person, he or she is guilty of a criminal offence and liable to summary conviction and a fine not exceeding level 3 on a standard scale. Should an offender fail to comply with such rules, a fine or civil penalty for breach may be a more appropriate enforcement action than a criminal prosecution, thus ensuring better compliance. I should point out that offenders will not find themselves in the dock because it is a civil penalty. I can assure my noble friends that secondary legislation will be required to grant the CAA these powers. It will be subject to full consultation and impact assessment. Any order will be subject to the affirmative resolution procedure in Parliament.
My noble friend Lord Rotherwick asked about the expected scope of compliance changes. The appropriate time to consider costs and benefits of the power is at secondary legislation stage. It would not be good use of public resources to calculate extensive options for what may not be the impact until Parliament has agreed the powers. In particular, Clause 102 inserts certain provisions of the Civil Aviation Act 1982 to the list of enactments in Schedule 7 to the 2008 Act. That enables the Secretary of State by order to give the CAA access to a range of civil sanctions in relation to offences contained in secondary legislation made under the 1982 Act. The provisions of that Act include Section 61 which enables the Secretary of State to make provision for offences to secure compliance with Air Navigation Orders. Such orders are key to the regulation of air navigation in the UK. I am sure that all noble Lords in the Committee would agree with that. They set wide-ranging rules that the CAA largely polices.
Turning to the amendment, as described by my noble friend, it would exclude Section 61 from Schedule 7 to the 2008 Act and thereby deprive the CAA of the use of a range of civil sanctions in relation to offences contained in the Air Navigation Order. This would dilute the intended purpose of Clause 102.
My noble friend Lord Rotherwick asked what the provisions will achieve. The inclusion of Section 61 of the 1982 Act in Schedule 7 to the 2008 Act is important, as it could give the CAA flexibility to use civil sanctions to enforce the provisions of the Air Navigation Order. That would be done only in appropriate cases where the application of criminal penalties was not a proportionate response to the offence which had been committed, particularly in the case of minor administrative breaches. The CAA will not automatically impose fixed monetary policies for breaches of the Air Navigation Order; the CAA will have available a range of civil sanctions under RESA, including fixed monetary penalties, variable monetary penalties, compliance notice and acceptance of enforcement undertakings for imposition. The CAA must publish guidance on the use of such sanctions under a duty to act proportionately under the Legislative and Regulatory Reform Act 2006.
In evidence to the Public Bill Committee on the Civil Aviation Bill in another place, a risk was raised that the inappropriate use of new civil enforcement powers could damage the open flow of information between the industry and the CAA. A recommendation was made that the CAA be required to consult on a formal policy before exercising the new powers. I hope that that will give my noble friend some comfort. I do not agree with any suggestion that the CAA would use the new enforcement powers disproportionately. That is because the Legislative and Regulatory Reform Act 2006 requires regulators to carry out their regulatory functions transparently, accountably, proportionately, consistently, and target them only where action is needed. That includes the CAA, and we are confident that the CAA will abide by those requirements. The Department for Transport intends to consult fully on any secondary legislation which will make civil sanctions available to the CAA in respect of relevant offences and to develop a full impact assessment—a point that I know concerned my noble friend.
For those reasons, I hope that my noble friend will consider withdrawing his amendment.
Lord Trefgarne
My Lords, is my noble friend willing to write to me with more detail about the intended appeal processes for the fixed penalty notices? I recognise, as he says, that secondary legislation is likely to be required before these processes come into place, but this is a subject of considerable concern, at least for me. As I explained, the present processes for dealing with appeals against, for example, fixed penalty notices from Transport for London, are unsatisfactory and I hope that they can be improved in respect of whatever the CAA is empowered to do.
Earl Attlee
My Lords, I will be delighted to write to all Members of the Committee explaining the Government’s intent on that issue.
Lord Rotherwick
My Lords, I thank the Minister for his full reply. He went a long way to try to answer all my questions. He still did not answer the question about whether the CAA asked for this.
Lord Rotherwick
That helps a lot: I now know who to hold responsible. I must point out that within the limited scope of the Bill, which pays hardly even any lip service to general and business aviation, in the one area where we are mentioned, we find ourselves caught on the stick, the discipline area; there are no carrots around. I know that my noble friend is a very generous Minister and I hope that there will be some carrots, having had the stick first.
I am grateful that he will write to my noble friend Lord Trefgarne about the consultation. In past consultations, general and business aviation has not always been represented. I would be most grateful if my noble friend feels able to go as far as to say that that will be the case this time: that there will be general and business aviation members of the consultation and, most importantly, that we are not treated like commercial pilots. We do not earn our living from our licence, we are private pilots who do our best to abide by the rules.
Earl Attlee
My Lords, I assure my noble friend that the GBA community will be included in any consultation.
Lord Rotherwick
My Lords, I am grateful for the Minister bending over backwards on all my questions. I will read everything with consideration and I hope that we might have the letter before Report stage, which, after all, will be at the end of the summer, in order to make a decision as to whether to come back to this issue again. In the light of that, though, I beg leave to withdraw the amendment.
Lord Trefgarne
My Lords, I must confess that when I read this provision originally it seemed to be a rather extraordinary provision to be included in the Bill. I therefore took the occasion to make some inquiries. First, I declare an interest. For a number of years, I held an aviation medical certificate, which has now lapsed owing to my great age. Throughout the 40-odd years that I held a civil aviation licence, I was dealt with with the utmost consideration and skill by the CAA, and previously by the Ministry of Aviation’s medical authorities, including on two occasions having my licence suspended for medical reasons, entirely correctly and properly, by the then authorities.
My concern is confidentiality. I am and always have been very anxious that medical information held by public authorities, whether it is the CAA or anyone else, should remain properly confidential. I accept that there are provisions in these arrangements to keep confidential the information that is to be released to others, but the civil aviation community, the number of those who hold civil licences and air traffic control licences, is comparatively small. There is a risk that, if the information for some unusual medical conditions is published, it will be possible to identify the persons concerned. If the information on, say, half a dozen or so cases of a particularly obscure medical condition is made available to research agencies, it will be obvious who is the holder of that medical information.
I hope that my noble friend can explain in a little more detail than appears in the Explanatory Memorandum why it is necessary to have this new power. Can he give me the necessary assurances with regard to the absolute confidentiality of the information to be provided?
The Countess of Mar
My Lords, I am pleased to see this clause in the Bill. Some years ago, research was conducted on airline pilots who had been exposed to organophosphates. I am sorry but I have a problem with my voice. It was impossible for the CAA to give any details whatever to the researchers and it caused huge difficulties. This will relieve that difficulty, so I am very pleased to see it.
Lord Rotherwick
My Lords, I have great sympathy with my noble friend Lord Trefgarne’s opposition to the clause. I would be very interested to hear what the Minister has to say because I think that my noble friend’s concerns are those of many similar pilots.
Earl Attlee
My Lords, I would oppose my noble friend Lord Trefgarne’s intention. I believe that Clause 104 should remain part of the Bill. My noble friend said that his pilot’s licence was properly suspended for medical conditions. I currently have the same problem with my HGV licence because my blood pressure is too high—but the Summer Recess is coming soon.
My noble friend was concerned that it might be possible to identify a pilot’s condition because of those small cohorts. It is more likely that medical research would be into large cohorts, such as all pilots with condition X or all class 1 medical certificate holders. Should a smaller cohort be of interest, the data controller would normally look to seek consent first.
There are several reasons to keep the clause part of the Bill, by no means the least of which is that the Government are seeking to enact this change because it was recommended by your Lordships’ Select Committee on Science and Technology in 2007 and this is the first legislative opportunity that successive Governments have had to give effect to your Lordships’ recommendation.
I shall turn to the specific points raised by my noble friend so that I can give him the reassurance that he seeks. First, he has suggested to me—certainly in private; I cannot remember whether he has said this publicly—that the CAA may sell on medical records. I make it very clear that this is not the intention of the legislation and that the CAA has no plans to do this. There is also perhaps the prospect of the CAA requiring even more medical data from pilots and flight crew, because it might be useful for the purposes of later medical research. The CAA cannot ask for more medical information than it needs to consider an application for a medical certificate. The CAA has no intention or wish to ask for extra medical information and no mechanism under which to do so without obtaining individual informed consent. The CAA abides by the data protection principle of keeping the minimal data required for the purpose of medical fitness assessments. If an applicant were asked to provide medical information that appeared to have no relevance to their licence application, it could be expected that they would challenge the need for it.
Clause 104 does not provide the CAA with any further powers to collect medical information. Those powers are already there as part of the CAA’s licensing obligation under the Air Navigation Order. The CAA has no intention to expand the scope of the medical information that it requires of applicants, and this provision would not allow for that. The clause is there solely to permit the CAA to disclose the medical information that it already collects for medical research purposes, subject to the strict safeguards contained in Clause 104(3).
The Committee will note that the CAA does not set out to collect medical data but acquires such data from people wishing to be licensed as pilots, navigators and so on because it has to make a judgment on whether those people are medically fit enough to be licensed. We also think that making this change is a good thing to do. The Civil Aviation Authority receives medical information relating to flight crew and air traffic controllers in the course of its licensing functions. Clause 104 provides for the CAA to be able to disclose this medical information to medical researchers by amending Section 23 of the Civil Aviation Act 1982, subject to the strict safeguards included in the Bill. This information could be used for important medical research into the major functional and incapacitation risks to those individuals—for example, the risks of heart problems. We believe that an increased understanding of the main health risks may in turn lead to an improved understanding of the risk to public safety, which is vital in the aviation industry.
The types of important research envisaged here include the analysis of the electrocardiogram tracings of pilots over an extended period to determine whether small anomalies—that is, differences—seen in the tracings translate to heart problems later in their careers. Given the important benefits of this research, we consider that the provision represents a proportionate response to the legitimate aims pursued. I also remind the Committee that this proposal was supported in public consultation on the Bill, where the vast majority of respondents agreed with making anonymised medical data available for ethically approved research. It is of course vital that in doing this we include strong and effective safeguards to protect individuals’ privacy. The Government are committed to ensuring that medical research will not compromise the rights of individuals to have their confidential medical information protected. I have already answered one of my noble friend’s very good questions, which was about small cohorts.
Individuals’ rights under the Data Protection Act 1998 and Article 8 of the ECHR will be fully respected. The CAA will act as the data controller at all times. We have included strong safeguards in the clause to protect those individuals. First, medical information must be anonymised by the CAA before it is released to medical researchers. Secondly, the disclosure must be for medical research purposes approved by a research ethics committee. Thirdly, the CAA must consider that the research is likely to improve the understanding of health risks to those individuals required to provide medical information to them. Fourthly, the CAA must consider that it would be difficult or expensive to take the steps required by existing legislation to enable disclosure of all the information that is to be disclosed—for example, where the research cohort is particularly large. As the information disclosed by the CAA would be anonymised, any published research would also be in anonymous form. These cumulative safeguards will ensure the appropriate balance between enabling important medical research and protecting privacy rights. I therefore hope that my noble friend will feel able to withdraw his opposition to the clause standing part of the Bill.
Lord Trefgarne
My Lords, I am very much persuaded by the arguments that the Minister has put forward. It is important that this information is kept confidential.
I have just one other question to which I suspect my noble friend will not have answer off the cuff, but if he could write to me on it, I would be grateful. Am I not right in thinking that the CAA has access also to medical information on pilots held by the Ministry of Defence? It is important that that information, too, should be kept confidential, but it is also important that the information is available for the researchers if it can be done in a proper way and with proper safeguards. My noble friend may not have that information at his fingertips, but if he could write to me about the MoD position in this matter, I would be greatly obliged.
Earl Attlee
I can undertake to give what information I can. However, we both know a little bit about the Ministry of Defence and I am not entirely confident that it would have the data that the CAA would have.
Lord Trefgarne
My Lords, again, this is a very small point on which I would be grateful for assistance. Am I not right in thinking that, if we move in some respects from prosecutions under the 1982 Act or some other Act to prosecutions under the Air Navigation Order—we have already talked about fixed penalty notices—the penalties under the ANO are less than those under the civil aviation Acts, including the 1982 Act? Is that one of the intentions of this provision?
Earl Attlee
My Lords, I shall resist my noble friend Lord Trefgarne’s intention to oppose this clause and I urge that it should remain part of the Bill, with which I am sure my noble friend will agree. Clause 105 repeals Section 81 of the Civil Aviation Act 1982, which creates an offence of dangerous flying where an aircraft is flown in such a manner as to cause unnecessary danger to any person or property. In practice, prosecutions for dangerous flying have invariably been brought by the CAA under successive Air Navigation Orders, currently the Air Navigation Order 2009, rather than under Section 81 of the 1982 Act. I understand that my noble friend’s concern is about the relative penalties under the Act and the order, and I shall come to that matter in a moment.
The 2009 order is used because it sets out what needs to be proved for an offence to have been committed, including recklessness or negligence, more clearly than does Section 81 of the 1982 Act. Any prosecutions of dangerous flying would be carried out under one of the two articles in the Air Navigation Order. The first is Article 137, which provides that:
“A person must not recklessly or negligently act in a manner likely to endanger an aircraft, or any person in an aircraft”.
The second is Article 138, which provides that:
“A person must not recklessly or negligently cause or permit an aircraft to endanger any person or property”.
Lord Berkeley
Could the Minister explain what Clause 105(5) means in practice? It refers to,
“power to apply certain provisions to Crown aircraft”.
The Minister will know that we debated transport to the Scilly Isles a week or two ago. I heard that Prince Charles visited there last week with great success. However, there was thick fog and the only plane that was allowed to fly was his. I hope that it was safe— I am sure that it was—but in terms of safety of navigation it is odd that only one plane was allowed to fly. Was everybody else banned or did they not have the right equipment? Maybe this is irrelevant to the clause but what is special about “Crown aircraft”?
Lord Rotherwick
It may help if I jump in. I suspect that planes landing in the Scilly Isles were under CAT—Civil Air Transport. In certain situations, a private plane can be landed under VFR when a public plane cannot under IFR. I only suggest that that might be the case
Earl Attlee
My Lords, if the aircraft was being operated under the terms of the Civil Aviation Act, it is a matter for the CAA to regulate and investigate. It is not a matter for me to comment on. If it was an aircraft of the Ministry of Defence, it is not covered by the Civil Aviation Act.
Lord Trefgarne
My Lords, I am grateful to my noble friend for explaining all the penalties. Were I still authorised to fly, I should be very careful not to fly dangerously and fall foul of all the penalties he described.
The Countess of Mar
“Public interest disclosure
(1) The Civil Aviation Act 1982 is amended as follows.
(2) After paragraph (ha) of section 60(3) (functions with respect to health) insert—
“( ) for ensuring that all airline pilots and crew are aware of and are protected by the terms of the Public Interest Disclosure Act 1998.””
The Countess of Mar
My Lords first, I apologise if my voice runs out; I have a problem in that direction. In moving Amendment 71, I shall speak to Amendment 72. I suspect that most noble Lords will be aware of my long-held interest in organophosphates—OPs—and, more particularly, those whose health has been damaged by exposure to OPs. This interest stems from my personal experience.
At Second Reading I spoke of the method by which the air that pilots, airline crew and passengers breathe is drawn in over the very hot engines of an aeroplane on to which oil may have leaked. This oil, manufactured by one company, ExxonMobil, contains an OP—tricresylphosphate, or TCP. This becomes aerosolised when heated to high temperatures, such as when it drips on to a hot engine. I detailed the chemical stages during Committee on the CAA Act 2006, as I am sure the noble Lord, Lord Davies of Oldham, will remember, so I will not do it again.
I know that the Minister will rely on the much criticised Cranfield study which looked at a sample of just 100 flights and found no so-called fume events. What it did find was the presence of TCP in 23% of flights and there were 38 reports of fumes of which the majority were described as “oil” or “oily type” smells. A mandatory occurrence report or defect report was not triggered for a single flight, despite this being a requirement of Commission Regulation (EC) No. 859/2008, which amended No. 3922/91. An “occurrence” is defined in directive 2003/42/EC as,
“an operational interruption, defect, fault or other irregular circumstance that has or may have influenced flight safety and that has not resulted in an accident or serious incident”.
The directive is worth reading because it details occurrences such as fume events. I wonder why these occurrences were so studiously ignored by the Cranfield researchers.
Toyber’s dictum states:
“Absence of evidence is not evidence of absence”.
There are two problems with occurrence reporting. The first is that pilots and crew know that if they report a fume event, their aircraft will have to be grounded at considerable cost to their employer and that, to put it mildly, is likely to be frowned upon. The second problem is that of credibility. Fume events are, by their nature, transient. They can be minor or major, and I know that the Minister has seen film of a major event when you could hardly see down the cabin because of the smoke. There is no standard equipment on board an aircraft to collect or measure toxic fumes, and the human nose is the only available detection system. Engineering tests, unless they very precisely replicate the conditions under which a reported event took place, are very unlikely to produce a fume event. In either case, the reporting officer will be afraid at least to be made to look a fool or at worst to be sacked.
The CAA Act 2006 placed on the Secretary of State and the CAA duties in connection with,
“the health of persons on board aircraft”.
The EU legislation listed in my Amendment 72 also places duties on the competent authority in relation to the health and safety of pilots, crew and passengers on board aircraft. Other EU and international legislation defines the safety of the aircraft, its engines, other mechanical equipment and even the quality of the engine oil to be used. Much of the health and safety legislation that applies to everyone in the UK workplace is defined in health and safety Acts and regulations. The Minister, in a letter to me dated 18 June this year, stated that:
“The operation of aircraft in and over Great Britain is subject to the Health and Safety at Work Act 1974. Consequently, the Control of Substances Hazardous to Health Regulations (COSHH) 2002 (as amended) do apply to aircraft in flight in airspace above Great Britain. However, the Civil Aviation Authority (Working Time) Regulations 2004 (as amended), also impose a duty on employers to ensure adequate health and safety protection of aircraft crew on British-registered aircraft at all times. These regulations cover aircraft in flight and are enforced by the CAA”.
The memorandum of understanding between the CAA and the Health and Safety Executive, which the Minister mentions in his letter, states at paragraph 1.5.3:
“The CAA is responsible for regulating the occupational health and safety of crew members whilst they are on board an aircraft from the time when they board the aircraft, preparatory to flight, to the time they leave the aircraft on completion of the flight. For the purposes of the occupational health and safety reporting and regulatory consideration, the CAA will monitor events occurring in aircraft whilst in operation outside the UK”.
That all sounds very good. However, when the CAA was challenged for failing to enforce the COSHH regulations, Mr Tim Williams, then the CAA health, safety and environmental adviser, wrote on 13 April 2007:
“The CAA’s health and safety enforcement powers are derived from the Civil Aviation (Working Time) Regulations 2004”—
which the Minister has told me—
“in particular Regulation 6 that requires adequate health and safety protection to be provided to crew members. These Regulations neither replicate nor replace those made under the Health and Safety at Work etc Act 1974, which are enforced by the Health and Safety Executive. The Control of Substances Hazardous to Health Regulations 2002 … are derived from the Health and Safety at Work etc Act 1974 and”—
I hope that the Minister will listen to this—
“the CAA has no authority to enforce these Regulations, with enforcement duties falling to the HSE. It is therefore inappropriate for the CAA to investigate any alleged breaches of the COSHH Regulations. The Memorandum of Understanding (MOU) between the HSE and the CAA, and in particular Annex 8, provides further details on the divisions of health and safety responsibilities in aviation. The MOU also sets out how the CAA and HSE will interact to avoid duplication of regulatory effect”.
They might also interact to avoid any regulation in this case.
Mr Williams goes on to say that the CAA is always prepared to investigate where the health and safety of crew members may have been compromised, but states that there is a lack of evidence. Of course, if you do not look, you will not find. There is plenty of evidence going back to the 1950s. If the Minister looks at the PhD thesis of Susan Michaelis, called Health and Flight Safety from Exposure to Contaminated Air in Aircraft, which I gave him last year, he will see in the annexe page upon page of contaminated air reports from May 1985 to August 2006. He will see pages of data which confirm cabin air quality problems in BAe 146s, just one of the aircraft types known to have this problem, and yet no one in government or the CAA seems to have shown any interest in what effect these events have on pilots, aircrew and passengers. I wonder, and am frequently asked, why, after a reported incident, medicals, including blood tests, are not conducted immediately on those likely to have been affected. This would at least establish whether there has been exposure to TCP.
As I said at Second Reading, a small study in Nebraska showed that 50% of passengers on one flight tested positive to TOCP, and a recent survey found that 32% of UK pilots experienced medium to long-term ill health. Forty-four per cent reported short-term effects and 13% were grounded because of fume events.
Researchers at Cranfield and the Institute of Occupational Medicine in Edinburgh express an opinion that the levels of TCP found in aircraft are acceptable, but I do not think that it needs much imagination to realise that levels of absorption and inhalation of toxic chemicals in a normal working environment such as a factory are very different from those in the enclosed, pressurised atmosphere of an aeroplane cabin or cockpit. No safe levels have been established in this case. In any event, there are no acceptable daily exposure levels laid down for the more toxic breakdown products of TCP or for the chemical cocktails produced by heated oil. Incredibly, a CAA investigation into cabin air quality suggested that the average man can safely,
“ingest 7 metric tonnes of pyrolised oil per day for 74 days without effect”.
I wonder on what sound scientific evidence that statement was based.
A long-standing former British Airways cabin crew member, concerned about the health effects that she was seeing among her colleagues, surveyed more than 1,000 crew. Among other things, she identified cancer occurring at 10 times the UK national average. She advised BA management and medical personnel of her findings. Instead of thanking her for her efforts and agreeing to take matters further, they sacked her. Although my Amendment 71 may not be perfectly worded, I hope that the Minister will accept its spirit and either assure me that airline pilots and crew will be supported and encouraged to report events that may have adverse health effects or assist me with wording an acceptable amendment to this effect.
The Minister and the noble Lord, Lord Davies of Oldham, may recall my efforts during the passage of the Civil Aviation Act 2006 to provide a truly independent health and safety and medical facility for pilots and crew. I was concerned that because the CAA was dependent on the aviation industry to fund this provision, there might be some reluctance to put pressure on the airlines to improve working conditions and health and safety grounds.
The ability to enforce COSHH regulations is fundamental to ensuring that cabin air is not contaminated, but on its own admission the CAA has no enforcement powers. This is totally unacceptable. The cockpits and cabins of airplanes are workplaces for pilots and crew. I can think of no other workplace in the UK where employees are so unprotected. I understand that an Air Navigation Order would be necessary to give the CAA this power. I hope that the Minister will agree to Amendment 72 when I move it. In the mean time, I beg to move Amendment 71.
Lord Wigley
My Lords, I support Amendment 71, as moved by the noble Countess, Lady Mar, and I support her in regard to Amendment 72. I pay tribute to the phenomenal work that she has undertaken over an extended period on conditions associated with organophosphates. I regret that I cannot bring to this Committee the direct experience of flying that other noble colleagues have but, during my incarnation in another place, I have certainly had far too much experience of exposure to organophosphates in other walks of life. Some noble Lords may be aware of the work undertaken by Mrs Enfys Chapman, who was for a time a constituent of mine and had the need to dig into the tragic consequences of OP dips. I had constituents who were chronically affected by organophosphates: two sheep farmers who were almost certainly crippled by the effects of OP sheep dip. A relative of my wife was also afflicted.
For those reasons, I have no doubt whatever that those open to ill health caused by such substances in the course of their work must be protected by law. It is surely our responsibility to ensure that the law is stringent enough, and properly applied, that there is: adequate identification of these cases when they arise; that there is clarity with regard to who has the responsibility for following up; that a statistical analysis is undertaken; and that, where necessary, regulations are tightened to ensure that people in cabins and passengers in aircraft are not put in danger because of the effects of these substances.
I draw to the Committee’s attention some statistics that are relevant to air crew contamination. The noble Countess has referred to Susan Michaelis who, in a PhD thesis, undertook an extensive health survey of 146 UK BAE pilots. That snapshot showed that: 88% were aware of cabin air contamination; 63% reported symptoms consistent with cabin air contamination, some immediate and some long term; 44% reported immediate short-term effects consistent with cabin air contamination, representing flight safety hazards; and 32% reported medium to long-term effects, again consistent with air cabin contamination and representing a flight safety hazard. Thirteen per cent were chronically impaired and no longer able to fly, which was in fact higher than pilot medical statistics for disqualification globally for all reasons, not just those consistent with air cabin contamination. There is a strong temporal relationship between the adverse effects reported and the contaminated air environment. Those data are the most authoritative that we have and surely should be considered.
I hope that the Minister will accept the amendments but, at the very least, is he willing to accept those figures? If he does not accept them, is he in a position to gainsay the argument? If other figures exist, they should surely come to light. I hope that he can tell the Committee that his department has rigorously examined the evidence put forward by Susan Michaelis in her PhD thesis. At the very least, I hope that the Minister will set up some independent investigation into the reporting system of events that may have adverse health effects on those in aircraft cabins, and clarify who is responsible for applying the regulations. Will he undertake to review the statistical information available, from all sources, to ensure that this issue is most assuredly not swept under the carpet?
Lord Rotherwick
My Lords, I congratulate the noble Countess, Lady Mar, and the noble Lord, Lord Wigley, on tabling the amendment. It is most important, and the compelling evidence that we have heard is evidence I have heard about for a long time and, indeed, read in books. If I am right, the aircraft referred to is the one that the royal flight uses and is mainly used for Ministers. If someone said to me that a Minister has faded or gone bonkers, the next question should be: how many times have they flown on the royal flight? We all get into the commercial aeroplanes that we are talking about, so this is something that affects us. Of the Cranfield test, it was suggested—alleged—to me that it was suspect because the aircraft that they had on test were ones given to them by the airlines, not picked at random but, it was alleged, safe aircraft given for tests. One of the unofficial research teams referred to in some books found that, of its swab tests on a range of aircraft, the majority had contamination when the swab tests came off seats.
We have all had the awareness when we come off a plane that we frequently travel on: “Gosh, I was tired on that flight. I’m not normally that tired”. That is a real problem. If the Minister does not accept the amendment, my only advice for noble Lords about planes that take their cabin air, their bleed air, off the engines, off the compressor, is to fly on a Boeing 787, the Dreamliner. It is the first aircraft that does not use the ghastly system that causes the problem; it uses a specialist air system totally independent of the engine.
I hope that the Government will come forward to address this elephant in the room; it affects us all when we go on aircraft.
Lord Empey
My Lords, I do not know whether the amendments before us will be the right vehicle, but they draw attention to a problem that definitely exists. As someone with a family member who is a commercial airline pilot, I am very conscious of the risks involved. It is often pointed out that pilots and air crew are at greater risk of receiving higher levels of radiation because they fly without any protection at very high levels for prolonged periods—indeed, throughout their working lives—and that that makes a difference. Here, there is undoubtedly a problem but the solution is not as immediately obvious. For instance, on the point made by the noble Lord, Lord Rotherwick, about the Dreamliner and its new system, many of the huge fleets of existing aircraft have the basic bleed air system so this is not easy to resolve. Mention has been made of the BAe 146, which is a very nice aircraft to fly in and, in particular, to land in, but there have been incidents where aircraft have suffered a large ingress of vapour to the cabin, visible to the passengers. This is not a figment of someone’s imagination; it actually happens. Although it is true to say that pilots on flight decks generally have an independent air supply from that of the people in the main cabin, it is sourced from the same place.
The question is: do we need international action? Let us face it, there are a very small number of aircraft manufacturers in the world and probably an even smaller number of aircraft engine manufacturers. Basically, there needs to be international action by Governments to deal with this issue, whether through an action in this Bill, through action by the Government taken via international organisations or through discussions with the industry. As the Minister pointed out, we are still number two in the world on aerospace, which is a very important industry to this country. I would think that adequate information is bound to be available within the United Kingdom from the manufacturers of engines and aircraft or parts of aircraft generally, and I cannot see any reason why we cannot pursue this issue through that route.
We are in a worldwide competitive market, and no individual airline will be in a position to put its head above the parapet without putting itself out of business. Therefore, we need not only national or European action but international action to deal with this. I guess that we all fly in aircraft that are differently flagged. We could be in an American aircraft, a British aircraft or an aircraft from Abu Dhabi. This is an international issue that needs international action. I do not think that we will resolve it simply by domestic means alone, albeit that we can set an example, and I have no doubt that that is the purpose behind the amendments. I think that the proposers would accept, though, that this needs an international response.
I hope that the Minister will allude to that and say whether he would be prepared to undertake on behalf of the Government to contact our European partners and some of our major manufacturers. We have medical expertise in this country that should be able to identify the significance of the problem. I think that the noble Countess said that you will not find if you do not look, which is a very telling point. Yes, I do not want to see our industry crippled competitively against others but, at the same time, if long-term damage is done to pilots and other air crew as a result of this contamination, that is a matter where we as a Parliament have a duty of care to people in the community who work in that environment, just as the noble Countess identified those people who worked in our agricultural sector and were exposed to vast quantities of contamination.
I recall the time years ago when people said that Sellafield was not a threat in the Irish Sea. We were told that the levels of contamination were perfectly safe. The levels of what people think is safe are now about one-thousandth of what they were 30 years ago. We are all in territory where we know that something is not right but we are not necessarily sure of the solution. There are many examples where substances entering our systems can do long-term damage if people are exposed to them for long periods of time.
I have an open mind on whether this is the right route but I hope that the Minister, on behalf of the Government, at least will address the fundamental and underlying point behind the amendments.
Lord Davies of Oldham
My Lords, I shall contribute briefly because I cannot do justice to this issue. However, I hope that the Minister will do so. I pay tribute to the enormous work of the noble Countess, Lady Mar, in this area. I had the privilege of knowing Nancy Tait who happened to be a constituent when I represented Enfield and first came into the House. For a number of years her concerns about asbestosis were brushed aside on the grounds that the evidence did not match the allegations being made and anxieties being expressed. Everyone else knew that huge potential costs were involved if asbestos had to be stripped out of buildings that were already constructed, to say nothing about not being used again for building. She was right and the doubts of the authorities were eventually overcome. The evidence was produced and we are all healthier because of that, not least our schoolchildren because one of the great uses of asbestos was in schools.
I do not know whether this issue is as significant as that but when the noble Countess, Lady Mar, came to see me when I had responsibility for the department in this House a few years ago, I asked for all the investigations and evidence that the department could make on these issues. I know that a significant amount of work was done. The one thing that I was not prepared to do was to stand before the House on behalf of the Government and reject the noble Countess’s amendments without an assurance that we had explored every dimension.
There was an element in that about which I have not heard any more. I wonder whether the noble Countess can enlighten the Committee. One of the issues was that the airline pilots, through BALPA, did not regard themselves as being excessively threatened by this problem. We all know that they have to protect their livelihoods and they have a vested interest, but equally no one goes to work thinking that they may be engaging in something that will seriously affect their health in the future or even make them dangerous if they fall ill while they are working. That was an important dimension. I do not know whether BALPA’s attitude has changed. There has been no reference to it but it would be germane to the debate.
The Countess of Mar
I think that the noble Lord might agree that being an airline pilot is quite a macho job and you do not admit that you are feeling ill until you have to. We have two pilots here. Some of the people with whom I have contact are ex-BALPA pilots and are now seriously ill—some very seriously ill. While they were members of BALPA and working they did not complain. I mentioned at Second Reading the fear that they have of reporting because of losing their jobs.
Lord Davies of Oldham
We all understand that point. The noble Countess referred to macho jobs. There are lots of tasks that are extremely dangerous and people are prepared to take them on, but a risk to their health of what is involved is a long-running dimension that this manifestation represents.
My point is obvious enough: I was assured several years ago that there was not sufficient substance in the position as established at that stage for action to be taken. The action, of course, will be dramatic. Reference has been made to the fact that the Dreamliner does not use this air system. The Dreamliner is rather an expensive aircraft to produce, as we all know, and it is in open competition with the A380, which uses the old system. We are talking about massive resources being involved. There is no easy switch. If anyone had thought at any stage that everyone’s health could have been safeguarded just with an easy technological change, that would have been done, but we are talking about something so much bigger.
Lord Empey
Does the noble Lord accept that maintenance is an issue here? The 146’s oil seals were partly responsible when they corroded, largely due to the chemicals to which they were exposed. Maintenance may not be the solution but it is certainly an issue.
Lord Davies of Oldham
It certainly is; the 146 illustrated that in graphic terms and that is why changes were made. I hope that the Minister is able today to build on experience. After all, the issue has been before the department, thanks to the work of the noble Countess, over a number of years now. I hope that he is able to give the Committee reassurances about this question of health and how it is being monitored. I do not have the slightest doubt that if we are wrong, we would all feel dreadfully culpable because significant warning signals have been sent out, and that is why the issue has to be treated with the utmost seriousness.
Lord Wigley
Does the noble Lord agree that the first step must be to get authoritative independent evidence, facts and figures on which to base decisions, and that that needs to be looked at rigorously? That is something we could all support because out of that we can then reach reasonable conclusions.
Lord Davies of Oldham
Of course. That is a major exercise and a costly one, and would have to be done with the greatest thoroughness. The department and indeed the Government would have to be convinced that the anxieties were such that they could be allayed only by that approach. It is for the Minister to indicate to us whether he thinks that we are at that stage now; we certainly were not a few years ago.
The Countess of Mar
I have no intention of expecting the airline industry to scrap all its planes immediately and replace them with the Dreamliner. I recognise that that would be hugely expensive. It is just the same story as with asbestos and, in a more minor way, with sheep dip, although the latter problem has been resolved. I am concerned that people are not reporting ill health because they are frightened—frightened of losing their jobs, in one case, or of retribution. If the CAA had the power to enforce COSHH, doing so would make the airline owners maintain their aeroplanes properly— I am grateful to the noble Lord, Lord Empey, for his intervention there—and take notice when there was a complaint. Until we know how many complaints there are, we are not going to be able to solve the problem.
Lord Davies of Oldham
I hear what the noble Countess says, and I heard that case deployed at the time when we met previously on this issue. Overall, though, my experience is that, whatever risks to livelihood, people have the greatest concern about threats to their long-term health and it is therefore not the case that they conceal these issues. The issue with the asbestos problem was not that people were concealing the impact; what was not being substantiated sufficiently was cause and effect, which is exactly the issue here.
Earl Attlee
My Lords, I am grateful to all noble Lords for their contributions to this debate. On the first amendment tabled by the noble Countess, airline pilots and crew members are already protected in this area by Part IVA of the Employment Rights Act 1996, which was inserted by Sections 1 to 2 of the Public Interest Disclosure Act 1998, both as workers who can make a protected disclosure to their employer and as individuals who can make one to the CAA. The CAA is a prescribed person for the purposes of that Act, which means that it can receive “protected disclosures” or whistleblowing from the civil aviation industry.
As for awareness of these rights, the CAA has a published statement on its website in relation to its whistleblowing policy which makes it clear that it will investigate all complaints in an appropriate manner, endeavouring to maintain confidentiality at all times.
I add for the sake of completeness that, as well as the protection afforded by the Act, the CAA has long established processes in place for incident-reporting and to safeguard confidentiality. The chief of these is the mandatory occurrence reporting scheme established in 1976. Consequently, the noble Countess’s amendment refers to protections already in place and is unnecessary.
The second amendment proposed by the noble Countess is also unnecessary. However, it also has an important and possibly unintended consequence which makes it unacceptable. The amendment would substitute the existing provision in Section 60 of the Civil Aviation Act 1982 with the wording that it proposes. This would be a backward step because it would cause the removal of the power which enables an Air Navigation Order to contain provisions,
“for safeguarding the health of persons on board aircraft”.
That power has already been used.
The duty on the Secretary of State of,
“organising, carrying out and encouraging measures for safeguarding the health of persons on board aircraft”,
now in Section 1(1A) of the 1982 Act, as inserted by Section 8(2) of the Civil Aviation Act 2006, was a widely welcomed reform. The existing Section 60 power is part of delivering that general duty. We do not want to lose that. I suspect that the noble Countess does not want to lose that either, but the effect, perhaps unintentional, of this amendment would be to remove the relevant subsection of Section 60. That is why I regard it as a backward step and why it is opposed by the Government.
There is also a second objection to this amendment. The matters listed in it are a mixture of UK legislation, European legislation and European Aviation Safety Agency technical specifications. They are already enforced by the appropriate regulators in relation to the protections that they give, including safety, technical integrity of aircraft and working conditions for those in the aviation industry.
The principal enforcement agencies are the Civil Aviation Authority and the Health and Safety Executive, and there is a memorandum of understanding, referred to by the noble Countess, between these two bodies setting out their respective responsibilities for enforcing occupational health and safety in relation to public transport aircraft while on the ground and in the air. It was drawn up by the two organisations with the aim of avoiding duplication of effort in the areas of overlapping mutual interest. There is therefore no need specifically to provide for the enforcement of these in an ANO.
The noble Countess suggested that the CAA was complacent. This is far from being the case. Successive UK Governments have investigated the matter thoroughly. The UK has an excellent safety record in aviation which we would not wish to lose by being complacent. Allegations of ill-health caused by cabin air have not been upheld by research. The main research study, published by Cranfield University in May last year, found no evidence of pollutants occurring in cabin air at levels exceeding available health and safety standards and guidelines.
However, I am well aware that the noble Countess has very strong views about the standards and guidelines. Levels observed in the flights that formed part of the study were comparable to those typically experienced in domestic settings. The department has now formally referred the published research studies to the Committee on Toxicity, the independent adviser to the Government on matters concerning the toxicity of chemicals, for it to consider the matter.
The Countess of Mar
My Lords, that is precisely what they are doing. The people I have contact with are ex-BALPA pilots and they are now complaining. If the Minister was to go to a meeting of the GCAQE, he would see a lot of ex-BALPA pilots.
Earl Attlee
What I find odd is that the noble Countess has been raising the issue for some time, but no pilot or any member of cabin crew apart from a very few who are in contact with her has ever approached me on the issue. I have received nothing about it.
The noble Countess also asked me about medical data. The swab test research undertaken by the Institute of Occupational Medicine in Edinburgh found concentrations of organophosphate compounds consistent with previous measurements. I remind the Committee that the main research study published by Cranfield University in May last year found no evidence of pollutants occurring in cabin air at levels exceeding available health and safety standards and guidelines. Levels observed in flights that formed part of the study were comparable to those.
The Countess of Mar
I remind the noble Earl that in none of those aircraft was there a fume event, but they still found TCP in the aircraft.
Earl Attlee
The noble Countess has made that point before. As a mere parliamentarian, I have to rely on the academic research being conducted in an appropriate manner and subject to peer review. All the published research studies have now been formally referred to the Committee on Toxicity which is, as I said, the independent adviser to the Government. When I first came into the House in 1992, I was rapidly aware of the noble Countess’s work regarding organophosphates and sheep dips.
In answer to a point made by the noble Lord, Lord Wigley, I am sure that the law is being properly applied. The noble Lord asked: how frequent are fume events? Incidence of fume events is extremely low. The most recent figures show that in 2010, there were 207 contaminated air events reported to the CAA mandatory reporting scheme out of 1.12 million passenger and cargo flights by UK carriers. That is 0.018% or less than 1 in 5,000.
The Countess of Mar
Does the noble Earl agree that the Science and Technology Committee found severe underreporting of fume events?
Earl Attlee
My Lords, I am not sure what would drive underreporting of fume events.
The noble Lord, Lord Davies, talked about his role in this matter and his discussions with the noble Countess some time ago. As I said, the UK has undertaken research where no other country has done so.
The Countess of Mar
I am sorry to interrupt the noble Earl, but Australia and the United States have done so.
Earl Attlee
My Lords, I am afraid we will have to have a difference of opinion on that matter. In view of what I have said, I hope that the noble Countess will feel able to withdraw her amendment.
The Countess of Mar
Will the Minister kindly address my question about the ability of the CAA to regulate through COSHH? I repeat: the CAA has no authority to enforce the COSHH regulations—this is from the CAA—and it is therefore inappropriate for the CAA to investigate any breaches of the COSHH regulations.
Earl Attlee
My Lords, in my answer I explained to the Committee that I am certain there is no gap in responsibilities between the HSE and the CAA.
The Countess of Mar
But the HSE has the ability to enforce COSHH regulations. The CAA has no ability to enforce COSHH regulations, on its own admission, and it is important that it should be able to.
Earl Attlee
Yes, my Lords, but as I explained to the Committee there is a memorandum of understanding, which the noble Countess referred to, to ensure that there is no gap between enforcement by the CAA and the HSE.
The Countess of Mar
I thank the Minister for his response but I find that really inadequate. The facts are there: the Health and Safety Executive has the ability to apply COSHH but the CAA, on its own admission, has not that ability. It is important because engine oils and their effects would come under COSHH. I thank the Minister for addressing my other points and I am also very grateful to the noble Lords, Lord Wigley, Lord Rotherwick, Lord Empey and Lord Davies of Oldham, for their contributions and kind comments, which I found quite embarrassing.
This is an important subject. I highlighted problems with sheep dip and I was told at first that it was perfectly safe. I was proved right on that occasion and I hope that noble Lords will listen to me because there are serious effects. What concerns me perhaps as much as anything is that passengers are never told when there has been a fume event. You might get a lady who is newly pregnant—perhaps she does not know that she is— and whose baby, when it arrives, has either a cognitive problem or a deformity. We know that foetal exposure to tiny amounts of organophosphates can be quite serious.
We really need to be looking at this more thoroughly. I know that when the Cranfield work was done, it was agreed that pilots would not be looked at until it could be established whether these toxic chemicals were in fact arising in airplanes. That work has been done and there has been a lot of criticism of it. I am not too happy about it, personally, because I have seen how such research can be twisted in order to provide the answer required and I mentioned intellectual corruption at Second Reading. I am not going to let go of this. I shall pursue it even beyond this Bill. I realise that it is difficult but the noble Earl will hear more of it. In the mean time, I beg leave to withdraw my amendment.
Lord Rotherwick
“Automatic direction finding equipment
In paragraph 4 of Schedule 5 to the Air Navigation Order 2009, paragraph (a) of Scale F is repealed.”
Lord Rotherwick
My Lords, as an instrument-rated private pilot I have been aware for some time that the carriage of an obsolete radio navigation system is still mandated by the Air Navigation Order. Technology moves on: automatic direction-finding, or ADF, equipment was developed in the middle of the last century and in the last two decades has been overtaken by more modern satellite-based and computer-controlled systems, such as GPS. Indeed, it is possible to purchase wristwatches with better navigational functions than those provided by ADF.
I have to revalidate my IR rating once a year, and to do this I fly in a plane with steam-driven instruments. I apologise to my noble friend Lord Trefgarne, whose plane had nothing but steam-driven instruments. Once a year, using this equipment I have to do an NDB.
The one thing that is interesting about an NDB, apart from the fact that it points roughly in the direction of the beacon that you are trying to track, is that in a thunderstorm it can be reliably trusted to point toward the thunderstorm and not the airport. It can do many other things. One will notice that at Oxford when landing on a one line procedure, as the plane crosses a railway track prior to landing, the needle of the NDB will deviate towards the train running across the track if one is so lucky as to fly over it. In short, it is not a particularly reliable instrument but it has served well over many years. However, there are better systems now.
Ground-based non-directional beacons, NDBs, are rapidly disappearing in the United States. About 100 a year go out and there are virtually none left. The associated automatic direction finding, ADF, equipment, mounted in an aircraft remains a legal requirement for instrument flight in controlled airspace, although some limited exemptions are in place. That absurdity makes some flights in modern aircraft that are not fitted with ADF of dubious legality. It is a grey area, despite having absolutely no implications for the safe and expeditious conduct of those flights, or indeed finding the solution for the navigation.
Noble Lords will be as fearful as many owners and operators of light aircraft that when the Government’s Clause 102 comes in, the CAA may be issuing fixed penalty notices like confetti to those who breach the ANO requirement. I am therefore proposing a simple new clause to repeal the relevant requirement in the Air Navigation Order 2009. I have put this point to the Government in the past and while accepting their suggestions and issuing guidance suggesting alternative navigational aids that might be acceptable as alternatives, the legal requirement remains. I understand that primary legislation is required to bring about the change and put the question beyond doubt. Indeed, that was the real reason I am told that nothing has come forward to date. They have been waiting for primary legislation.
This is the first suitable legislative vehicle to present itself, so I move my new clause confident that it will find favour with my noble friend the Minister. I accept that my drafting may not be up to the requirements of parliamentary counsel and am very happy to take advice from my noble friend who may wish to table a more elegantly drafted new clause on Report. In the mean time, I beg to move.
Lord Trefgarne
My Lords, I have some sympathy with my noble friend. He knows that very well. On the other hand, the regulations to which he refers and which he seeks to amend by virtue of this amendment are devised and overseen by considerable experts in this area. It would be a mistake to impose a requirement on the CAA by means of this amendment at this time. These matters should be left to the experts who are within the Civil Aviation Authority and the National Air Traffic Services. They are not all dinosaurs; they are very senior, distinguished, respectable and intelligent people. I am happy to leave it to them and I hope that my noble friend will feel so persuaded.
Earl Attlee
My Lords, I thank my noble friend Lord Rotherwick for putting forward this amendment. I can appreciate his desire to remove where possible unnecessary regulation and requirements on the aviation industry, which accords with the Government’s intentions on the red tape challenge. My noble friend has rightly drawn the Committee’s attention to whether there continues to be a compelling need for the mandatory carriage of automatic direction finding, ADF, equipment on some aircraft. I did a little research myself: I looked up ADF and it appeared to be Amsterdam Density Functional, which is,
“a Fortran program for calculations on atoms and molecules”.
I thought that that had got nothing to do with aviation and that I had therefore better stick to my notes.
My noble friend has a passion for ensuring that regulation is appropriate and that we take into account technical developments which can often make regulations out of date. The Civil Aviation Authority has advised that it agrees with my noble friend that the existing arrangements are no longer appropriate, given the recent progress in navigational equipment. I am therefore pleased to learn that the industry now benefits from some alleviation in a general exemption issued by the CAA.
I agree with my noble friend Lord Rotherwick that this matter is worthy of further investigation. It is of course an important safety issue and I am sure that the Committee will agree that it needs a proper and thorough safety assessment before we could remove this requirement. A meeting between my noble friend and the Civil Aviation Authority may be the first step to considering how best to proceed, including an assessment of if and when it might be possible to amend the Air Navigation Order. That would be a more suitable approach than through this Bill, as pointed out by my noble friend Lord Trefgarne. If my noble friend agrees, I would be happy to make the necessary arrangements. I note that my diary is already littered with protected dates for such a meeting with my noble friend. Therefore, I hope that my noble friend will withdraw the amendment at the appropriate point.
Lord Trefgarne
My Lords, just before my noble friend withdraws his amendment, perhaps I may point out that automatic direction finding equipment operating on the medium wave is very useful when it is not being used for navigational purposes—for example, for listening to the test match. The noble Lord may or may not use that in consideration.
Lord Rotherwick
I am very grateful for the kind words of my noble friend the Minister and for his offer, which of course I should like to take up. I do not think that there is more to be said than that. I also thank my noble friend Lord Trefgarne who seems to be a little concerned about my amendment. I hope that his noble Dove, which is now out at grass, and its wonderful array of steam driven instruments were being used for the right reason and that he was not listening to the test match as he was making an instrument approach. I know that he has not been in a cockpit for some time but if he would like to come and see a new cockpit, I would be delighted to take him along, although it might come as a shock. I beg leave to withdraw the amendment.
House of Lords
Death of a Member: Lord Marshall of Knightsbridge
The Lord Speaker (Baroness D'Souza)
My Lords, I regret to inform the House of the death of the noble Lord, Lord Marshall of Knightsbridge, on 5 July. On behalf of the House, I extend our condolences to the noble Lord’s family and friends.
Environment: Leafleting
(11 years, 10 months ago)
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Lord Clement-Jones
To ask Her Majesty’s Government whether they will review the impact of restrictions on leafleting under the Clean Neighbourhoods and Environment Act 2005 on cultural and community events.
The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord Taylor of Holbeach)
My Lords, the Environmental Protection Act 1990 was amended in 2005 to enable local authorities to control litter from free literature. If a litter problem exists, authorities may introduce controls in designated areas to make it an offence to distribute material without consent. Exemptions exist for political, charitable or religious purposes. Defra has no plans to amend this legislation. Authorities should work with the community and local businesses to minimise litter problems before imposing restrictions.
Lord Clement-Jones
My Lords, over a third of councils now restrict leafleting and some charge exorbitant amounts for a licence. The Minister will be aware that many local theatres and clubs have been very badly affected by these restrictions, with dramatic reductions in their audiences. Should this traditional civic freedom not be protected? Will the Government consider introducing a new exemption for cultural and creative activities, and not treat these leaflets as no more important than a crisp packet or burger wrapper?
Lord Taylor of Holbeach
I understand the noble Lord’s interest in seeking to preserve community arts and activities but I emphasise that this is a discretionary power that I would expect local authorities to apply in any way they wish, even within a particular zone. Local authorities can give their consent to any group or any event at any time.
The Earl of Clancarty
My Lords, will the Minister accept that even in this age of social networking, as the evidence suggests, there is no substitute for person-to-person contact with the public that leafleting affords for neighbourhood arts and community events, and that the need to obtain a licence is simply too costly for many venues and small organisations, as well as being ludicrous red tape?
Lord Taylor of Holbeach
I cannot agree with the noble Earl. This is up to local communities to decide. They can determine the balance between propagandising events and social activities and their own interest in trying to prevent litter and, to some extent, being bothered by people handing out leaflets.
Lord Clark of Windermere
My Lords, has the Minister seen the increase of small posters advertising functions dotting our roadside, which many of us regard as litter, and has he had any consultations with the police as to the road safety aspects of these many small posters?
Lord Taylor of Holbeach
No, I have not but fly-posting is a problem dealt with by the Localism Act that we passed last year. The noble Lord makes an interesting point, but election posters spring to mind as being the most obvious things that one sees on lamp posts.
Lord Naseby
My Lords, while I imagine the House has sympathy with my noble friend’s overall answer, nevertheless, the last review was 2009. Since then a great deal has happened locally on the ground, and in some parts of the country there are substantial restrictions. Maybe the time is coming for another review.
Lord Taylor of Holbeach
I think my noble friend has to come to terms with the localism issue. In the end this is up to local authorities to determine. I believe in localism and local decision-making. Local communities elect their local authorities to take care of such matters. It is not for central government or Parliament to determine.
Lord Foulkes of Cumnock
It might be stretching it just a little to call it a cultural and community event, but there was a very important event in south-west London yesterday and I know that all the litter has been cleared up since then. I wondered whether it would be appropriate for the Minister to take this opportunity to congratulate Andy Murray on a tremendous effort—an effort of which everyone in the United Kingdom, not just Scotland, should be really proud—and to wish him one better next time round.
Lord Taylor of Holbeach
I am delighted to be able to join in the noble Lord’s congratulations to Andy Murray. I was in the air during this particular tournament on the way back from a ministerial conference—
Lord Taylor of Holbeach
So I am afraid I missed all the excitement and only shared the disappointment that the whole House felt at the result.
Lord Swinfen
My Lords, can my noble friend give any indication of the costs to local authorities of clearing up litter?
Lord Taylor of Holbeach
Yes, I can give a clue in that street cleaning in the years 2010-11 cost £863 million.
Lord Brooke of Sutton Mandeville
My Lords, is my noble friend aware of the irony towards which he is leading us whereby local authorities will be castigated as being philistine because they intervene on cultural leaflets when recent archaeology demonstrates that the philistines were actually very civilised people?
Lord Taylor of Holbeach
I am sure that they were, and far be it from me to suggest that any behaviour by a local authority is philistine.
Lord Skelmersdale
My Lords, can the Minister give us any update on dissolvable chewing gum, which I gather has been invented, as chewing gum is the most horrendous litter problem on our streets?
Lord Taylor of Holbeach
I am pleased to say to my noble friend that I am having a meeting with Wrigley this afternoon. If I had had it last week, I could give my noble friend an answer to his question—none the less, I hope that he is reassured that this matter is under control and I will stick to the solution.
Passports
(11 years, 10 months ago)
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Lord Roberts of Llandudno
To ask Her Majesty’s Government what are their intentions regarding the future of passport personal interview offices.
The Minister of State, Home Office (Lord Henley)
My Lords, the interview forms part of the identity authentication process for first-time adult passport applicants and provides a deterrent against fraud. There are no current plans to alter the existing network of passport personal interview offices.
Lord Roberts of Llandudno
I thank the Minister for his response. Does he agree that, when we have had 1.5 million interviews in the past five or six years and only 12 rejections, there is something wrong with this legislation? Does he also agree that it might be an opportunity for those involved with personal passport interviews and the UK Border Agency to talk together, and that some of the personnel and resources in the personal passport interview process could be deployed to strengthen the work of the UK Border Agency?
Lord Henley
My Lords, I cannot confirm the precise figure that the noble Lord cites, but I can confirm that there are something of the order of a quarter of a million interviews a year. The noble Lord is right to say that very few are declined, but it is interesting to find that possibly about 1,000 people a year decide not to come to an interview when asked to do so. That might imply that their application was not quite as straightforward as it might have been. We think that these interviews are an important part of the authentication process, as did the previous Government, who brought this process in in 2006. As I said, we have no plans to change matters.
Baroness Royall of Blaisdon
My Lords, I am sure that all noble Lords will have read in the press over the weekend speculation about the Prime Minister’s views on student visas. Can the Minister give us any insight into how thinking is developing in this area?
Lord Henley
My Lords, I fail to see what that has to do with the Question on the Order Paper, which, as the noble Baroness the Leader of the Opposition will know, is about passport personal interview offices. I recommend that she does not believe everything that she reads in the press.
Lord Storey
The Minister will be aware that when you apply for a passport you have to have it countersigned by “a professional”. In my 30 years as a head, I have probably done 100 of these. No one has ever checked whether I am the person I am supposed to be. Can the Minister tell us how many people who countersign those passports are checked up on?
Lord Henley
I cannot give my noble friend a precise answer, but I will certainly make sure that the appropriate checks are made on him before he signs any future applications to ensure that he is the noble Lord he purports to be.
Lord Roberts of Llandudno
My Lords, I return to the Question. What has been the cost of these 1.5 million interviews? Is it true that it has been in the nature of a third of £1 billion? Is it not time that we looked at this situation?
Lord Henley
My Lords, there is a cost. That is why we made changes to the number of interview offices. As a result of that restructuring, we are achieving a saving of some £7.81 million a year. As I said in answer to the original Question, they are a very important part of the authentication process.
Lord Reid of Cardowan
In view of some of the comments that have been made, can the Minister confirm that one of the fastest-growing crimes in this country is based on identity theft and that, in the midst of identity theft, one of the largest areas is the theft of people’s passports as an entry to identity, which then leads to further crimes, running from intervention in personal details through to bank accounts and right up to terrorism? While we are reminding ourselves of the costs of this, let us remind ourselves of its benefits as well.
Lord Henley
The noble Lord makes a very valid point, and I suspect that he was Home Secretary at the time these changes were made in 2006. We support those changes, we stick by them and we have no plans to make any further changes.
Eurozone
(11 years, 10 months ago)
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Lord Dykes
To ask Her Majesty’s Government when they next intend to discuss the plans for a full fiscal, monetary and banking union for the eurozone at forthcoming meetings of the European Union Economic and Financial Affairs Council and the General Affairs Council.
The Commercial Secretary to the Treasury (Lord Sassoon)
My Lords, the June European Council discussed a report by the four presidents on strengthening economic and monetary union. They will conduct further work and report back to the European Council in December with an interim report in October. There is likely to be discussion on aspects of these issues in a number of different fora before and after the December report.
Lord Dykes
I thank the Minister for that Answer. I congratulate Her Majesty’s Government on their strong official support for the eurozone summit agreement success, in stark contrast to the negative carping of some Tory MPs and MEPs and of a few voices in the Christian Social Union in Bavaria.
Lord Sassoon
I am grateful to my noble friend for confirming the success of the recent European Council, a Council which confirmed among other things that the single market had to be considered in the context of fiscal union, which brought important parts of the new EU patent court to London, and which considered a raft of other growth-related matters.
Lord Bilimoria
My Lords, will the Minister confirm that the Government keep pushing the eurozone countries to go in for more fiscal and monetary union and yet do not seem to accept that that cannot take place unless there is a sovereign union in the way that there is in the United States of America or a country such as India? Why do the Government not accept that, and why do they keep encouraging the eurozone countries to pursue more and more fiscal and monetary integration?
Lord Sassoon
My Lords, I am pleased to say that no encouragement is now needed from the UK. The paper by the four presidents—the presidents of the European Council, the European Commission, the European Central Bank and the Eurogroup—set out what they believed to be appropriate in relation to fiscal and monetary union. That work will continue and the UK is participating in the discussions in and around those reports. We are being fully supportive of those efforts.
Lord Pearson of Rannoch
My Lords, would it not be wise to ask the people of Germany and the other eurozone donor nations whether they agree to be burdened with the debts of Greece, Portugal, Spain, Italy and others, which even the Germans and the other countries cannot afford for long?
Lord Sassoon
My Lords, I thought I might have been asked a question about a UK referendum, instead of which I get a question about whether the German people will be consulted. I think I will leave that to German politicians to answer.
Lord Flight
My Lords, does the Minister agree that a crucial ingredient in a successful fiscal and monetary union is transfer payments between the more prosperous to the less prosperous, as occurs within the US and even within the UK?
Lord Sassoon
Indeed, that is part of the remorseless logic of what an economic and fiscal union normally brings with it.
Lord Davies of Oldham
My Lords, does the LIBOR scandal and other financial scandals strengthen or weaken Her Majesty’s Government’s plans for exceptional treatment in Brussels? Do we not have a common interest in a properly regulated single market? Would not Her Majesty’s Government, particularly the Prime Minister, be better involved in discussing these matters rather than sulking on the sidelines?
Lord Sassoon
My Lords, the UK is very much involved in the discussions in Brussels. That is why, as I have already said, we secured important parts of the EU patent court coming to London. That is why we recently secured a new British head for the European Bank for Reconstruction and Development. We are at the table and that is where we intend to stay.
Lord Pearson of Rannoch
My Lords, with the leave of the House and as there are some minutes on the clock, instead of going along with this madcap, dangerous scheme of European financial integration, why do the Government not encourage the eurozone countries to abandon the incurable euro and go back to their own currencies, each with their own interest rate and exchange rate? Would that not be less painful and expensive than to go on trying to save the wretched thing?
Lord Sassoon
My Lords, as we have discussed many times, 40% of our exports go to the eurozone. It is our most important trading bloc. The priority has to be to strengthen the eurozone countries. That is what they want to do and that is what we want to see them do and we must help them to achieve that.
Lord Harrison
The United Kingdom often blames the eurozone for the problems with the economy as it is being run by Her Majesty’s Government here. Why do we not do more to help? Does the noble Lord, Lord Sassoon, agree with Mr David Lidington, who stated in replying to the Select Committee’s interrogation last week that he welcomed more Europe if it meant the implementation of the full ambit of the single European market?
Lord Sassoon
On the question asked by the noble Lord, Lord Harrison, about the cause of the weaker growth in this country, the Office for Budget Responsibility and other commentators have identified the eurozone as a major source of threat to our growth and of weakness. Significant parts of the eurozone are plainly now in recession. I agree with my right honourable friend David Lidington about the need for more Europe in many areas including, particularly, more completion of the single market. That is why it is important that the four-presidency proposal referred to in the Council conclusions at the end of June will include,
“concrete proposals on preserving the … integrity of the Single Market”.
That is critical, as are the many growth initiatives included in those conclusions.
Lord Lawson of Blaby
My Lords, we all wish to see a successful European economy, but is my noble friend not aware that the so-called success of the European Council a fortnight ago has already disappeared, the financial markets have put the interest rate on Spanish sovereign debt back to where it was before, nothing was achieved, nothing can be achieved in this way and the sooner that it is realised that this project, however well intentioned, is a terrible mistake, the better?
Lord Sassoon
I certainly agree with my noble friend that we delude ourselves if we think that words coming out of one meeting of European leaders are going to solve all the problems. Part of the problem seems to have been a belief that the crisis can somehow be dealt with by fine words. I believe that in the underlying work— whether on the two pack, the six pack, or the intergovernmental treaty—there is the beginning of a construct of great significance to underpin the eurozone.
Lord Hunt of Kings Heath
My Lords, would the Minister be prepared to share with us his prepared text on whether there should be an in/out referendum on our membership of the EU? If the Government are holding out the prospect of a referendum in relation to Europe, can he tell me why the Government refuse to have a referendum on the future of your Lordships’ House?
Lord Sassoon
I realise that I walked straight into this one. Now is not the time for an in/out referendum on Europe. Once Europe has settled all the matters that we have talked about, we can look at our relationship with Europe in the round. As for referenda on other matters, the legislation is starting in another place today and, no doubt, it will get here in due course.
Lord Teverson
Given that the eurozone is very likely to survive in a position very similar to its position at the minute and that it will probably move forward to a banking union and closer economic and fiscal union, what strategic preparations are the Government making in the longer term to make sure that Britain is not marginalised once we get through the existing crisis, however long it takes?
Lord Sassoon
My Lords, I think the most important thing is that we continue to be, as we are, constructively at the heart of all the discussions on these matters. As I have already said, there have been some significant achievements, as evidenced in the conclusions of the June Council, and that is the basis on which we have to continue our discussions. I would not think about it in the contingency planning terms that my noble friend portrays. We are there at the heart of the discussions and are continuing to focus our partners on growth and the completion of the single market.
EU: Interpretation and Translation in Criminal Proceedings
(11 years, 10 months ago)
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Baroness Coussins
To ask Her Majesty’s Government whether they expect to be in compliance with European Council directive 2010/64/EU, on the right to interpretation and translation in criminal proceedings, by the agreed implementation date of 27 October 2013.
Baroness Coussins
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 vice-president of the Chartered Institute of Linguists.
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, the Government will take the steps necessary to ensure that the UK is compliant with the EU directive in good time for its implementation date.
Baroness Coussins
My Lords, I understand that the company that the Government have, under the framework agreement, contracted to provide services to courts and the police is supplying performance data to the Government which suggest that it is doing a good job. However, these figures come without any independent verification or audit and tell a very different story from the complaints we hear daily from judges and others about the failure to supply interpreters, or the sending of unqualified people with no experience of simultaneous interpreting and some people who were simply incompetent—in one case not understanding the difference between murder and manslaughter. Does the Minister agree that the UK is at risk of expensive legal action over non-compliance with the directive, particularly Article 5 about the quality of the service, and that we should therefore review the framework agreement now?
Lord McNally
No, my Lords, I do not think we are in danger of non-compliance. As I said in my Answer and, as the noble Baroness indicated, there are some months to go before the directive comes into play. In the mean time, the Ministry of Justice has a massive interest in making sure that Applied Language Solutions provides the quality and service for which it is contracted. We are making every effort to make sure that that happens.
Baroness Butler-Sloss
Is the Minister aware of the extent of disruption and delay to criminal trials as a result of the serious inadequacies in court interpreting? Not only does it lead to considerable cost but concerns have been raised by judges across the country, particularly in London, Birmingham and Leeds.
Lord McNally
My Lords, there have been individual complaints about performance and there was undoubtedly a very poor start to this contract. However, there have been improvements and we are talking about a system with some 800 requests a day for such interpretation. In the first quarter of its operation there were 26,000 requests in 142 languages. One has to get complaints and performance into perspective, although there is no doubt that a lot was left to be desired in the performance of the contract in its early stages.
Lord Harrison
Has the Minister revised the original estimate of a £12 million saving as a result of implementing the framework agreement because of all these additional costs? Have we not arrived at a situation that is no longer just succumbing to teething problems but is wholly poorly structured in the first place?
Lord McNally
I do not agree with that. As I said, there were problems at the beginning of this contract but the performance has improved dramatically. I presume that the original estimate of a £12 million saving in this first year will probably not be achieved. That is common sense but this is not a solution for just this year. It is a long-term solution that we hope will, once it is bedded down, give the service and quality required.
Baroness Sharples
Can my noble friend say how many languages each interpreter is expected to speak?
Lord McNally
No. However, there are a number of interpreters who speak more than one language. At the moment, there are about 1,500 interpreters under contract and they are equivalent to about 3,000 interpreter persons, which means that many of them speak two or more languages.
Baroness Scotland of Asthal
My Lords, will the noble Lord tell the House whether the nature, number and extent of complaints from the courts has gone up or down since the change was implemented? If it has, as we believe, gone up, what do the Government intend to do about it?
Lord McNally
Has it gone up since the scheme was implemented? Yes, it has, because the scheme implements a single supplier that will pay interpreters less than they were being paid on an ad hoc basis. That combination of greater discipline in where and when interpreters are hired and at what fee is not likely to be welcome to the interpreting community. That I understand. But it was the previous Administration who initiated an inquiry into the efficiency and effectiveness of the old interpreter system. We have readily acknowledged that this new system has had teething problems, but there is no ministerial interest or MoJ interest in having questions such as this time and again about performance. The supplier has contracted to a high-quality performance, and we intend to keep it to that.
Lord Anderson of Swansea
How is the performance of that supplier adequately monitored? Is there an independent monitoring system?
Lord McNally
There is not an independent monitoring system—there is a client. We are the client, and we do not intend to pay good money for a shoddy service. As I have just said, as the client we brought this in because we intended to try to make substantial savings for the taxpayer on a system that we believed was slipshod and expensive in its running. When the new system gets bedded down, we hope that it will give high quality. The monitoring is done by the department concerned, the MoJ, and we intend to carry out our responsibilities to make sure that the taxpayer gets value for money.
Baroness Thomas of Winchester
My Lords, I understand my noble friend’s difficulties, about which he has been telling the House, with so many languages having to be covered. Will he tell us how many cases have had to be rescheduled because the right interpreters were not there, and whether that is being monitored by his department?
Lord McNally
There has always been the problem of interpreters not being there, or the wrong interpreters being there. This is not something that has happened in the past 12 months. Indeed, one reason for bringing in a single supplier on a new contract with very precise contractual obligations was to try to remove that. I repeat that providing around 100,000 interpreters in 142 different languages is something of which our justice system should be rather proud. However, once you operate on that scale across that range of expertise, there will be mistakes, hiccups, wrong directions and wrong turn-ups. On the whole, we expect the contract to produce at least 98% performance success, and we intend to keep the contractor to that.
Designation of Features (Appeals) (England) Regulations 2012
(11 years, 10 months ago)
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Lord Taylor of Holbeach
That the draft regulations and orders be referred to a Grand Committee.
Legislative Reform (Annual Review of Local Authorities) Order 2012
(11 years, 10 months ago)
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Baroness Garden of Frognal
That the draft order be referred to a Grand Committee.
Justice and Security Bill [HL]
(11 years, 10 months ago)
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Lord Butler of Brockwell
Lord Butler of Brockwell
My Lords, I will speak also to Amendment 2. These two amendments are in my name and that of my noble colleague on the Intelligence and Security Committee, the noble Marquess, Lord Lothian, as well as those of the noble Baroness, Lady Smith of Basildon, and the noble Lord, Lord Beecham. I can introduce the amendments quite briefly, and I hope that we are pushing at an open door. It is, I think, common ground with the Government that the Intelligence and Security Committee will serve Parliament and the public better if it is made clear that it is indeed a committee of Parliament and not a creature of the Government. Since its creation in 1994 the committee has played an independent part, but because the committee is appointed by the Government, it has often been difficult to convince outside observers of its independence. I again pay tribute to the committee, as I did in my Second Reading speech to earlier members of the committee. It is now common ground that it has behaved in such a way that it has come of age and its independence and duty to Parliament can be made clear by adding the words that it is indeed a committee of Parliament. I hope that that is agreed with the Government.
Amendment 2 would have the effect that the Intelligence and Security Committee would enjoy the same rights and privileges as a departmental Select Committee in respect of having parliamentary privilege. Perhaps I may just explain that. Because the Intelligence and Security Committee is created by statute and is not a Select Committee of Parliament, it does not automatically receive the same rights and privileges as, for example, a departmental Select Committee. That is the purpose of writing in the Bill that it should have parliamentary privilege. This issue is important, because the committee’s work has to be conducted in confidence and those who give evidence to it, including not only the intelligence agencies but also others, must have confidence that the security of their evidence will be protected. This is necessary not only for future evidence but for past evidence, because in this litigious age there needs to be assurance that evidence previously given cannot be sought to be disclosed as evidence in any proceedings. To make that clear, this amendment proposes that privilege should apply to the proceedings of the Intelligence and Security Committee as it does to Select Committees of Parliament.
Lord Campbell-Savours
Is there a precedent for this form of committee anywhere within the constitution?
Lord Butler of Brockwell
There are indeed committees that are set up by statute. I can give the noble Lord three examples: the Ecclesiastical Committee of Parliament, the Public Accounts Commission and the Speaker’s Committee on the Electoral Commission. Those are all similar committees which have been set up by statute but are not Select Committees.
The Marquess of Lothian
My Lords, I rise briefly in support of the noble Lord, Lord Butler of Brockwell, on both amendments, to which my name is also attached. I do so because I am also a member of the Intelligence and Security Committee. I was first appointed to the committee in 2006 and therefore have some years of experience of it.
In looking at the first amendment I feel very strongly that we need to make it clear that this is more than just a committee. The problem that we have faced in terms of credibility until now, as the noble Lord said, is that we were a committee created by statute but appointed by the Prime Minister and reporting to the Prime Minister—who could report to Parliament in due course. Although we exercised what we thought was the maximum independence possible, the public perception was that we were actually a creation of, and therefore a tool of, the Executive. In that regard, less confidence was put in the reports that we produced. My belief has been that if this committee is to work properly—which is what I believe the Bill is about now—we need to make it clear that this is not just a committee hanging in the ether but a committee of Parliament: it is composed of parliamentarians, exercises its oversight of the intelligence agencies on behalf of Parliament and reports to Parliament, although the Prime Minister will ultimately have a veto over appointments and also have access to the reports that we produce. I believe that the simple addition of the words “of Parliament” will make it clear that what I am looking for can be achieved.
I have been told in the past that there may be difficulties about the words “Committee of Parliament”. I am a simple Scottish lawyer, and I have worked very hard to understand what these possible difficulties can be given that, as I said at Second Reading, a committee of Parliament is what we are effectively becoming. I hope, therefore, that the Government will accept that, because I think that the committee’s credibility in exercising parliamentary oversight of the intelligence agencies is an important part of our developing constitution.
I turn briefly to the second amendment spoken to by the noble Lord, Lord Butler of Brockwell. I have very little to add to what he said other than this. He talked about the need for those who give evidence to the Committee to be able to do so in the knowledge that their evidence will not suddenly be made public. That is a very important part of the way in which the Intelligence and Security Committee works. It is particularly important in one respect. When the intelligence agencies give evidence to us they will naturally take account of how secure their evidence will be. If they feel that that evidence is not secure then they quite simply will not give us that evidence. We rely on their confidence in us to ensure that they give us the maximum amount of information upon which we can exercise our oversight. Unless we have the protection which is the purpose of the second amendment I believe that that confidence will not be there. I hope, therefore, that the Government will accept both amendments.
Lord Campbell-Savours
My Lords, I have reservations which I will deal with when I speak to my amendment arguing the case for a Select Committee to take on these responsibilities. Parliament is being required to approve wording which suggests that this committee is controlled by Parliament, but without recognising what the Justice and Security Green Paper of October 2011 says at paragraph 3.19. It states:
“However, under such arrangements”—
that is, the arrangements of a Select Committee—
“the Government would clearly have no veto on publication of sensitive material”.
I repeat:
“no veto on publication of sensitive material”.
In other words, the provision is being introduced as a way for the Government to secure control outside of Parliament, through this half-measure of a committee, over the publication of sensitive material. My view is very simple. If they want to do that, let it be done through a full Select Committee structure. That is the substance of my amendment which will come later.
Lord King of Bridgwater
My Lords, if I may intervene in this discussion, I seek to bring to it the “veneer of experience”—to quote the Deputy Prime Minister, as the noble Baroness on the Front Bench did on Second Reading—that this House can contribute on these matters. I am delighted to follow the noble Lord, Lord Campbell-Savours, who is an excellent member of the committee that I had the privilege to chair for a number of years. In listening to this debate I am absolutely sure that we have reached the time to move forwards. However, I am torn between Amendment 1, the significance of which I have to admit I do not fully understand, and Amendment 3, which proposes moving to Select Committee status. Early in our committee’s discussions we considered the role of a Select Committee, and—if I can stop the noble Lord mucking up my papers—I shall find a quote from a report that our committee produced in 1998 or 1999. We said:
“There are arguments for and against such a status, and we have not as yet formed a view on the issue … Even if thought desirable, however, such changes would take time to introduce, and could alter significantly the structure of relationships between the Committee and the intelligence community”.
I think that, as time has moved on, we have established that sort of relationship.
It is important to remember where we have come from. Although the noble Baroness, Lady Manningham-Buller, rightly points out that the agencies were not resistant to the establishment of a committee—that certainly matches my own impression, and she knows the situation much better than I do—many serving in the agencies wanted not only an Intelligence and Security Committee but, in their own interest, for that committee to be as thorough and active as possible so that it could carry credibility. As one of the big problems facing the agencies was false allegation and rumour, an independent and credible body would be seen to address and deal effectively with those issues—in secrecy if necessary, and without disclosure of operational information or other evidence, some of which might come from other countries.
My feeling at that time was that it was critical that we should establish credibility, because although many of the agencies were in favour of the committee, others were nervous about whether parliamentarians could be trusted, whether information would be secure or whether it would be leaked—all the problems that one might advance. There was a lot of hostility. I recall that, way back in the early 1980s, Jonathan Aitken was an original proposer of an intelligence and security committee, and he was interrupted by an old colleague, Ray Whitney—a distinguished former member of the foreign service, and a Member of Parliament at the time—who said that whatever one says about the Senate intelligence committee, there is general agreement that it has destroyed the American intelligence capability. That was an exaggeration of the sort of strong feeling common at the time. Having had the privilege of serving under the noble Baroness, Lady Thatcher, who was not the first outspoken advocate of this particular approach, I can attest that there was a lot of resistance to it.
When our committee started out it was very important to establish its credibility. I felt at that time—and members of the committee shared this view; I think that the noble Lord, Lord Campbell-Savours, was a keen advocate of it—that it was more important to establish the trust of the agencies, to make sure that they were forthcoming with information, because they could switch us off at any time. After all, we were into the “don’t-know don’t knows”, so establishing that trust was important. I believe that that trust, confidence and relationship have been established now—more than established, I hope, given the passage of time. I am therefore very torn between these amendments, Amendment 1 or 2, which propose setting up a Committee of Parliament, or whether there is not an argument for going straight to a Select Committee. I have learnt something today from the noble Lord, Lord Butler. After spending a brief period of 30 years in the House of Commons, I had not understood that the PAC was set up under a different arrangement. One learns something every day. It sounds attractive for the IC to be on the same wavelength.
Lord Butler of Brockwell
It is confusing but what is set up under statute is the Public Accounts Commission, not the Public Accounts Committee.
Lord King of Bridgwater
I have now unlearnt something which I thought I had learnt, and I am grateful to the noble Lord for his intervention. I certainly think that when we come to Amendment 3 there are strong arguments for moving in that direction, provided that the arrangements can be established to ensure security of intelligence. I think that the noble Lord, Lord Campbell-Savours, was with us when we went to Washington. One is struck by the number of Senate committees there. The Senate Select Committee on Intelligence is held in a totally secure room, and there are badges for all 19 government agencies that the committee oversees as part of its various responsibilities. It is a completely different facility. If, as I understand it, the proposal is that the facilities will now be provided by Parliament, as opposed to the separate facilities that existed in the Cabinet Office, it will be necessary to think about what sort of facilities will match up to the requirement for total security and the proper safeguarding of intelligence.
Baroness Smith of Basildon
My Lords, one thing that the debate has shown so far—and this will also apply to the debate on the next amendment—is that the Government have not yet done enough to satisfy your Lordships that the arrangements for independence for the committee are adequate. This debate has been interesting. I think I understood the noble Lord, Lord King of Bridgwater, correctly when he said that he was quoting me quoting the Deputy Prime Minister on the “veneer of expertise”. I in no way associate myself with that comment, nor with the one that I am told the Liberal Democrat spokesperson from the House of Lords made on TV today—that we are a House full of dead-beats and has-beens. I think that this debate will prove how wrong both those comments are.
The arrest just last week of alleged Olympic terror plot suspects was a clear reminder of the vital and largely hidden work that the intelligence and security services undertake. Part of the discussion that we are having now is based on the fact that the strength and health of our democracy in the UK depends on a very fine balance between the Government, who are empowered to protect our national security, and the strength, credibility and authority of the institutions that have oversight of that power.
I suspect that during the course of Committee the majority of debate will understandably be reserved for the changes proposed to the judicial element of that oversight. However—and I make this point very strongly—our system of democracy is, unlike that of the USA, based on the concept of parliamentary sovereignty. That means that Parliament, as representative of the public, is the ultimate check over other government institutions—not the Prime Minister or the Government. A powerful security service demands equally powerful and independent parliamentary oversight, and the Intelligence and Security Committee is a very important plank in this oversight mechanism. However, it is widely recognised that, while the committee has in some ways developed its remit in response to the changing nature of government intelligence and counterterrorism activities, the law has not kept pace with that change.
The committee was set up in 1994. We saw in its 2009-10 annual report that the committee itself recognised that reform was necessary to maintain public confidence in its oversight function. It asserted that corporate knowledge of the committee’s procedure within government had been lost over time and that in some cases this had led—this is a serious point—to misunderstandings about the statutory independence of the committee and its work and about the nature of the relationship between the committee and the Prime Minister. The committee has suggested a number of reforms which I think we will hear more about and discuss today.
The Minister of State, Home Office (Lord Henley)
My Lords, I think that the final point made by the noble Baroness, Lady Smith, on the Bill of Rights is posed to the movers of the amendment, and I will leave them to respond to it when the noble Lord, Lord Butler, winds up the debate.
My noble friend Lord King said that he had been described as having a veneer of experience in these matters. All four speakers before the noble Baroness and me had far more than a veneer of experience in these matters. All four have served on this Committee or have been chairman, like my noble friend, and we are very grateful that they bring their expertise to this because it is a matter that requires a great deal of discussion and consideration by us.
I start by setting out what changes the Bill proposes to make to the ISC’s status. The new ISC will be appointed by Parliament and will report to Parliament as well as to the Prime Minister. In parallel with the Bill, the Government intend that the ISC will be funded by Parliament and accommodated on the Parliamentary Estate, and that its staff will have the status of parliamentary staff.
As both my noble friend Lord King and the noble Baroness, Lady Smith, have implied, the current ISC has been criticised for being a creature of the Executive—I think that was the word that the noble Baroness used. The intention of this measure is that the ISC should be brought much closer to Parliament. It will be a committee of Parliament created by statute in the same way as other bodies are, as listed by the noble Lord, Lord Butler, in response to the noble Lord, Lord Campbell-Savours.
The noble Lord, Lord Butler, said there were three examples. The Speaker’s committee for IPSA, created under Section 1 of the Parliamentary Standards Act 2009, is another. Like those other statutory committees of Parliament, the ISC will not have all the attributes of a departmental Select Committee. The question of whether such a committee would be the appropriate route to go down is another matter. We will deal with it when we debate Amendment 3, which the noble Lord will speak to immediately after this group.
The two amendments that we are considering concern the status of the ISC. The first would change the name of the Intelligence and Security Committee to the Intelligence and Security Committee of Parliament. Some noble Lords will be aware that my right honourable friend the Lord Chancellor and Justice Secretary has written to the chairman of the ISC, Sir Malcolm Rifkind, stating that in principle the Government support such a change, or one that would have a like effect of making clear in the Bill the parliamentary character of the ISC. However, before we could accept the amendment that noble Lords proposed and which the Opposition support, we would need to be very clear that it would be the best means to achieve this end and what all the implications of such a change would likely be, including the very tricky issue of parliamentary privilege. Any change that has the possible impact of increasing the risk of unauthorised disclosure of sensitive information should be very carefully thought through.
My noble friend Lord Lothian described himself as a simple Scottish lawyer. I always get rather worried when noble friends describe themselves as simple, Scottish or a lawyer, and when all three come together I am even more alarmed. However, the amendment could affect the ISC’s status for other purposes. For example, it could bring the ISC within the ambit of the Freedom of Information Act 2000 by making it part of the House of Commons and the House of Lords for the purposes of the Act. It may also change the ISC’s status under the Data Protection Act 1998, as Section 63A of the Act may become relevant, making the corporate officers of the House of Commons and the House of Lords the relevant data controllers for the ISC’s data-processing activities. I put it to my noble friend—the simple Scottish lawyer—that those consequential effects need to be examined in some detail.
It has been very helpful to debate the issues raised by the amendment. I hope I have gone some way to explaining why I am not in a position at this stage to say anything more. Certainly I can say that the ISC chairman, Sir Malcolm Rifkind, has responded to my right honourable friend’s letter, and that the Government would welcome further discussion with the ISC on this important issue.
The second amendment in the group deals with the very significant issue of parliamentary privilege and takes us back to the Bill of Rights. This is a matter that the House has considered on a number of occasions in recent years. The Government’s most recent consideration of the issue came in the Green Paper that was published in April this year. Noble Lords will be aware of the importance that privilege can play in the functioning of this House and of another place. Parliamentary privilege includes such fundamental concepts as the freedom of speech of Members of this House and of another place, and the prohibition on courts questioning proceedings in Parliament. Both Houses and their Select Committees benefit from that privilege. Freedom of speech in the context of the Bill of Rights is just one aspect of parliamentary privilege.
At present the Intelligence and Security Committee is a statutory committee of parliamentarians. However, it does not at present benefit from that parliamentary privilege. The amendment would provide that the proceedings of the ISC would be proceedings in Parliament for the purposes of Article 9. That would ensure that the committee’s proceedings were covered by parliamentary privilege. The question posed by the amendment is about the consequences of privilege attaching to the proceedings of the ISC, which would be that criminal or civil proceedings could not be brought in respect of statements made by ISC members, or witnesses before the ISC, in the course of ISC proceedings.
Noble Lords may say that this makes very little difference because the ISC members are all parliamentarians and can benefit from privilege when participating in parliamentary proceedings. However, it would be different for a witness, who at present would not benefit from privilege. Other consequences would be that disciplinary proceedings against witnesses, based on statements made in ISC proceedings, would be barred as such proceedings would constitute a contempt of Parliament.
Noble Lords will understand from what I have said that there is a degree of sympathy for both amendments, and particularly the first, but more work needs to be done. I should be grateful if noble Lords accepted that and that it would probably be best at this stage to withdraw the amendments and to have further discussions, particularly in the light of the fact that my right honourable friend the Lord Chancellor has written to Sir Malcolm Rifkind about this and said that he is broadly content with the idea. However, as I have explained, we believe that more work is necessary. With that, I hope the noble Lord will feel able to withdraw his amendment.
Lord Butler of Brockwell
My Lords, I am grateful to the Minister for that reply and to the other Members who have taken part in the debate. Two clear points have come out of the debate that are agreed on all sides. First, the ISC should be able to fulfil its duties to Parliament as strongly as possible. It should be clear that it is a servant of Parliament and not of the Executive. That was the purpose of the first amendment.
We will debate in a moment the amendment tabled by the noble Lord, Lord Campbell-Savours, proposing that the ISC becomes a Select Committee, but, as I understand it, special safeguards are required for it, both in relation to appointments and in the nature of its reports: namely, that things that are genuinely secret should not accidentally be released in its reports. I think I am right in saying—this will no doubt come out in our next debate—that there will need to be a statute for that reason, so the statute will be necessary anyway. It would be difficult to apply those restrictions to a Select Committee of Parliament, but that will no doubt also come out in our next debate.
The purpose of the clauses in the Bill and of the amendments is exactly the same as the purpose that the noble Lord, Lord Campbell-Savours, is pursuing. I am very strongly in favour of Parliament’s effective control over the Executive. I have become more strongly in favour of that since I became a Member of Parliament rather than a member of the Executive. I believe in it very strongly, and I believe that of all the parts of the Executive, the security agencies need to be effectively controlled by people who are in a position to see and be trusted with information about what they are doing. So I do not think there is any difference about the ends.
The second thing is that witnesses to the ISC should have confidence in the security of the evidence they give. Again, I do not think there is any difference between us on that subject. As the Minister said, members of the ISC, as Members of Parliament, may be secure in that respect, but witnesses may not necessarily be so secure. If a situation arose in which the courts could question the proceedings in the ISC and enforce the revelation of evidence, the ISC would simply not be able to operate effectively. That is the purpose of seeking to apply in the statute that the ISC should have the benefit of parliamentary privilege as if it were a Select Committee of Parliament.
Again, it is clear from the Minister’s reply that the question here is about means rather than ends, and I entirely accept that those need to be carefully looked into and that the implications of the proposed amendments need to be carefully examined by those who are sufficiently expert to do so.
In the belief that our objectives in this are the same, that we are talking about means and not ends, and that the Government will now look at ways of achieving those ends, I am very happy to beg leave to withdraw the amendment.
Lord Campbell-Savours
“( ) The ISC shall be a Select Committee of Parliament.”
Lord Campbell-Savours
My Lords, I welcome this debate on an issue that I have pursued now for 14 years since 1998. As I foresaw the response that the Minister has given today—that he was unable to give undertakings on privilege—I asked for my amendment to be taken separately. He will now understand why I had it moved from the group containing Amendment 1.
I corresponded with and made direct representations to Prime Minister Blair and others in Downing Street over a number of years. I was supported in doing so by the overwhelming majority of Labour Members of the other House and members of other political parties, with whom I had conversations in the late 1990s. There was overwhelming support for the principle of a Select Committee. I do not believe that oversight is fully credible while the committee remains a creature of the Executive or some halfway house that lacks parliamentary privilege. Privilege is the central issue in this debate—this was raised in the debate on the previous amendment—and that is why I am driven down the Select Committee route.
The problem at the moment is that the committee considers its relationship with the Prime Minister more important to its operations than its relationship with Parliament. The Government’s proposal seeks to address that but, in reality, it will make little difference to the nature of the relationship. I strongly dissent from the view that this relationship with the Prime Minister is more important than the relationship with Parliament, and that is why I favour Select Committee status.
We live on the threshold of an era in which civil liberties and freedoms will be subjected to increasing pressure. In such conditions, one has to beef up systems of regulation, safeguard and oversight. Those systems need to command public support, confidence and trust. I do not believe that, despite the good intentions of its membership and the witnesses who come before it, the ISC, as a creature of the Executive, can possibly meet those tests. What is proposed will in reality make little difference.
The committee needs new and increased powers to call persons and papers and to communicate with other committees. There are times when the information that comes before the committee should, in certain circumstances, be referred to other Select Committees. I shall deal with that in later amendments. This would enable it to carry out its inquiries. It does not mean that security will be in any way breached because mechanisms could be introduced to ensure that that does not happen with the release of material.
It is already acknowledged that the committee needs the power to report directly to Parliament and the argument has been well rehearsed over the years. The ISC needs the power to take evidence under oath: Select Committees have that power. It would not be that it took all evidence under oath but it should have the power to do so. As I say, Select Committees have that power but the ISC does not.
Without going into any details, there are times when the committee might receive assurances on issues where, if those assurances were given under oath, the committee might have the confidence, with the approval of the Prime Minister, to make statements that would be extremely helpful during the course of public debate and in the exercise of reassuring public opinion.
The ISC needs the power to take evidence under privilege. Technically, if a person appeared before the committee today, he could libel another person because he would not be protected by privilege. The committee has none of the powers that are afforded to witnesses giving evidence to parliamentary Select Committees. Above all, the committee should have the power to hold witnesses in contempt if they deliberately mislead the committee, which is what happens in the Commons. If Parliament knew that the committee had the ability to take evidence under oath and to hold witnesses in contempt in the event that they were deliberately to mislead, it would substantially increase the credibility of any reassuring statement that the committee makes.
The arguments are not new. They have been rehearsed at length on a number of occasions in the past, most notably during the passage of the 1989 and 1994 legislation—we go back a long way in this discussion. Those supporting Select Committee status included the noble Lord, Lord Hattersley, then speaking from the Labour Front Bench, the future Secretary of State for Trade, the noble Lord, Lord Mandelson, and the future Minister at the Cabinet Office, now the noble Lord, Lord Cunningham of Felling. All made positive speeches in favour of Select Committee status. In 1989, the entire Labour shadow cabinet, including the shadow Home Secretary and Foreign Secretary voted for full Select Committee status and not a halfway house. I have a copy of the Division List and the entire Labour membership in the House of Lords at the time voted for Select Committee status. We are not arguing new principles today.
Some say that legislation is required if the decision is taken to accord Select Committee status, but that is not altogether clear, as the noble Lord, Lord Butler of Brockwell, was saying. It is argued by many that, although some tinkering with the law might be necessary, resolutions establishing the committee—effectively a Joint Committee—carried in both Houses with simple resolutions could cover all the functions of the committee.
I recognise that there is some opposition to the whole proposal. Some argue that the fact that the committee reports directly to the Prime Minister gives individual members of it additional clout, kudos, weight or importance in the political world. That was the view of some on the committee when I was a member. I strongly reject that view. Others argue that no way can be found to restructure the practices and the procedure of the Select Committee so as to ensure executive influence for reasons of national security over material that it may seek to publish. That is simply untrue. A resolution of both Houses could require that the committee sought the approval of the appropriate agency before reporting to the House. The resolutions could further provide that, in the event of a dispute arising between the agency and the committee over the publication of information or evidence in a report to the House, the matter at dispute could be referred to the Prime Minister for his decision and the committee could be required to comply with the decision of the Prime Minister. That is what I referred to during my Second Reading speech as the override.
If in unforeseen circumstances, the committee, or any member of it, were to threaten to breach the committee’s rules and procedure, as agreed by the House in these resolutions, it would always be open to the Leader of the House, on the instructions of the Prime Minister, to dissolve the entire committee or to remove any member of it on a resolution tabled on one day which took effect on the next. There are adequate provisions, although I shall argue on a later amendment that this power would need to be exercised with great caution.
I believe that Parliament could carry resolutions that make the committee as hermetically sealed as any structure that currently exists. We are told that such a committee could not be prevented from taking evidence in public session, if that were the wish of the committee. In response, I argue that a resolution of the House could introduce a general prohibition on the Select Committee taking evidence in public session—resolutions of the Commons can be carried to deal with the issue. It could further place a requirement on the committee to seek the permission of the appropriate agencies and the Prime Minister in conditions of dispute, if it wished to take evidence in public in particular circumstances. It is argued that although a Select Committee is neither more nor less likely than the ISC to leak, as a Select Committee it would have the right to publish reports in a way that could prove prejudicial to the interests of national security. A resolution of the House could introduce a general prohibition on the Select Committee publishing reports without approval. It could further place a requirement on the committee to seek the permission of the appropriate agency and the Prime Minister in conditions of dispute, if it wished to publish a report. Safeguards would be available for every eventuality in the event that it were to be created a full Select Committee of Parliament.
As prime ministerial appointees, members are currently responsible for reporting collectively to the Prime Minister. It is argued that such limited powers to report would not be possible if the committee were appointed by the legislature. There is no reason why the resolution of the House should not stipulate the procedure to be used in the publication of reports. It could require the committee to publish its reports subject to sidelining by the Prime Minister for reasons of national security, as currently happens.
It is also argued that a move to a parliamentary arrangement could lead to greater pressures on Ministers to be accountable as witnesses, with less emphasis on agency heads giving evidence. That argument is not supported by an examination of practices in some of the House’s other committees. In my 11 years on the Public Accounts Committee, Ministers never attended as witnesses. I am not advocating a prohibition on Ministers attending the ISC, but Ministers would be no more likely to attend a House Intelligence Committee than the ISC. With hearings being held in private, there will be no additional pressure on Ministers to attend. I believe that with the right membership, a parliamentary committee is as secure as the ISC. I reject the statement in the Green Paper as I said in an earlier intervention; if the right people are selected there will not be a problem.
I remind the Committee that this is the first real open debate we have had in Parliament on this issue in 14 years. I welcome this debate. We need now to grasp the mettle and not muck around with some interim or secondary arrangement. There is an expectation among colleagues that the system should work. We must be satisfied that the structure we create is going to work so that we have a system that is credible with the public.
The Marquess of Lothian
My Lords, I have long been an admirer of the persistence of the noble Lord, both in this House and in the other place. Certainly, in regard to his amendment, that is no exception. I wish to correct him on one point he made at the end. There is no prohibition on relevant Ministers attending the ISC and they have done so on a number of occasions. That is simply a matter of fact.
Over the years that I have been a member of the ISC, I was one of those who thought very carefully about the future of the committee and whether it should be a Select Committee. Although I understand many of the points made by the noble Lord, particularly in relation to privilege, I shall say why ultimately I do not agree with him on making this committee a full Select Committee of Parliament.
Over a long—probably overlong—if broken career in the other place, I served on two Select Committees. Their purpose—I refer to the Select Committee on Energy and the Public Accounts Committee—was to openly take evidence that was available to the public on matters of relevance in terms of energy and of public accounting. The culture of a Select Committee is based on being able to take open evidence. There is no compunction on witnesses at a Select Committee to give full answers; there is no evidence given on oath. But normally a Select Committee is not dealing with confidential information that cannot be disclosed in that forum.
Lord Lea of Crondall
My Lords, I wonder whether we are missing a major point in all this, which is why my instinct is strongly to support my noble friend Lord Campbell-Savours. I refer to public confidence in the work of MI5 and MI6 and what we know about them.
There is a sort of closed shop mentality at the moment, as I see it, what some people call the “secret state”. People have the right to write their books and put titles on them, but when I want to find out how many of the e-mails that I write could possibly be hacked by one of the agencies, there is no way of knowing, obviously. But should there be some way of knowing the categories of e-mails that can be hacked? Is it part of national defence and security that we do not know an awful lot about what is going on? This has a tangential bearing on whether it is a parliamentary committee or whether it is the committee that we have at the moment. Incidentally, as I understand it—I will be corrected if I am wrong—there is no Labour Member of the Lords on this committee at present. Is that correct?
Lord Butler of Brockwell
There are Labour members, but not Labour Members of the House of Lords. There are two Members from the Lords, my noble friend and a Cross-Bencher, but there are Labour Members from the House of Commons.
Lord Lea of Crondall
The noble Lord, Lord Butler, is correcting something that I did not say. I said Labour Members of the Lords. There are no Labour Members of the Lords on this committee.
The information flow should be the subject of a much more substantive statement by the Minister when he responds than is normal on these occasions. I was interested in the remark made as an aside by my noble friend Lord Campbell-Savours on the fact that this question en principe has never been discussed in the past 14 years. I rather suspect that if we were setting up a constitution for a new member of the United Nations, we would be a little worried if that were the case. Although I am not saying that this amendment is the right thing, I will support it because I believe that it opens up a very important question. We know that the noble Lord, Lord King of Bridgwater, is a typical, reputable, outstanding and well respected member of the circle in which this sort of activity takes place. It used to be called the Establishment. I do not know whether that was a compliment or an insult; it was half way between. However, we do not need to be so scared of the idea that we are always playing into the hands of enemies of the country, whether it is al-Qaeda or anybody else, if we have a more adult approach to these matters. Political balance is needed by those who have been involved in the agencies—I see a couple on the Front Bench—where people find it perhaps difficult to understand the world where other people come from. It would be much better if the normal rules of political balance and openness were observed.
Finally, as regards the remark of the previous speaker, we had the example last week of members of the Treasury Select Committee not covering themselves in glory when asking questions about LIBOR because they did not really understand what they were talking about. I can see the objection that ordinary souls on a committee like this would be of no use because they would not know what they were talking about. Obviously, by definition, they would not know what they were talking about as they would not have been serving in one of the agencies or been on this intelligence committee for a number of years or been Secretary of State for Defence or whatever. I wonder whether that is going to inspire public confidence.
Lord Deben
My Lords, I intervene as somebody who has not been a member of this committee. I have now managed to get papers from the noble Lord who sits next to me. Unusually I find myself wishing to ask my noble friend to listen carefully to the words of the noble Lord, Lord Campbell-Savours, for the following reason. The issue is the confidence of the public in this committee. I have a difficulty of inventing a committee of a particular kind in order to meet that confidence requirement because it seems to start from a grave disadvantage of looking as if you have an artefact here. People complain about the fact that nobody seems to know too much about what goes on, so let us invent something that seems to meet their requirements. That is what it will look like if we make the alterations suggested by the noble Lord, Lord Butler, although I am entirely in favour of them.
The advantage of a Select Committee is primarily that it is something that people know and it has, over the years, established a position, as a concept, of independence. It clearly is not the creature of the Prime Minister or of the political parties. It is manifestly, and increasingly, with the election of its chairman, an independent form of investigation. Therefore, prima facie, it would be much more sensible to use that mechanism and to make such changes as are necessary for the particularities of such a Select Committee so that at least when it is referred to as a Select Committee people immediately catch on—in so far as they know about anything in Parliament—that this is an independent, non-party parliamentary committee that is treated by its members as a place where they work in the national interest and not in their party-political interest.
I think there is an important advantage in using the Select Committee structure. My worry is that my noble friend will be led by all sorts of officials—I have been in this position and I hope that the noble Lord, Lord Butler, will excuse me when I try to describe it—of the “better not Minister”, “it would be safer to do something slightly different”, “you never know what might happen” kind. That attitude is endemic in the giving of advice because advisers would prefer not to have given advice that turned out not to be quite right, so it is better to give the most negative advice.
I hope my noble friend the Minister will be prepared to say that we can create a construct that is a Select Committee and sits naturally in the parliamentary structure but is specifically designed to deal with security matters and will be what everyone outside will recognise is different from a Select Committee on the environment or a Select Committee concerned with trade and industry. Is it not better to use the strength of the Select Committee process and procedure and, above all, of public understanding rather than to try to create something special?
I very much respect my noble friend Lord Lothian and I understand his fear that the Select Committee will be expected to have public hearings. I agree that a public hearing in which every answer is, “I am afraid I can’t answer that” will be an embarrassment and not helpful, but it seems to me not impossible that, before any such hearings are started, this Select Committee should publicly be said to be a Select Committee that does not have public hearings, except in unusual circumstances. You start off as you mean to go on. No one would misunderstand that. Indeed, I think if it were stated like that, it would be much easier for the committee to proceed, and I would like to see it. But to say that because it is different from other Select Committees in that sense, it ought to be set up in an entirely different way is a mistake because it is more similar to a Select Committee in every other manner. What people want to know is that it is independent and all-party, that its members take things seriously as parliamentarians and that its secrecy is only the secrecy that is necessary because of the nature of the things that it discusses.
I hope my noble friend will not be led astray by the siren voices of those for whom this is a step too far. We have been a long time discussing this issue. The noble Lord, Lord Campbell-Savours, reminded us of how long and there was time before even he came on the scene in which this discussion was taking place. I hope we will not step back now. We ought to do the thing properly and set down the terms of the Select Committee in advance.
Lord Carlile of Berriew
My Lords, I welcome the opportunity to say a few words on this amendment, mainly because I always listen with great respect to the noble Lord, Lord Campbell-Savours. His knowledge of parliamentary procedure is second to none and he is probably the most skilful of anyone I have observed in what one might call the parliamentary maze. However, I disagree with his proposal that there should be a Select Committee for the following and other reasons.
First, intelligence is not created in a vacuum but for a reason. Sometimes it is found to be created for a reason that proves to be suspect but not necessarily to be followed. It is not completely free of scrutiny; far from it. A little later in the Bill there are references to the Intelligence Services Commissioner. I am bound to say—I said this before when I was independent reviewer of terrorism legislation—that the Government and the security services could give a more coherent and fuller narrative of what they do. I pay tribute to the noble Baroness, Lady Manningham-Buller. She started the process in a convincing way of giving at least some narrative that enabled not only the public but, perhaps more importantly, parliamentarians in the first instance to understand why certain things were being done and certain actions taken. It is subject to oversight and it is necessarily subject to confidentiality. Accountability is very important but we have to face up to the fact that full transparency can never be achieved, and indeed should never be achieved for it runs the risk of exposing those who do very difficult tasks for our intelligence service to risks to which we would not wish them to be exposed.
Furthermore, a Select Committee of either the other place or both Houses involves the normal Select Committee procedures. It is very difficult to limit those procedures because Parliament makes its own rules. Those of us such as the noble Lord, Lord Campbell-Savours, a number of others present and me—derided as we are by some for having been in the House of Commons before coming here—know something that possibly not everyone else knows, which is that Erskine May is not like a legal textbook. The rules of parliamentary procedure are often made up as you go along and one cannot anticipate clearly what they will be. Sometimes the mood of the nation changes those rules. Think back to what happened in London on 7 July 2005 to see the emotion that followed those events and how easy it would have been for parliamentary procedure to have been changed, either to make a Select Committee much more secretive in its approach— inappropriately so perhaps—or to go the other way and open up everything to public scrutiny.
If Members of this House or another place are appointed to Select Committees by the normal route, it exposes much of what is given to them to their staff. The Government should be entitled to look at the ability of the proposed members of a committee to retain and hold to confidential material and the reliability of their staff. The one thing one cannot afford in this area is inadvertent leaks or the innocently meant, but foolish, acts of the unwise.
What the Government propose in this Bill is, in my judgment, appropriate. We have a committee that is accountable but not wholly transparent for perfectly good reasons. It has the capacity to look at secrets in detail but within an appropriate context—as limited, for example, by Clause 2(3), which means that the Prime Minister and the ISC must be satisfied as to the part that anything that might be inquired into plays in any ongoing national security operation.
My judgment, for what it is worth, is that what the Government propose in this Bill creates a prudent and carefully thought-out structure for the proper and rigorous scrutiny of how secret material is dealt with by Her Majesty’s Government. There is a danger that we play into the hands of those who believe that because something is secret there is some kind of ghastly Executive conspiracy going on. That is completely untrue. Of course, mistakes are made; there are people in the secret services who have to delve into the most difficult things that face our society, and they are bound to make mistakes. I hope that occasionally they do make the odd mistake in the protection of the public, because overcaution is not a bad thing if it saves lives—sometimes large numbers of lives. But the menu provided in this Bill allows the proper balance, and I shall, if necessary, not support the noble Lord’s amendment.
Lord King of Bridgwater
The noble Lord has great experience in these areas, and I take it from the tenor of his argument that he is not advocating a Select Committee approach. He said that he was in favour of what the Government have in the Bill, but since then the noble Lord, Lord Butler, and the noble Marquess, Lord Lothian, have produced amendments. What is his view on those?
Lord Carlile of Berriew
At the moment I am dealing with the amendment proposed by the noble Lord, Lord Campbell-Savours. I listened with great care to my noble friend Lord Henley from the Front Bench, and I am very content with the approach that he has taken. We should wait and see what the Government come up with in answer to the noble Lord, Lord Butler, who has great wisdom and experience in these things—I am completely open-minded about that. But I am not happy with the idea that we should have a conventional Select Committee or, even worse, a Select Committee whose rules have been fiddled with for this purpose.
Lord Elystan-Morgan
My Lords, like many Members I have been greatly impressed by the contribution made by the noble Lords, Lord Campbell-Savours and Lord Carlile. Both have the gift of being able to articulate their views with awesome clarity and very great force. If one had to, I should find it somewhat difficult to decide which one is correct in this matter. However, in respect of this debate and the earlier Amendments 1 and 2, it seems that everybody’s objectives point very much in the same direction.
In the first instance is the desire for sovereignty and independence for this particular body. By sovereignty one means that it is an organ, extension and delegation of Parliament, to such a degree that, as far as the Bill of Rights is concerned, it would be unchallengeable in the courts. I think that we are all agreed on that matter. At the same time, it has to be independent of the Executive and Prime Minister, which means that it should be, to use a canine expression, the watchdog of Parliament rather than the poodle of the Prime Minister. It is much easier to enunciate that principle than to work it out exactly because, by definition, the Prime Minister and to a large extent the Home Secretary has a constant flow of intelligence information, which will simply not be disseminated generally.
My other point relates to Select Committees. I listened carefully to the noble Marquess, Lord Lothian, and believe that the concept of a Select Committee is sufficiently broad and flexible to allow a great deal to be done of the nature suggested by the noble Lord, Lord Campbell-Savours. I would have thought that a Select Committee could always decide whether to sit in public or not and, if so, on exactly what terms. A Select Committee can decide whether a single word of its report is to be published or whether there is to be general publication, subject to sidelining. Sidelining, of course, can be a severe sanction. I will never forget the day, in about 1967, when I was a Member of the House of Commons and that flamboyant and splendid Member of Parliament Tam Dalyell was hauled before the House to answer a serious charge of contempt. It related to a Select Committee that was looking into the affairs of Porton Down, a most delicate situation as we all appreciate. There was an awesome hush; it was almost like a public flogging. There was the miscreant standing ashen-faced at the Bar of the House. It taught me a lesson about the tremendous and terrible jurisdiction that the House of Commons has, if it wishes to use it in a situation like that.
Where do we arrive? First, at a body that is not appointed by the Prime Minister; secondly, a body that is unchallengeable in the courts; and thirdly, a body—possibly a Select Committee—that is able to do its work with the confidence of the public, and yet able to maintain an absolute confidentiality which is so important to its very function.
Lord King of Bridgwater
My Lords, I agree very much with the noble Lord that—as the noble Lord, Lord Butler, said—there is no argument about the ends. We need to establish public confidence in a very important committee which has a very important role in overseeing the intelligence agencies and which clearly has to be regarded as being in a different world from the other areas of responsibility that Select Committees deal with. This is a difficult issue and a number of interesting points have come up during this debate which I had not anticipated. One point, made by my noble friend Lord Lothian, was the implication that this must involve, as I understood it, a majority of public hearings. My understanding is that the Defence Select Committee, particularly when discussing our nuclear deterrent, goes into secret session and there has never been any problem with that. I am not aware of any leaks from any of those proceedings. However, it is a challenge. The noble Lord, Lord Campbell-Savours, might remember that when we tried to meet totally in secret, as we did, I tried to see whether there was some way that we might at least have a public hearing. I certainly saw the risk, exactly as posed by my noble friend Lord Lothian, that if you were not careful you would end up with prepared questions and prepared answers—all planted—and it would be just a stage show, which would not carry much credibility.
As for the challenge about how we achieve this balance, I reflected on a bit of history. When Sir Anthony Blunt had to be outed at the beginning of the 1979 Administration of the Prime Minister Margaret Thatcher, there were considerable debates about whether it was time to have some sort of committee. Jonathan Aitken got quite a bit of publicity for being in this particular session when he stood up and said that,
“one debate and one Written Answer do not add up to adequate and continuing scrutiny of the Security Service”.—[Official Report, Commons, 21/11/79; col. 446.]
I think we would all agree with that. He said the Government should take the initiative and if they did not move to establish a “senior and more cautious” committee of privy counsellors, then in a different Parliament—perhaps one dominated by left-wing Back-Benchers—a more intrusive, less sympathetic Commons Select Committee might be set up.
Baroness Hamwee
My Lords, like other Members of the Committee I am a bit puzzled about how polarised the debate became a few minutes ago. It seems to have swung back now. I do not see all the distinctions that have been drawn, and I certainly do not see the distinction between the committee being there to ask questions in public or as something different to get to the bottom of an issue.
I agree, of course, that the committee must have the confidence of the agencies and that it must have public confidence. I would add, perhaps as a subsection of that second point rather than as a third category, that it must also have the confidence of those affected by events. When I was a member of the London Assembly, I was involved in some work following the events of 7/7, and one of the benefits of our being able to undertake some work was that it fulfilled the need of some who had been affected to tell their story and to have their story listened to. I am not suggesting that this is a pattern or even relevant to the majority of the ISC’s work, but I would not want it to be forgotten.
I think that this debate is leading us towards there being a Select Committee and that badging it as such is important because of what that says about the focus of Parliament’s responsibility to the public. I do not think it would require the rules to be fiddled with, but it would require them to be made fit for purpose. Perhaps it is naive and untraditional of me, but I do not see why the rules of a Select Committee cannot be made fit for purpose. It might require a lot of work, but I think it ought to be done.
I have some very non-technical and rather inelegant amendments later, but the point that they are intended to raise is that the default should be that the committee works for the public and in public, not as a stage show—absolutely not, because to take up one of the points that has just been made, I for one think that the most important questions that tend to be asked are the supplemental ones. I am glad that we are having this debate because I think that it is taking us in an important direction.
Baroness Manningham-Buller
My Lords, I declare what I hope is an obvious interest—my membership of the Security Service for 33 years—although I should warn the Committee that I retired five years ago and so am out of date.
I should like to reiterate a couple of points. I listened with great interest to the points made by both former members of the ISC, current members and others with a close interest in this matter. It is certainly the case—and I do not think that I am out of date in saying this—that it is in the interests of the security and intelligence community to have either a Select Committee or the present committee as it stands seeking to give reassurance to Parliament and the public that these agencies are properly run, obeying the law and doing a reasonable job. As the noble Lord, Lord Carlile, said, they will make mistakes—it would be a delusion to suggest that any organisation was free from making mistakes—but certainly when I was reporting to the ISC I hoped to own up to and discuss those mistakes.
The support of members of the public is necessary not only in terms of general support for the organ of government but because, to do their work, the agencies require that support every day of the week. They need the public to join them as recruits—they want to attract high-quality recruits—they need them as sources of information, and they need them to help in whatever way possible. Someone might be asked, “Can I come and sit in your bedroom with a camera?”. I might say no but people say yes to the officers of the Security Service daily. Therefore, when we talk about public opinion, the services require the help of the public to do their job and, in my experience, they get it.
When we talk about whether to go for a Select Committee—a proposal with which I have a lot of sympathy—or an improvement on, or development of, the last one, I share the view of the noble Lord, Lord King of Bridgwater, that we will get there at some stage, although whether we will do so at the speed at which the noble Lord, Lord Campbell-Savours, would like, I do not know.
I am sorry but I feel that I must take slight issue with the noble Lord, Lea of Crondall, about the amount of information on the services that is available in the public domain. For certain, my service took its heart in its hands and commissioned a centenary history of the Security Service. We made the professor of contemporary history at Cambridge a temporary member of the service and allowed him into our records. We said, “You can make any judgment you like. We won’t seek to query it. There will be a few things that you can’t publish for national security reasons but we will keep those to a minimum”. If you look at our website—I must stop saying “our”; I left the organisation. If you look at the Security Service’s website, you will see quite extensive amounts of information.
Why do these organisations exist? They exist to try to protect the United Kingdom and its citizens, and it is in their interests that as far as possible the confidence in them is well founded and, as far as it can be, widely and publicly known. To that extent, I should like to say how much I welcome the arrival of the ISC and how much I look forward to its continuing evolution.
Lord Butler of Brockwell
My Lords, I wish to make a brief point. In doing so, I know that I risk being regarded by the noble Lord, Lord Deben, as the siren voice of cautious officialdom—or, in my case, cautious former officialdom. However, I want to raise a question on what the noble Lords, Lord Campbell-Savours and Lord Deben, said.
The argument of the noble Lord, Lord Deben, was that the badging of the security committee would be improved if it were called a Select Committee. I can see the case for that. I think we all agree that the ultimate purpose is that the public should have confidence in the committee’s scrutiny of the intelligence services. However, it was clear from the speech of the noble Lord, Lord Campbell-Savours, that if this were to be a Select Committee, it would have to be hedged around by a very large number of parliamentary resolutions, and that would have the same effect as the constraints that are written into the Bill. The question is: would that make it more convincing if it were a Select Committee when it was a Select Committee unlike any other because it would be so inhibited by those restraints?
They say that something which looks like a duck and quacks like a duck can be regarded as being a duck, but this would not look like or quack like a Select Committee; it would be something completely separate. I suspect that this might reduce, rather than increase, public confidence in it because people would see that it was a Select Committee that did not operate like any other Select Committee and could not really be regarded as a Select Committee in the true sense in which the public understand it.
Lord Campbell-Savours
Could I draw attention again to the noble Lord’s own argument over privilege? The issue of privilege will not arise in the event that it is a full Select Committee because by definition it has everything that the noble Lord proposes in his amendments.
Lord Butler of Brockwell
I accept that, and we will be coming to some other amendments where I will be arguing that we should have our cake and eat it. We are entitled, however, to have our cake and eat it. For the reasons I have been arguing, I do not think that it is advantageous to have this as a Select Committee because I do not think it can be like any other Select Committee. I do think, however, that it requires special arrangements to give it the privileges of a Select Committee, and I do not withdraw that argument.
Baroness Smith of Basildon
My Lords, the noble Lord, Lord Campbell-Savours, has done this Committee a service in degrouping his amendments. It is a broader and deeper debate than the one we had on the first two amendments. It has been extremely helpful. The noble Lord, Lord Elystan-Morgan, hit the nail on the head when he described it as a useful debate with a lot of consensus. I disagree with the noble Baroness, Lady Hamwee, who said this was a polarised debate. I am not convinced that it is. This is less about what we expect the ISC to do and how we expect to do it than the structure that can best achieve those objectives. There seems to be a fair amount of agreement on the kind of objectives we are seeking. I wrote down a couple. The idea of a veneer of expertise has now been firmly laid to rest. I hope that we will not hear that expression again either in your Lordships’ House or outside. I was intrigued when the noble Lord, Lord Deben, mentioned to the Minister the comments from civil servants. I felt the ghost of “Yes Minister” creeping into our debates. Civil Service Ministers sometimes have to make a decision and challenge civil servants on some issues.
The areas of broad agreement were the independence from the Executive and the issue of parliamentary privilege. I thought the comment of the noble Lord, Lord Campbell-Savours, about the power to take evidence under oath was a powerful one. Security of information caused considerable concern for those who are not keen on having a Select Committee structure but who also, like the noble Lord, Lord Campbell-Savours, want to protect security of information if there is any question on that. There is the same point even if the structures are different.
The issue of public hearings came up. I am not sure how relevant that is in terms of structure in that amendments have been tabled about the kind of public hearings there could be and what form they could take. My own view is that they are valuable. They certainly should never be automatic but we have that debate coming up. I am unclear whether a Select Committee would have to have public sessions unless the Committee wanted to have it. It is the best structure for achieving that.
We have also heard from a number of noble Lords about ensuring public confidence in whatever structure the Government decide to go ahead with. It was helpful that in the last debate the Minister, if I understood his words correctly, said he wanted to look at the best means of achieving these ends and consider all implications. I hope he can say that in the context of this debate as well. It has been a broader debate in that noble Lords have been thinking carefully about powers, independence and structure, and I hope the Minister finds that debate and those comments and views helpful.
Public confidence is an issue to take into account. It can be well served by public hearings or it can be badly served by public hearings, and we will debate that further today. Public confidence does have an impact on how sensitive or highly confidential information that is relevant to national security is dealt with. So I am interested in what the Minister has to say. I hope that he will take on board all the comments made in the last debate and in this debate. I hope that he is smiling because he agrees with me rather than because he is amused by what I said. I hope that he will say—as I hope I would say if I were sitting in his seat—that he will take this away and take into account not only the comments that were made in the previous debate but the wide range of views expressed in this debate. They are moving in the same direction and seek that, whatever structure the Government want to proceed with, the comments of the House should be taken into account to ensure that the Government get it right, protect national security, safeguard sensitive information and also secure parliamentary independence and public confidence.
Lord Henley
My Lords, I was smiling at the noble Baroness only because I thought that she was trying to write my speech, which was not necessarily her job at this stage. I agree with her about several things. It has been a very useful debate. The 11 speakers—12 including myself—expressed a range of views. As the noble Lord, Lord Elystan-Morgan, said, we are all heading in the same direction and all trying to ensure, as a number of speakers put it, that there will be an appropriate degree of public confidence in whatever we set up.
I was very interested in the opening remarks of the noble Lord, Lord Campbell-Savours. He talked about the position of many colleagues in his party in 1989. Many of them are now distinguished members of his party. He stressed that all of them, to a man and woman, were in favour of Select Committee status for what became the ISC in 1994 under the chairmanship of my noble friend, and what is now being developed by the Bill. I was looking forward to hearing the official view of the Opposition on whether Select Committee status was the appropriate road to go down, but I heard no answer on this from the noble Baroness later in the debate, nor on what the collective view of the party was. It might be that there are now different views, because 1989 is a considerable time ago.
Lord King of Bridgwater
The view about a Select Committee is rather easier to hold if you are in opposition than if you are in government. The history of this was that the entire shadow Cabinet in 1989 voted in favour of it. When the prospect of office loomed, Jack Straw, who was then I think shadow Home Secretary, was asked the same question and was much more cautious about the whole matter. Of course, when they came into government there were no moves to introduce a Select Committee. However, times have moved on and I hope that there will be moves in that direction.
Lord Henley
My Lords, obviously my noble friend is right to say that times have moved on. All of us can remember as far back as 1989. Things have obviously changed since then. I was merely trying to tease out the official view of the Opposition at this stage, but it does not matter because as we all know, and as a very distinguished Cross-Bencher, the noble Lord, Lord Elystan-Morgan, made clear, we are all heading in the same direction and at least trying to make sure that we achieve the right thing—a committee that has the appropriate degree of public confidence.
I do not want to re-emphasise what I said earlier about the ISC being appointed by Parliament rather than the Prime Minister, and about its members being free to choose their own chair. That will be debated later, in the context of another amendment tabled by the noble Lord. In parallel with these statutory changes, it is the Government’s intention that the ISC will be funded and accommodated by Parliament. The amendment sets up the ISC as a Select Committee of Parliament. The noble Lord could have achieved that by the simpler means of leaving out the whole of Part 1 and making sure that the appropriate authorities in another place created the Select Committee—but he went down a different route and we are having this debate for the very good reasons that all speakers in the debate made clear.
I will explain why we believe that the ISC should be created by statute. It is to ensure that safeguards are in place to protect against the disclosure of sensitive information. Therefore, the Government do not consider it appropriate for that body to be a full Joint Committee established merely under the Standing Orders of each House, as other Select Committees are.
I hope that the Committee will bear with me if I expand on those reasons. First, in that scenario, the Government would not have a statutory ability to prevent the publication of sensitive material. There are two main problems with this. The risk of disclosure of information that might damage national security could be increased. This might lead to a situation where agency heads find it hard to reconcile their duty to protect information with their duty to facilitate oversight. This could lead to a sharing of less sensitive information and therefore a corresponding reduction in the effectiveness and credibility of oversight.
Secondly, it would not be possible for the most sensitive information to be withheld from the Committee. It is important that safeguards exist so there is adequate provision for those exceptional circumstances where the disclosure of information, even to the Chairman of the Committee, would be damaging to national security and/or would jeopardise vital agency operations or sources of information. The equivalent grounds on which information can be withheld from the Committee under the Intelligence Services Act 1994, have been used very rarely, as those former or current members of the Committee will know. We would expect the similar powers in the Bill also to be used sparingly—only in exceptional circumstances.
Thirdly, there is the appointments process. Again we will deal with that in greater detail later on. Here the Prime Minister has a role, and the noble Lord, Lord Campbell-Savours, in a later amendment proposes a much stronger role for him. That role is important. The ISC is unique in that members of the Committee have access to very important and extremely sensitive information, and it is important that the appointments process has sufficient safeguards to ensure there is as little risk as possible of unauthorised disclosure of sensitive information and the consequences that could do significant damage to national security.
The effect of the noble Lord’s amendment to create a Select Committee is not clear to me. He says it could take evidence under oath. In the Bill, even if we were to accept all the noble Lord’s amendments, the ISC would still be created by statute and safeguards would still exist to protect national security in those three areas I have listed, although admittedly altered to some degree. Unless the noble Lord pursues this suggested alternative policy of deleting the whole of Part 1, his amendment would not create a full Joint Committee because that can be done only by the Standing Orders of each House. It would create an entirely novel body, a Select Committee established by statute.
To what extent would such a body share the characteristics of the other Select Committees? The Bill makes it clear that, even were it amended in other respects according to noble Lords’ wishes, the ISC is different from other Select Committees in fundamental respects—for instance, in relation to appointments and reporting. That being so, I believe it is unclear whether or to what extent changing the ISC in this way would give it the other characteristic of a Select Committee. Indeed, I believe the risk is that describing the ISC as a Select Committee when it has characteristics not shared by other such committees could positively mislead as to the ISC’s true character.
I hope that that explanation is sufficient for the noble Lord. I wait to see what he says. This has been a useful debate and there will no doubt be further discussions on this matter, but I believe that it is appropriate for the noble Lord to withdraw his amendment.
Lord Campbell-Savours
My Lords, perhaps I may say a few words in winding up the debate. I say to the noble Lord, Lord Henley, that I recognise the wording I have used could not be put in the Bill. My amendment is simply my attempt to ensure that there is a debate. I recognise perfectly well that if we were to go down this route, while there would be, as the noble Lord, Lord Butler of Brockwell, said, a requirement for something in statute, the body of the change would be incorporated into parliamentary resolutions.
Lord Butler of Brockwell
“( ) Financial support shall be available to members of the ISC who are members of the House of Commons as if they were members of a Select Committee of that House; and to those who are members of the House of Lords as if they were members of a Select Committee of that House.”
Lord Butler of Brockwell
My Lords, I shall speak also to Amendment 9.
It is right and customary to declare an interest in these amendments. I certainly do so in this case because I have a direct financial interest in Amendment 4. The purpose of the amendments is that the chairman of the Intelligence and Security Committee should be treated in the same way as the chairmen of Select Committees in terms of remuneration. The purpose of Amendment 4 is that the members of the Intelligence and Security Committee should, similarly, be treated in the same way as members of Select Committees.
I wish to make it absolutely clear that Amendment 9 is not tabled at the behest of the current chairman of the ISC, the right honourable Malcolm Rifkind, who does a great deal of work for the committee on an entirely voluntary basis. I think that my colleague the noble Marquess, Lord Lothian, will agree that this committee chairman certainly does not do less work than the chairman of a Select Committee. He works many more days of the week than the days on which the ISC meets. For financial purposes—and leaving aside the particular individual, Sir Malcolm Rifkind—the chairman of the ISC should, as a matter of justice, be treated similarly to the chairmen of Select Committees and receive remuneration accordingly. I think I can say that that is the view of the other members of the ISC, who are similarly grateful for and deeply impressed by the work that our chairman does.
As regards Amendment 4, the House of Lords is kind enough to provide that attendance at meetings of the Intelligence and Security Committee should qualify for half the daily allowance—£150—but only on the days when this House is sitting. There seems to be no logic in that. We do exactly the same amount of work regardless of whether this House happens to be sitting at the same time. If one day should qualify for the £150 allowance then it seems that the other day should. This point arises because, these days, and as we will see in the next couple of weeks, the sittings of the House of Commons and the House of Lords do not always coincide with each other. I regret that. It may happen in September that the House of Commons will sit and the House of Lords will not. If there is a meeting of the ISC on those days, my noble colleague and I will not be eligible for the daily allowance. There is a greater injustice as a result of the unevenness of the sittings of the House of Commons and the House of Lords.
I have, as I say, a personal interest in this perfectly simple point of equity, which ought to be put right. It can easily be put right in the rules on the financial support of the House. In order to draw attention to it and try to ensure that it is put right, I have put down Amendment 4.
The Marquess of Lothian
My Lords, I support the noble Lord, Lord Butler of Brockwell, in both of his amendments, to which I have attached my name. Like him, I declare an interest in Amendment 4—on which I shall say no more than he has said. He has argued the case with great eloquence and I hope that the Government will listen to his argument.
In general terms, I say to the noble Lord, Lord Campbell-Savours, that these amendments are slightly ironic, given what I was saying in answer to his previous amendment. We are asking to be treated like a Select Committee and, once more, this underlines the fact that the argument on that is not polarised. It is not about the theory of a Select Committee but about the practice of one. We may well return to this matter in the future.
I strongly endorse the proposal in Amendment 9 that the chair of the committee should be remunerated in line with the chair of departmental Select Committees. I have served under four Intelligence and Security Committee chairmen, I think, and in each case I have been amazed at the amount of work they are required to do compared with the ordinary members of the committee. The ordinary members do preparation behind closed doors in secure surroundings for an afternoon and then we have the meeting the next day, but the chairman is in almost every day, going through issues, deciding whether they should be brought to the committee. The chairman has a major piece of work. It is therefore only fair that the chairman should be properly remunerated, as he would be if he were a chairman of a Select Committee.
Lord Campbell-Savours
My Lords, I wholeheartedly support the amendment. My parting speech in the House of Commons in 2001 was on the very issue of the payment of chairmen of Select Committees. I wanted to see the development of what you might call a separate career structure in the legislature as opposed to the Executive. When I was a member, the chairman, the noble Lord, Lord King of Bridgwater, did excellent work. When I think of the amount of work that he took on, it is inconceivable that we should now push through legislation without taking full account of that work and the need to ensure that it is remunerated.
Lord King of Bridgwater
I intervene very briefly. I thank the noble Lord, Lord Campbell-Savours, for his comments and for those that he made at Second Reading, for which I am grateful. I am not sure whether this amendment can be made retrospective, but it seems an excellent idea. I do support it—it seems logical if a Select Committee chairman in the House of Commons now has it. I understand my noble friend Lord Lamont made the point. The point the noble Lord, Lord Butler, raised is pretty fundamental because it applies to every Select Committee of this House. If the House is not sitting, people do not get any allowance even if those committees are working. The issue goes a bit broader than just changing it for the ISC.
Lord Butler of Brockwell
If I may correct the noble Lord, it is worse than that. Under the arrangements for other Select Committees of this House, the members qualify even if the House is not sitting. The noble Lord shakes his head but if he looks up the rules he will find—I see the noble Baroness, Lady Hamwee, agrees with me—that for Select Committees the allowance is available on days when the House is not sitting, but for the ISC it is not.
Lord King of Bridgwater
I am grateful to the noble Lord. He has cheered up the noble Lord, Lord Lamont, quite considerably if that is right because he was telling me of the committee session he must attend in the Recess. I simply say that I support this. I do not know quite what the first part of the amendment means or whether the Minister will explain it. I am not clear what the financial benefits are for Members of the House of Commons when they are on Select Committees. We asked for equivalent arrangements for the ISC. Perhaps somebody will clarify that point.
Lord Rosser
My Lords, the names of my noble friends Lady Smith of Basildon and Lord Beecham are associated with Amendment 9 and we support the proposal that the chair of the Intelligence and Security Committee should be remunerated in line with chairs of departmental Select Committees of the House of Commons. As has already been said clearly, the commitment required by future occupants of this post is likely to be extensive, bearing in mind that the whole purpose of the Bill is to strengthen oversight of the intelligence and security activities of the Government by extending the statutory remit of the Intelligence and Security Committee. The committee, as we know, will be drawn from Members of the House of Commons and your Lordships’ House. It would seem appropriate to determine remuneration as part of the Bill, and to relate it to a not dissimilar position in one of the Houses of Parliament from which the membership of the committee is to be drawn.
A departmental Select Committee in the House of Commons has a different but not widely dissimilar role to that of the Intelligence and Security Committee under the Bill. The chair of a departmental Select Committee in the House of Commons also takes on a considerable additional level of commitment and responsibility. There are a number of such posts and they are not held by Ministers of the Crown. The officeholders, like the Select Committees themselves, are drawn from Back-Benchers, as would be the case with the Intelligence and Security Committee and the chair of that committee. It would therefore seem that the chair of a departmental Select Committee in the House of Commons is the appropriate benchmark, as provided for in Amendment 9, which we support.
Lord Henley
My Lords, we can deal with these amendments fairly briefly. The noble Lord, Lord Butler, described them as a simple point of equity. On that basis, I hope the debate has been—or will be—listened to in due course by IPSA in the case of the Commons and, in the case of Members of this House, the House Committee, because in the end decisions have to be made by those appropriate committees. It is not really a matter for legislation.
To underline that, I remind the Committee that Commons Members’ pay is entirely a matter for IPSA and it makes decisions in accordance with resolutions of the House. The relevant resolutions make no provision for additional financial support for ordinary members of Select Committees so it would be a matter only for the chairmen of committees. I will get to the question about the chairman of this committee later. IPSA may determine that MPs who hold a position or office specified in a resolution of the House of Commons should receive a higher salary than ordinary Members. IPSA will have no say as to which positions are on the list—that is obviously a matter for Parliament; once it has decided on that list, it will be for IPSA to set the rate. Again, it is for IPSA to listen to this debate.
Lord Butler of Brockwell
My Lords, I am grateful to the Minister for his sympathetic response and to other Members of the House for their comments. I just want to make clear to the noble Lord that it is not a question of feeling adequately or inadequately remunerated. There may be different views in the House about whether payment of £150 for a day’s work on the committee is adequate or inadequate, but that is not my point. My point is that there is an obvious inequity between the treatment of members of the Intelligence and Security Committee and the members of Select Committees, and that is what I would like to see put right. I beg leave to withdraw the amendment.
Lord Butler of Brockwell
“( ) If the House of Parliament from which a member of the ISC is to be drawn declines to appoint a person nominated by the Prime Minister, the Prime Minister shall nominate an alternative person.”
Lord Butler of Brockwell
My Lords, Amendment 5 is an amendment to Clause 1(4). It seeks simply to fill out an obvious point that is not currently covered by the Bill.
Under the arrangements proposed in the Bill, the Prime Minister will propose members of the committee but it will be for Parliament to agree to the appointment or not. Therefore, we need to provide for the situation in which Parliament does not agree to an appointment. At the moment the Bill says nothing about that. The purpose of this amendment is to make clear that in those circumstances, if either the House of Commons or the House of Lords does not agree to the nomination of a Member of that House to the Intelligence and Security Committee, the Prime Minister would have to nominate somebody else for the appointment for the approval of the respective House. I think that is obvious and that is what would happen. It is not provided for in the Bill and this amendment is therefore just to fill that gap.
The Marquess of Lothian
My Lords, once again I rise to support the noble Lord, Lord Butler of Brockwell, on this amendment, to which my name is also attached. I will not add much to what he said. I think that the real purpose here is to remind the House that the committee has nine members. That is written in to the statute. It is one of the smaller committees involved in the sort of work that this committee is doing and it is very important, in my view, that we retain that number at least. In the absence of this amendment it is theoretically possible that this House might decide that it did not want the two nominations from this House made by the Prime Minister and that the Prime Minister might decide to leave it at that—have a committee of seven in total from the House of Commons and nobody from this House. This amendment would make sure that that cannot happen by ensuring that, were this House or, indeed, the other House to say no to nominations by the Prime Minister to this committee from those Houses, the Prime Minister would be required to make another nomination.
Lord Campbell-Savours
My Lords, I shall speak to Amendment 6 in this group. My amendment deals with the wording in Clause 1(5) of the Bill, which states:
“Before deciding whether to nominate a person for membership, the Prime Minister must consult the Leader of the Opposition”.
I have great reservations about this, and I will explain why. I think that this is the product of muddled thinking. This is an appointment of trust. The appointment requires the Prime Minister’s knowledge of opposition politicians. I think that Ministers very often do not understand what motivates opposition politicians.
As an example I take my own appointment. It is utterly inconceivable that the then Prime Minister, Margaret Thatcher, now the noble Baroness, Lady Thatcher, would have appointed me to that committee. She would have referred to my record in the 1980s when I was running with the hounds on the issue of Peter Wright and we caused some considerable difficulty, I was informed, in the House of Commons. I had endless arguments with the Table Office over the tabling of Questions. On a number of occasions my Questions, which, it was thought, would have breached national security had they been tabled, were submitted to the Speaker of the House of Commons under the appeal procedure. If, in the 1980s, I had applied to be a member of this committee, I feel quite sure that if it had been left to the Prime Minister of the day—I am arguing the converse—the Prime Minister of the day might well have objected to a person like me being a member of that committee.
The problem was that, at the time, people did not know what we were campaigning about. It was about reform of Section 2 of the Official Secrets Act and about the need to introduce freedom of information legislation. In both areas we were successful. All I am saying is that, before we go down this route and require the Prime Minister to consult with whomever, we should have in mind that it is possible that people might be blocking appointments in an unfair manner.
Amendment 8 deals with the issue that the chair of the ISC is to be chosen by its members. This is the product of muddled thinking among those who fail to understand the internal dynamics of the committee. It is as if someone has sat down to devise systems of greater accountability that enable them to avoid taking the big question on going for full Select Committee status. In my view, the chairman needs the respect of the agencies, and new members appointed in a new Parliament will have no knowledge of the relationship between the chairman or any member of that committee and the agencies. There is a real danger that the Whips will seek to influence members’ decision about whom to appoint as chairman. It might be that there is an exercise in handing out the jobs going on. I feel that it is wrong that the committee should be placed in a position where it has to choose its chairman at the beginning of a Parliament. New members might be unduly influenced by previous members against their better judgment. As I said at Second Reading, if when I was selected to sit on the committee, I had been asked to vote for the chairman, I would never have voted for the noble Lord, Lord King of Bridgwater, because he was not top of my list of popular Secretaries of State, but within a matter of months I realised that he was ideal for the job. You need the experience of being on the committee before you start picking the chairman. What we are doing here is establishing a procedure whereby a chairman will be selected by new members going on to a committee without any knowledge of who they might be appointing.
If a chairman does not fully enjoy the trust of the agencies, there is a danger that that lack of trust may impede the work of the committee by denying access to material that is on the margins of the memorandum of understanding. There will be material on the margins of the memorandum of understanding to which the committee wants access, and it is vital that the chairman is someone who has been picked not by members of the committee but by the Prime Minister.
Lord King of Bridgwater
I agree with the noble Lord, Lord Butler, that the Bill is inadequate without Amendment 5 because it is simply a diktat. The fact that the Houses of Parliament vote on the members is not a really democratic position. We hope to see a more acceptable position.
The question I would put to the noble Lord, Lord Campbell-Savours, on Amendment 6 is: when he was active on some of these issues, would he have been appointed or recommended by the leader of the Opposition? He says that there was no way in which Prime Minister Margaret Thatcher, now the noble Baroness, Lady Thatcher, would have appointed him. Would the leader of the Opposition have appointed him?
I do not see how else you can do this. It is really down to the calibre, resolution and determination of the leader of the Opposition. In the end, he is in a very powerful position if he says, “These are the people I want. These are the people I think should be from the Opposition”. I do not know—and I do not know whether the noble Lord has any background on this—whether a Prime Minister has refused to accept the recommendation of the leader of the Opposition.
Lord Campbell-Savours
If my noble friend Lord Kinnock had been Prime Minister, he would not have been put off putting me on that committee because he was well aware of the campaign that we were running and its objectives.
Lord King of Bridgwater
I am grateful to the noble Lord for that comment.
I would like to support opposition Amendment 7. It has not been spoken to by the noble Lord, Lord Rosser, but I imagine that he will speak to it. It says that the chairman of the ISC should be “from the Opposition party”. In principle, I support that. One of the ways for the committee to gain credibility is for the chairman to be a member of the opposition party. However, I would not wish to see it written into the statute in this way. I will, if I may, cite my own experience. We started this committee with considerable uncertainty and considerable reservations in a number of quarters—in some of the agencies and other places—as to whether it would be reputable. A great effort was made by both the Prime Minister and the then leader of the Opposition to get a pretty experienced bunch. They were mainly ex-Ministers, and I think almost all were privy counsellors. The desire was to have a really credible, reputable and senior committee. It was certainly the most senior of all the committees, and in calibre and experience outranked the PAC, which would otherwise be seen as a pretty senior committee. That was the right way to start.
Lord Rosser
My Lords, I wish to talk about Amendments 5 and 7 in particular. Amendment 5, as the noble Lord, Lord Butler of Brockwell, said, lays down what happens if a person nominated for membership of the Intelligence and Security Committee is not then appointed by the House of Parliament from which they are drawn. The amendment lays down that in this situation,
“the Prime Minister shall nominate an alternative person”.
The Explanatory Notes to the Bill say that the purpose of the procedure in the Bill for nominating and appointing members of the committee,
“is to ensure that the Government retains some control over those eligible to access”,
highly sensitive information.
Many might feel that the use of the words “some control” in the Explanatory Notes rather understates the position from the government perspective. This amendment does at least make it clear that the relevant House of Parliament is not obliged to accept the Prime Minister’s nominee and that the Prime Minister cannot simply keep resubmitting the same name, or do nothing, but has to nominate an alternative person.
Amendment 7, to which the noble Lord, Lord King of Bridgwater, has already referred, is, certainly at this stage, rather more a probing amendment in the light of the enhanced role that the committee will have and the need for it to be seen as clearly separate from the Executive. It provides, as has already been said, for the chair of the Intelligence and Security Committee to be not only a member of the ISC, chosen by its members, but a member of the ISC from the opposition party. The Public Accounts Committee, for example, is chaired by a senior opposition MP.
It must surely be important that the Intelligence and Security Committee, bearing in mind its strength and oversight of the Government’s intelligence and security activities, and its role in this sensitive and potentially controversial area, is an all-party committee that is not only not open to pressure from government or the intelligence and security agencies in the work it undertakes but perceived as being not open to such pressure.
The Prime Minister has, under the terms of this Bill, considerable influence over the appointments to the committee. He or she is required to consult, not reach agreement with, the leader of the Opposition on nominations, and the two Houses of Parliament can only decline to accept a nomination and cannot appoint someone of their own choosing. Neither does the Intelligence and Security Committee have unchallenged powers to require information from the intelligence and security agencies, even though the members of the committee will all have been nominated through the Prime Minister, as the Secretary of State can veto the giving of information to the committee.
If the chair of the committee were to be not only a nominee of the Prime Minister but from the same party as the Prime Minister and from the same party as the Secretary of State, who could veto the use by the committee in carrying out its statutory oversight remit of the use of its power to require information from the intelligence and security agencies, that might well lead to a perception, no doubt unfairly, that the leadership of the committee and its most influential member was a little too close to the Government of the day, particularly bearing in mind that the objective of the Bill, as explained in paragraph 3 of the Explanatory Notes is to provide,
“for strengthened oversight of the intelligence and security activities of the Government”.
Lord Henley
My Lords, we have four amendments in front of us, all slightly different but all covering appointments to the committee. I will deal with them in turn. Amendment 5 seeks to ensure that if someone is turned down by Parliament the Prime Minister will have to make another nomination. This is something with which the Government entirely agree. However, the amendment is not necessary as it will be achieved by the current drafting of the Bill. If, under the appointments process in the Bill, the Prime Minister’s nominees are rejected by either House, the Prime Minister will have to make another nomination or nominations after consultation with the Leader of the Opposition. This is clear from the fact that the Bill requires the ISC to consist of nine members so if one is turned down another would have to be found. I hope that deals with the point made by my noble friend Lord Lothian, who asked what would happen in such cases. Where we differ is that the amendment in the name of the noble Lord, Lord Butler of Brockwell, insists that an alternative person should have to be nominated and we would like to keep the flexibility because there are occasions where it is possible for the Prime Minister to be able to renominate. It might be that one reached some sort of impasse in due course but it should be possible on occasions to renominate and that renomination might be rejected. Whatever happens, as the Bill is drafted, a ninth person would have to be put forward.
Turning to Amendment 6 from the noble Lord, Lord Campbell-Savours, he suggests that it should no longer be necessary to consult the Prime Minister. He said that he would never have been appointed if it had been left purely to my noble friend Lady Thatcher if she had been in opposition. Obviously, if we accepted the amendment proposed by the noble Lord, Lord Campbell-Savours, and removed the necessity to consult the Leader of the Opposition, there would be even less likelihood that he would be appointed, because my noble friend—or Mrs Thatcher, as she then was—would have made the decision entirely by herself, without consulting the Leader of the Opposition. We believe that it will be important in retaining cross-party support, just as it was when the original 1994 Act went through, requiring that the committee should be appointed by the Prime Minister after consultation with the Leader of the Opposition. For that reason, the Prime Minister should continue to consult the Leader of the Opposition before he nominates any such person.
Lord Campbell-Savours
This is quite an important issue. The question is very simple. If the Prime Minister, Margaret Thatcher, had been Leader of the Opposition, would she have allowed someone like me, with my record at that time, to go on this committee? The answer is no, which is why I believe that this provision is wrong.
Lord Henley
But the noble Lord is also saying that he wants to delete the ability to consult the Leader of the Opposition and leave it entirely to the Prime Minister. I have to say that the Prime Minister probably would not have appointed him either, so the issue does not arise. What we suggest is that, to maintain cross-party support—I suspect that everyone agrees on this except the noble Lord himself—there should be a degree of consultation between the Prime Minister and the Leader of the Opposition on this issue. The simple fact is that consultation did take place and we are all very happy, my noble friend Lord King included, that he was taken on to that committee.
Rather than dealing with the amendments sequentially, I come to Amendment 8 before Amendment 7. It comes from the noble Lord, Lord Campbell-Savours, and relates to the election of the chairman. The noble Lord raises concerns about the Government’s proposals for appointing the chair, arguing that the chair’s appointment should again be made with the agreement of the Prime Minister and the Leader of the Opposition. I notice that the effect of the amendment would be for the chair to be appointed by the Prime Minister and that there would be no requirement to consult the Leader of the Opposition. So I suppose that the chances of the noble Lord having got on to the committee or being appointed as chairman would be even more remote, but that is something that he can consider in due course.
As we explained earlier, we believe that the changes that we are making to the ISC status are designed to bring it closer to Parliament and increases public confidence in it. That is why the Government propose that the chairman of the ISC will be appointed by Parliament and will report to Parliament as well as to the Prime Minister. The noble Lord seemed to suggest that with a new Parliament, the new Members would not know each other. I suspect that with the experience of the members on that committee, as has happened in the past, it will normally be the case that the committee will know who is the appropriate person as well as anyone. It is quite right, therefore, that those members should make the appointment.
Lord King of Bridgwater
I am trying to remember how many new Members came on to the committee. There was a big upheaval. I remember that the noble Lord, Lord Gilbert, for example, was a member of the previous committee; he was whisked off to be a Minister. It was a pretty major change of cast. With great respect to my noble friend, who says that new members of the committee might be expected to know about these things, a number of them might have had no previous experience whatever of the committee.
Lord Henley
My Lords, I will look very carefully at the point that my noble friend has made and at the statistics relating to 1997 in particular, which was one of those years in which there would have been a big upheaval, with that particular new Parliament. Off the cuff, I do not know who was on the committee and who came on, although perhaps my noble friend can remember. But in the main, with the relatively experienced parliamentarians who will be on this committee, I think that it is well suited to making the decision itself.
Lord Campbell-Savours
You might, as a Member of Parliament who had been in the House for years but had no contact with intelligence, not understand the vital nature of the relationship between the agencies and the chairman. It is critical to the whole operation. I cannot see how someone who goes newly on to that committee could have any understanding of that relationship. If the relationship is wrong because the wrong person has been appointed, the committee could be denied information. If the objective behind the Bill is to secure more access to more operational material, we are undermining the whole arrangement. Ministers should reconsider this point. It is all right saying that it is more democratic and accountable and that Parliament is more involved—but if it does not work, do not do it.
The Marquess of Lothian
My noble friend Lord King of Bridgwater was talking about the noble Lord, Lord Gilbert, leaving the committee. Between 2007 and 2009, two chairmen of the committee were promoted to being Ministers and left the committee. I wonder how the committee would have been able to elect successors to those two when we needed someone of sufficient seniority to carry out that task.
Lord Henley
I think that my noble friend possibly means that two members of the committee were promoted to being Ministers, rather than two chairmen.
The Marquess of Lothian
No, they were two chairmen. The first was Paul Murphy and the second was Margaret Beckett.
Lord Henley
Yes, my noble friend is correct in that. I was looking at the wrong dates—he means between 2007 and 2009. I will obviously have to examine this and, as I promised my noble friend Lord King, examine the statistics in relation to the 1997 Parliament, when there would have been the biggest change in the membership, rather than the subsequent Parliaments. In brief, I stick to my position that it would be better for Parliament to make this decision, rather than the Prime Minister, but I note the concerns put forward by colleagues from all sides, or both sides, of the House.
I turn to Amendment 7, which presents the idea that, whatever happened, the chairman of the committee should be drawn from an opposition party. Again, my noble friend Lord King had some sympathy for this amendment, but when one looks at the history of the committee and the distinguished service of my noble friend, who served as chairman when our party was in government, and as chairman in opposition, from 1994 to 2001, it is obvious that one can do it from either side. To make a statutory requirement that a chairman had to come from the opposition party would unnecessarily limit the available candidates for that job. My noble friend rightly pointed to the problems that might have arisen in 1997 when, after a very long period in opposition, all the more senior members of the then opposition party going into government were likely to become Ministers, and there might not have been suitable people around. To curtail who could be chosen would reduce unnecessarily the pool from which the appropriate chairman could be taken.
Having said that I would listen to comments made on Amendment 8, proposed by the noble Lord, Lord Campbell-Savours, I hope that the explanations that I have given on the other Amendments 5, 6 and 7, as well as Amendment 8, will be sufficient for the noble Lord to withdraw his amendment.
Lord Butler of Brockwell
My Lords, on the basis of what the Minister has said, I am happy to withdraw Amendment 5.
Baroness Hamwee
Baroness Hamwee
My Lords, grouped with this amendment are Amendments 11 and 12 in the name of the noble Lord, Lord Campbell-Savours, on rather different points from mine. I will confine my remarks to my amendment. Schedule 1 provides that members will hold office for the duration of the Parliament in which they are appointed. I do not read later parts of the paragraph, in particular sub-paragraphs (6) and (7), as applying to membership. This raises two issues, which I shall ask about in what is no more than a probing amendment. One is whether there should be a committee in existence during the period when Parliament is prorogued; the second is about the delay in appointing members after the next Parliament has started to sit. On the latter point, I have heard reports that some Select Committees have taken a very long time to be established—up to six months. I am certainly not arguing that the approach of this amendment is the best way of doing it. If there were to be some amendments, the arrangements would need much more detail, but I am worried that there would be an issue if there were a long lacuna. I do not know whether the Minister can help the Committee regarding the position of the current committee. Are members appointed until the appointment is terminated in a positive fashion, whether or not Parliament has been prorogued? Clearly, if an MP is not re-elected, he would not be expected to retain membership.
The ISC is so important that I would be reluctant not to have some sort of formula for unbroken oversight. It could be argued, of course, that its work is largely retrospective so it would not matter if there was a gap, but I would not accept that argument. It occurs to me that one could deal with continuing membership if enough Members of your Lordships’ House were appointed for there to be a quorum over the period of Prorogation, but that is unlikely to commend itself. There is also the question of the period between Parliaments and any delay in appointment once a new Parliament sits. I beg to move.
Lord Campbell-Savours
My Lords, I want to speak to Amendments 11 and 12, standing in my name. Amendment 11 deals with the words in Schedule 1, paragraph 1(2)(c), which states that,
“a resolution for the person’s removal is passed in the House of Parliament by virtue of which the person is a member of the ISC”.
In other words, there has to be a resolution of Parliament to exclude someone from the ISC. Have those who wrote this Bill thought that through? A resolution in the House of Commons, or even in this House, would mean that the person who is being removed from the ISC, with all the material that they have gained over the years on matters relating to national security and who may well be angry with the chairman and the system, is given free rein to get up on the Floor of the House of Commons and, in their defence on the back of the resolution, say why they should not be removed from the Intelligence and Security Committee. This is a very silly proposal. It is highly dangerous and has clearly been worked up by someone who did not understand the implications of what a resolution of the House of Commons means for public debate. It should be removed.
How could someone be removed from the Intelligence and Security Committee? First, one would go to them privately and explain the reasons why they should resign. I am sure that the Whips and the system have all sorts of ways for removing Members of Parliament without allowing them free rein to get up on the Floor of the House of Commons on the back of the resolution to defend themselves. That is my case for Amendment 11. I seek the exclusion of what I regard as a highly irresponsible proposition.
I now turn to Amendment 12, which deals with sub-paragraph (3), which states:
“A member of the ISC may resign at any time by notice given to … in the case of the member who is the Chair of the ISC, the Speaker of the House of Parliament by virtue of which the person is a member of the ISC”.
Why should the Speaker be informed? This is not a parliamentary committee; the Speaker is not a member of the committee and has no relationship with it. The committee is external to Parliament, however we want to describe it. I cannot see any explanation why, other than the fact that those who devised these sections of the Bill believe that it is necessary to have a model where they have the imprimatur of Parliament on the label. I think it is ludicrous, unnecessary, and again it should be removed from the Bill. It is trying to lead the public to believe that this is truly some committee of Parliament. It is not, because it lacks the privileges and the powers that a parliamentary committee has as a Select Committee. That is my case.
Lord Henley
My Lords, I will return to the noble Lord’s amendments in due course, but I will start with Amendment 10 in the name of my noble friend Lady Hamwee. This seeks, in effect, to continue the committee’s existence for a period of days after Dissolution until a new Parliament is created. It must be remembered that the absence of the ISC for that short period of Dissolution does not mean that the agencies are unaccountable. There are other mechanisms for agency accountability, not least through their accountability to Ministers, who obviously continue in their role throughout that Dissolution. The absence of the more considered work of the ISC during that relatively short period will not result in some sort of accountability deficit. Naturally, continuity between Parliaments is very important, but it is not necessary to have the old ISC stretch into the next Parliament to achieve this. I assure my noble friend that we do not need legislative provision for a new incarnation of the ISC to inherit the documents, for example, of its predecessor. Under the existing regime this has happened without any difficulty. Furthermore, the provisions in sub-paragraphs (6) and (7) of paragraph 1 of Schedule 1 allow the ISC in a new Parliament to pick up work that was ongoing at the time of Dissolution of the previous Parliament.
I turn to the amendments of the noble Lord, Lord Campbell-Savours, who seems particularly worried about mechanisms for removing individuals from that committee. He seemed to suggest some sort of equivalent to the idea of the Whips giving them a bottle of whisky and a revolver and telling them to sit quietly in a room until they have resolved matters by themselves. I do not know if that was quite what he was suggesting, but we believe that if Parliament appoints, it is plain that Parliament should also have the power to remove. That fits the broad thrust of what we are doing. That is the reason for the provision that the noble Lord seeks to leave out, ensuring that an ISC member can be removed involuntarily from the committee only by virtue of a resolution passed by Parliament. Again, this is an important safeguard to the ISC’s independence and means that the final say on its membership is with Parliament.
Lord Campbell-Savours
Does the Minister foresee circumstances in which an angry young man or woman who was excluded from the committee on the back of a resolution would, under privilege in the House of Commons, argue a case that might even breach national security? If he, or those who have devised this provision, can foresee such circumstances, does he not think that this provision bears further responsibility, despite what the noble Lord said?
Lord Henley
My Lords, the same could apply to whoever was removing that person. We are saying that Parliament should, in conjunction with the Prime Minister, have the responsibility for appointing, and therefore that Parliament should therefore have the duty to remove. If we accepted the noble Lord’s amendment, can he not see possible occasions where there was no possibility of removing a member of the ISC from office, no matter what they had done, unless they ceased to be a Member of their House of Parliament—this place or another place? I do not therefore accept the noble Lord’s amendment.
As regards his second amendment and the idea that the Speaker of either House has to be notified, I really do not see why notifying the Speaker as a means of resigning from the committee causes any problems at all. Both the Government and the committee are of the view that the chair should no longer be removed by, or required to resign by giving notice to, the Prime Minister. Again, the committee has previously been criticised for being a creature of the Executive. If the committee is to be a creature of, or belong to, Parliament, it seems far more appropriate that a person should have to resign by the means proposed rather than tendering their resignation to the Prime Minister.
I therefore hope that my noble friend will withdraw her amendment, and I am sure that the noble Lord will not want to move his amendments.
Baroness Hamwee
My Lords, I clearly did not explain my amendment adequately. My noble friend responded on one point, the continuity of the committee, but he has not dealt with my concern about delay in appointing members in a new Parliament. Can he help the Committee on that and give any assurances?
Lord Henley
My Lords, both Houses are normally reasonably speedy about these matters and we will obviously take the issue very seriously. I do not think that there has previously been a delay in appointing the nine members after appropriate discussions, and I cannot see that there would be any dangers of delay in the future, but whoever is in government will obviously have to bear in mind the importance of these matters and ensure that a new committee is created as quickly as possible.
Baroness Hamwee
My Lords, I have no idea about the appointment of the ISC but I discussed this matter with a Member of the Commons who has considerable experience of membership of Select Committees. It was from him that I heard that in one case there was a delay of almost six months in appointing the committee. It is that situation that I am seeking to avoid. I do not expect the Minister at this point to say anything other than what he has said, but the issue is serious in my head.
He said that legislation is not needed for the continuity of work of the committee or of the transfer of documents. I was not arguing that point at all. As I said, this is a probing amendment. I am not sure that I have probed quite far enough, but of course I beg leave to withdraw the amendment.
Baroness Williams of Crosby
My Lords, let me say right away that I come to this issue completely as a laywoman because I have never been a member of the Intelligence and Security Committee, I have never been asked to be a member and I do not purport to have the arcane wisdom that is obviously involved in the intelligence committee. I speak simply as a laywoman puzzled about this point.
I find it strange that the quorum is as low as three—that is to say, one-third of a committee of nine. It puzzles me for two reasons. The first is perhaps best summed up by the rather agreeably brusque remarks of the noble Lord, Lord King of Bridgwater, who explained, when referring to Australia, that an “awkward squad” had decided to take over that country’s intelligence and security committee, and that it would therefore be open to the possibility of a small group effectively influencing the ISC in ways that might be troubling over the long term.
However, I have a rather different thought in mind. Sadly, many Parliaments around us are increasingly polarised, whereby the Government of the day and the opposition find it very hard to work together. The United States is just one example of that. If you have in a polarised parliament or congress a party that decides it will not co-operate with other parties even on such an important committee as an intelligence and security committee, the committee would be nullified by itself and it would be hard to reach overall decisions. Clearly, on a matter of such importance, it is important that a consensus, if one can be found, should be sought.
There is also another objection that I feel strongly about. The decision of a committee as important as the ISC should at least have to depend upon some level of attendance in addition to the three who may represent one party in order to give the committee the kind of credibility that the noble Lord, Lord Campbell-Savours, and many others referred to when they were talking about public attitudes towards the ISC. I should therefore have expected a larger quorum of at least four or five, rather than three, as stated in the Bill.
The main point of the amendment is to persuade the Minister to think about whether that quorum is not a little too small. There is a real danger that a faction could dominate the committee in a way that would be completely destructive of its credibility over a period of time. I therefore ask him to consider this issue, explain why the figure in the Bill is as low as three—for all I know, it always has been three and I do not know if changing it would be a bad precedent—and to say whether we could have a figure more convincing in terms of carrying public opinion with it.
I have no wish to delay the House but I am surprised that no other amendment has been tabled about the size of the quorum. That may be because I am not part of this wise and arcane group, and I am delighted now to see the noble Lord, Lord King of Bridgwater, to whom I have just referred in relation to the quorum being as low as three, which makes it possible for an awkward or fanatical club effectively to control the discussions of the ISC. The noble Lord quoted the case of Australia, as regards the danger that the committee, if there were a low quorum, could be dominated by a small faction or extreme group of some kind. I hope that he will not mind that I referred to him. I beg to move.
Lord Henley
My Lords, I start by being faintly flippant. I remind my noble friend that the quorum for this House and this Committee is only three—one to speak, one to listen and one to sit either in the Chair or on the Woolsack. Even with the crowded House that we have at the moment, we represent probably well below a third or even a tenth of the membership of the House. I should also remind my noble friend that my understanding is that it is the practice of most Select Committees to have a quorum of three or a quarter of the committee’s membership. Three is therefore the number that we have picked. Bearing in mind that the ISC is a relatively small committee with a membership of only nine, three represents a third of the membership.
Having said that, one should take my noble friend’s amendment seriously but we have not, as far as I am aware, had any problems with the quorum. A quorum of five might be overly restrictive, particularly if you take the view that the function of a quorum should be to provide protection against the possibility of a small number of persons on a body taking actions or decisions that could be unrepresentative of that body as a whole.
Lord King of Bridgwater
I think it fair to say that this is a Committee that, quite exceptionally, has a remarkably high attendance level, and this is something we are quite proud of and which, I am sure, has continued. I do not ever recall any problem about a quorum. In fact, I recall very few occasions when the whole Committee was not on parade and, as anyone familiar with House of Commons Select Committees will know, that is often far from being the case.
Lord Henley
I am very grateful to my noble friend for giving me that assurance. I remember when, many years ago, I was first put on a Committee—the Joint Committee on Statutory Instruments, possibly the outer Siberia of committees. I think there were seven Members from each House and a quorum of two from each House. On a committee of that sort it was often quite difficult to reach the quorum of both Houses, but some of us manfully attended week in, week out, to preserve it. I am very grateful to my noble friend for making the more serious point that the Committee does, in the main, have not just a quorum but is normally fully attended by virtually all Members; that really answers the points of the noble Baroness, Lady Williams.
Baroness Williams of Crosby
With great respect, I do not think that what the noble Lord, Lord King of Bridgwater, said went very far towards supporting the argument that because there is such good attendance at this extremely important committee there is a case for a very low quorum. On the contrary, it seems to me that Members take their duties so seriously—and rightly so, given the importance of the subject matter—that it would not be disruptive to increase the quorum, at least to some extent, from the present three.
Again with great respect, the fact that around 5% of the possible attendance of the House of Lords is present at this particular discussion is not really the point because, of course, noble Lords attend when they are expert or knowledgeable on a particular subject and do not come when this is not the case. In the case of the Intelligence and Security Committee, one assumes from its very careful appointments process that most members are people with a strong commitment and very considerable knowledge of the fields in which they operate.
Lord Henley
My Lords, I hope my noble friend heard in my opening remarks that I was being faintly flippant when talking about this House. I agree that this is a very important committee. I am very happy that attendance is well above its quorum number—that it is always fully quorate. However, I do not think it is necessary to restrict it in such a manner by bringing in an artificially high quorum, which would be completely unlike all other committees. I think that three out of nine is a perfectly effective number and I hope, therefore, that my noble friend will feel able to withdraw her amendment.
Baroness Williams of Crosby
I beg leave to withdraw the amendment in the knowledge that I shall certainly return to this issue on Report.
Baroness Hamwee
“(a) the ISC shall meet in public save when it determines that members of the public shall be excluded,(b) a determination under paragraph (a) may be made prior to the meeting to which it applies and may apply to more than one meeting.”
Baroness Hamwee
My Lords, I shall speak also to Amendment 15 as well as to Amendment 17, which was tabled by the noble Baroness, Lady Smith of Basildon, and has been grouped with my amendments because we cover very similar ground. Indeed, we have covered a fair bit of the ground already during this afternoon’s discussions, including the subjects of open meetings, question times, public hearings and so on. I am, of course, not so naive as to think that the ISC needs to meet only occasionally in closed session, but I do think it a good discipline to ask oneself regarding every meeting whether it needs to be closed. I am therefore proposing that open discussions be the default arrangement. It is also important to justify why a meeting is closed, if it is, and to that extent I think that Amendment 17 asks the right sort of question, although I would have put it differently, saying that “proceedings should be public unless” rather than “private if”. However, I think that these are all probing amendments.
The Marquess of Lothian
I am grateful to the noble Baroness for giving way. Could she perhaps outline to the House what sort of meetings of this committee should be held in public?
Baroness Hamwee
I am saying that the committee should consider whether there is a reason not to hold a meeting in public. My approach to this would be to say that each move into closed session should be considered quite positively. I look at it the other way round; it is a different philosophy and I accept that.
I have provided in Amendment 14—these are probing amendments—that a determination could be made to apply to more than one meeting. I cannot believe, given the committee’s obligation to the public, that every meeting should be held privately unless there is a good reason to hold it in public. As I say, it is a difference in philosophy. Amendment 14 is, as I say, probing, and I accept that a decision could be taken to cover more than one meeting.
Amendment 15 is rather different. I think that there is a place for something like a public question time. The noble Baroness’s amendment suggests annual hearings with the heads of the agencies and the Secretary of State, and I think that that is a good idea. In both of our amendments, we suggest that the public should have a hand in setting the agenda of the committee. I beg to move.
Baroness Smith of Basildon
My Lords, I shall speak to Amendment 17 and then perhaps say something about Amendment 15. The noble Baroness, Lady Hamwee, might have misunderstood our intention in Amendment 17, because I think that our intention differs very much from hers in Amendment 15. Amendment 17 is essentially, as she said, intended to probe the idea of public hearings. This idea has had a mixed response in your Lordships’ House in both today’s debate and earlier debates. What is vitally important is that the public should have confidence in the system of oversight of our intelligence and security services. I think that that has been quite clear in the early amendments to the structure and kind of committee that we are seeking. As has also been previously mentioned, the ISC itself has admitted that reform is needed urgently. One of the areas of reform that it stresses is the need to improve public confidence in its work and in its ability to function as a strong and independent check on the work of the intelligence community. Just as we would say that justice does not just need to be done, it must also be seen to be done, the scrutiny role of independent checks and balances does not just have to be done, it must also be seen to be done in order to create public confidence. I have to say to the Minister that, looking at the legislation before us, I do not think that the Government have given enough thought to the role that visibility can play in building up that kind of public confidence.
We have heard mixed responses to the public hearings held in the United States by the Senate Select Committee on Intelligence and the House Permanent Select Committee on Intelligence with the heads of the intelligence community. Those hearings in public session—many of them televised—are a significant aspect of this issue and have produced some important public admissions by the agencies’ heads. However, I think that there is a risk of them being seen as stage-managed, as we heard earlier from the noble Marquess, Lord Lothian.
We have to recognise that a large part of the committee’s work involves hearing evidence of a highly sensitive nature that cannot safely be publicly disclosed. However, it is important to move towards a system where public hearings are considered not automatic but more routine. I do not go quite as far as the noble Baroness, Lady Hamwee, although I think that we are going in the same direction, as I do believe that such hearings should be accepted more and be more routine. Therefore, Amendment 17 would expressly provide for the ISC to hold public hearings where it is judged that there is no significant risk of the disclosure of sensitive information, as defined by the Bill, or information that risks undermining the interests of national security. The noble Lord keeps chastising me for the wording of the amendment but I hope that he understands the theme that we are putting forward here. In effect, the amendment sets the same threshold for judging the risk of the disclosure of information in public hearings as the Bill does for the disclosure of information to the committee.
Perhaps a more appropriate set of conditions could be used here to ensure that public hearings do not lead to the jeopardising of our national security or of the work of the intelligence services. That is something that I would be happy to discuss. However, it is the principle of routine public hearings that we are trying to establish with this amendment. Similarly, annual public hearings with the heads of the intelligence services, as provided for in Amendment 17, would, as they do in the United States, send a very public signal about the accountability of our intelligence community to Parliament through the ISC.
There is perhaps just a slight difference of emphasis in our amendment compared with the noble Baroness’s Amendment 14, in that we do not think that public hearings should be automatic. However, I am slightly curious about Amendment 15 and the suggestion of a public question time. I wonder whether that would change the role of the ISC. It seems to me that its role is very specific—that of oversight of the intelligence community and intelligence agencies—and I am not sure what would be gained by putting its members into the public eye, with them being questioned by the public, as I think is the noble Baroness’s intention. I should have thought that public confidence would be achieved by members of the Intelligence and Security Committee being seen to do their job robustly and ensuring proper scrutiny and oversight of the intelligence community. This seems to be more about oversight and scrutiny of the intelligence committee by the public, although I should have thought that that was a job for Parliament rather than for the public. I should be interested to hear the noble Lord’s comments on the amendments.
Lord Skelmersdale
My Lords, I wish to say a tiny word on Amendment 17. I note that it begins:
“The ISC may decide to hold some of its proceedings in public, subject to sub-paragraph (2)”,
and so on. I ask the Minister whether there is anything in the Bill to prevent the ISC meeting in public, should it so wish.
Lord Campbell-Savours
My Lords, perhaps I may intervene briefly. Amendment 14 says that,
“the ISC shall meet in public save when it determines that members of the public shall be excluded”.
I think that that would put the fear of God into the agencies and I am afraid it would create a climate of suspicion which the committee does not deserve. I am not saying that it should not meet in public on occasion, as I shall explain in a minute, but putting words such as that into the Bill would be very unpopular within the agency. It needs to have confidence that Parliament is able to handle the material with the necessary safeguards.
Amendment 15 says:
“The ISC shall not less than once in each calendar year hold a public question time for which it shall determine applicable procedures”.
In a curious way, there may be something in that amendment. I remember—and the noble Lord, Lord King of Bridgwater, may recall—that we did occasionally meet in public. After the Mitrokhin inquiry, we invited journalists in to ask us questions. Therefore, in a way, the structure is there to do it. The question is: what is on the agenda? I can foresee circumstances in which there may well be an item of some controversy or just a general report where the committee may want to meet in public, and the public—basically, journalists—ask questions. However, Ministers may want to ponder over the exact wording of the amendment.
Finally, Amendment 17 says:
“The ISC may decide to hold some of its proceedings in public, subject to sub-paragraph (2) … The ISC may not hold public hearings under sub-paragraph (1) if it might lead to the disclosure of”.
The problem is that if members of the agencies, or indeed Ministers, are brought in as witnesses to answer questions, their refusal to answer, for perfectly legitimate reasons of national security, might send a hare running in the media which gets completely out of control. Although I accept that there are conditions in which the public or journalists should be able to ask questions, we have to be very careful about witnesses who might be called before the committee in those circumstances but who might feel that they cannot answers the questions in open session. The reason that parliamentary Select Committees meet in private is to avoid those very problems.
Therefore, again, I give qualified support but I think that there would be certain conditions under which it would be quite wrong for the committee to meet in public.
The Marquess of Lothian
My Lords, perhaps I may intervene briefly to say that there is nothing to prevent the ISC in its present form holding public hearings. Indeed, the Prime Minister in the previous Government, Gordon Brown, called on the committee to hold public hearings, and we have been looking very closely at ways in which this can be done. Therefore, there is nothing in Amendment 17 that I find very difficult because, first, there is the principle and, secondly, the restrictions on it which would be required for any public hearing.
However, following on from what the noble Lord, Lord Campbell-Savours, has just said, the first point to bear in mind is that a public hearing should not end up as a farce in which, because of the subject matter, every significant question that is asked is answered by the famous phrase, “I can’t answer that question”. The credibility of the committee would suffer very quickly if we went down that road. Secondly, it has to be an honest process. We cannot have a subject which is so anodyne and so completely rehearsed that in the end the public see through it. That, again, would be to the disadvantage of the committee.
We are looking closely, whether under this Bill or even before the Bill goes through, at whether we can identify subjects that are of genuine public interest and where the agencies or the sponsoring Ministers will feel able to answer at least the majority of the questions. We are looking at holding a public hearing in which the members of the committee, in its normal form, ask the questions and the answers are given. I think that that is slightly different from the sort of press conference to which the noble Lord, Lord Campbell-Savours, referred, which we have also undertaken on a number of occasions. This would be a case of the committee asking questions of the agencies, which is, after all, the true role of the committee.
Lord King of Bridgwater
My Lords, I shall take together all the amendments that deal with how the ISC can interface more clearly with the public. I listened with interest to the noble Baroness, Lady Hamwee, and I wondered whether her view on the meetings in public and the hearings that might subsequently be held in public, which is raised in the amendment of the noble Baroness, Lady Smith of Basildon, is that those would be televised as well. This is an option in Select Committees, and hearings that are held in public will presumably be open to television coverage.
Baroness Smith of Basildon
My Lords, I did not hear what the noble Lord said as he turned away from the microphone. Will the noble Lord repeat what his concern was because we missed it on these Benches? I did not hear what his objection was.
Lord King of Bridgwater
The point was that it may be decided to hold some proceedings in public which presumably would be televised as well. The noble Lord, Lord Campbell-Savours, referred to a point that I was also going to refer to. The annual appearance of what was previously the ISC was the publication of the annual report. We used to have a press conference after that and it was televised and open to all the journalists. Of course there could be an inquiry of one sort or another that came outside the annual cycle. The classic illustration of that was Mr Mitrokhin and the Mitrokhin report. I have a copy of the press release that we put out on 13 June 2000 on the Mitrokhin report.
It is interesting about pushing back the boundaries. This is pervasive and accepted by the Government in the whole concept of the initial clauses of this Bill on the wider remit that has grown for the ISC. The committee agreed to conduct this inquiry on the understanding that it would have access to all the relevant documents, including advice given to Ministers as well as evidence from key witnesses. We were given this access. This was never included in the original Bill and was an illustration of the way in which the committee gradually covered a wider area and had greater access. The idea that the committee hides away in private and is not prepared to appear in public is not right.
Amendment 17, in the name of the noble Baroness and her colleagues on the opposition Front Bench, states that the committee,
“may decide to hold some of its proceedings in public, subject to sub-paragraph (2)”.
Sub-paragraph (2) states:
“The ISC may not hold public hearings … if it might lead to the disclosure of—
(a) sensitive information”.
That is the whole problem. As the noble Lord, Lord Gilbert, who has now joined us as a former member of the committee, said, if you have an effective committee with effective questioning, where may it lead? If you are discussing serious issues, you cannot be sure at the start of it. You may have started out with a wonderful public agenda but things may emerge in the evidence that make it thoroughly undesirable at that stage that it is held in public. I was trying to think what the issues are because I was myself in favour of trying to see whether the committee could have the occasional public meeting, not as an obligation and having to explain each time why it was not having it in public, but just to show that there are issues, that it is an effective committee and that it could hold the heads of the agencies to account.
One of the problems when we started was that the heads of the agencies did not always want to appear in public and have their faces too easily recognisable. That situation changed and the noble Baroness, Lady Manningham-Buller, was an exception. She was extremely good at bringing a more public face to the essential activities of MI5. I wondered about the sort of subjects on which we could see the committee in action. One of them might be recruitment for the Security Service: the issue of whether it is recruited from too narrow a sector of society, the efforts that the agency is making to recruit across a wider section of community, the importance of diversity, and the importance of access to a wider range of languages and of being involved with and recruiting from all sections of our multicultural society, which is so important at the present time. That is the sort of issue—I got a small nod as I said this—that I thought could be handled in a public hearing.
I would like to have had a public hearing on the accommodation arrangements of GCHQ and our criticisms of the control of that project. This was one of the biggest scandals that we uncovered during our time in Government, where the estimate for the expenditure on the new facility in Cheltenham, the donut, which is now well photographed, rocketed beyond an initial brave estimate of £20 million and ended up closer to £220 million. Issues of accommodation are perhaps relevant, although you can get bogged down in all sorts of tabloid sensations. One of the accommodation issues was the cost of the trees on the balcony of SIS and who was paying for those. The committee has to be careful not to get bogged down—we always took this view—in chasing the individual tabloid shock-horror story of the week and to concentrate instead on the issues that are of fundamental importance.
There is a real difficulty in trying to say that in principle the hearings should be in public. My noble friend Lord Lothian illustrated to those who were not at the earlier session what happened with the Senate Intelligence Committee and how it was a put-up job with planted questions and planted answers because that was all it felt safe to handle in public. I do not think that helps credibility and it looks as though the committee is just part of the conspiracy.
I do not support the idea that in principle there should be public hearings and that the committee should explain why if they are not, which is the theme of these amendments. Public confidence is best achieved by taking the opportunity where possible for a public hearing and showing the sort of way that the committee operates but not having it as a presumption in every case.
Baroness Manningham-Buller
I am pleased to hear from the noble Marquess, Lord Lothian, that the committee is currently thinking of whether there are ways that some things could be held in public because I think it is the case that there are issues—the noble Lord, Lord King of Bridgwater, suggested some—that could conceivably be considered in public without any danger to national security. Having said that, I would also say that, whenever I gave evidence to the committee, on practically all occasions I was discussing secret information and very often top secret information. Therefore, the time that you could have an open hearing would be very restricted indeed. On whether this would improve public confidence, it would be narrow so it might or might not. However, if the committee is thinking that way, that is welcome.
Lord Henley
My Lords, we have three amendments in this group, all of which are concerned with the ISC meeting in public and how that should operate. I appreciate the concerns behind the amendments but similarly I have a number of concerns about the idea of creating any formal power and, in the case of annual hearings, a duty to hold public hearings. I am sympathetic to the noises made by the noble Lord, Lord Campbell-Savours, when in relation to Amendment 14 he suggested it might put the fear of God into some of the agencies involved to see such an amendment down.
Perhaps I may go back through the history of these matters to set things in context. In The Governance of Britain Green Paper of 2007, a series of reform proposals were made aimed at bringing the ISC as far as possible in line with other Select Committees. One proposal was for some hearings of the ISC to be structured to allow unclassified evidence to be heard in open session. However, as Members of the Committee will know, those sessions did not happen with any frequency. As my noble friend Lord Lothian pointed out, the committee has the power to have open sessions if it so wishes.
Building on this, the Justice and Security Green Paper stated that while the ISC’s meetings would still as a rule have to take place in private, both the Government and the committee were committed to the concept of public evidence sessions where these could be held without compromising national security or the safety of individuals. The Bill does not need to include a specific provision to enable public evidence sessions. Both the existing ISC, created by the 1994 Act, and the ISC that is provided for in the Bill have the power to determine their own procedures. That is sufficient for these purposes. In this way, there is very little difference between the position in the Bill and that proposed by the noble Baroness, and for that matter by Amendment 17. The crucial difference from Amendment 14 is that we do not start with the default position that sessions must be in public unless certain conditions are met.
There are very significant practical issues that must be addressed before public evidence sessions can take place. As I am sure the Committee will appreciate, introducing public evidence sessions for a committee that will in the vast majority of its work be concerned with very sensitive and highly classified information will be very challenging. The Government are in discussion with the committee and remain committed to making this work in practice—for instance, on issues such as appropriate subject matter, timing and having appropriate safeguards against unauthorised disclosure of sensitive information. I have already argued that the work of the ISC must be done largely in private. As only a very small amount of the evidence that it hears, whether written or oral, is unclassified, the default position suggested in Amendment 14 that it should meet in public is neither appropriate nor practical.
On Amendment 15 there are a number of different models for what could be considered a public question time. In one model, members of the public could ask questions directly to members of the ISC on their oversight role. That format is sometimes used in local government. Naturally it is in everyone’s interests that there is an understanding among members of the public of the ISC and the valuable function that it performs. However, the Government have concerns that a question time of the nature suggested by Amendment 15 would pose significant risks and would be ultimately unworkable. Again we make it clear that the committee has access to extremely sensitive intelligence information, public disclosure of which could cause significant damage to national security. Therefore, the way it operates will inevitably be different from that of departmental Select Committees, and it must not necessarily be conducted in public. I hope that that explanation will satisfy my noble friend Lady Hamwee on her Amendments 14 and 15.
On Amendment 17, I appreciate that the noble Baroness, Lady Smith, was probing. The answers that I gave on what we want to do following the 2007 Green Paper and the more recent one indicate that where possible we would like openness in order to allow public confidence in the committee to be maintained and enhanced. However, it is not necessary to go down the route suggested by the noble Baroness in her amendment. As I made clear, it is available to the ISC to do that should it so wish. Of course, we will continue to have discussions with the committee about the most appropriate manner in which to deal with that. I hope that my noble friend will feel able to withdraw Amendment 14.
Baroness Hamwee
My Lords, I am grateful for that response and for the comments made around the Committee. Of course I accept that there is nothing to prevent public proceedings, and what we have heard about the direction in which the committee is moving is very welcome. However, I felt that it was important to raise the issue in order to indicate what Parliament will expect in future. On the query about televising proceedings, I suppose that it is almost inevitable in this day and age. If proceedings are to be in public, what are the mechanisms for making them so? However, I accept the implicit point that that raises issues.
On the issue of question time, as the Minister said, there are a number of models for questioning the committee or the agencies. I am not entirely sure that there is an absolutely clear demarcation line between the two. One can imagine members of the public asking committee members why they had not asked about something. Perhaps it is a muddy area. The title “question time” can mean different things to different people. I accept that it might raise the wrong expectations. Nevertheless, it is a flavour of where work should be heading.
We have heard examples of possible subjects that might be covered. Some—perhaps not all—financial arrangements of the agencies, along with some aspects of the administration, might also be dealt with in public. The example of recruitment was very interesting. That would be a matter of broad public interest and I hope that it could be pursued. Of course, planted questions and answers are not enough, but are they not sometimes better than nothing? People will have different views on that.
I raise these issues because they are properly covered in debate at this stage of the Bill. I am not sure whether we will take them further. The issue remains very live, but whether it is an issue for legislation is perhaps a different matter. I beg leave to withdraw the amendment.
Baroness Hamwee
“( ) The ISC may consider the proposed appointment of the following including by questioning the prospective appointee at a meeting of the ISC—
(i) the Head of the Security Service;(ii) the Head of the Secret Intelligence Service;(iii) the Head of the Government Communication Headquarters; and(iv) such other persons as the Prime Minister may direct.”
Baroness Hamwee
My Lords, if I have not caused apoplexy so far, I will with this amendment. I have absolutely no expectation that the Government will be minded to accept the notion of confirmatory hearings. However, I tabled the amendment because we do not have to go the way of the United States. There are more and more examples in the UK of confirmatory hearings. They do not necessarily come with a veto—in fact, there are probably no hearings where a veto is granted to the examining committee. However, holding sessions where a nominee for a position can be questioned so that the public know what they are getting in the prospective appointee is part of opening up services to public understanding as well as addressing issues of accountability.
I mentioned the Greater London Authority earlier. I will not draw too many comparisons between the organisations, but confirmatory hearings of mayoral appointments were introduced just after I stood down from the GLA. I watched one of them on what I believe is called a narrowcast on the web and it was absolutely fascinating—not just the questions but the whole experience. One could tell so much from the body language of the person who was being questioned. I thought that it was a very useful session. This is not even in hope, let alone expectation, but I do not want to think that we have to do things exactly as the United States does or discard them because of that experience.
Lord King of Bridgwater
I have a point of clarification. Is the noble Baroness proposing that these hearings should be in public or not?
Baroness Hamwee
I suppose it had been in my mind for the reason that I gave about public understanding. The noble Lord raises a very interesting point as to whether one should look at this as not a public exercise. That would raise different and very interesting issues, and perhaps fruitful ones. I am sorry I did not go there in my comments. I beg to move.
Lord Campbell-Savours
I am glad the noble Baroness did not stipulate that the hearings should be in public because that would make it quite impossible for us to carry out this function, which in many ways I have great sympathy with. If we had had the opportunity when I was a member of the committee to interview proposed heads of the agencies prior to them taking over responsibility for the agencies, it would have been helpful to the committee. In so far as it had not been in public, no damage would have been done. Certainly we would have been able to make our concerns or satisfaction known to the agency, and during the questioning of the proposed appointee we could have raised subjects that would have given us, certainly in one case, a little more reassurance than perhaps I felt I had when the particular person was appointed. I think there is merit in this amendment as long as the hearings are in private.
Baroness Smith of Basildon
My Lords, the issues that have been raised are the very ones that I listened to the noble Baroness to hear as she moved her amendment and to try to see what the aim was. Her amendment does not mention public or private, although in her original comments she spoke of public hearings. It was not until the noble Lord, Lord King of Bridgwater, intervened that she conceded that there could be private hearings, which have more value than a public hearing would. I am no wiser and very interested to hear what the Minister has to say. I assume that he will accept the principle. My favourite bedtime reading, the coalition agreement, includes a specific commitment to strengthen the powers of Select Committees to scrutinise major public appointments. I should have thought that this comes under the remit of a major public appointment. The noble Baroness might have done the House a service to tease out whether the Government intend to honour that part of the coalition agreement.
Lord Henley
The noble Baroness is right: there was that commitment. She also knows that pre-appointment hearings are a relatively new phenomenon. Since 2008, Select Committees have conducted pre-appointment hearings for a number of posts, and there is Cabinet Office guidance on the process and on who should be heard. The important thing to note about the list of pre-appointment posts is that the posts concern public bodies, such as the chair of Ofcom and the chair of the Social Security Advisory Committee. The most recent one that my department had an interest in was Her Majesty’s Inspectorate of Constabulary. There is no suggestion that the pre-appointment process has been used to appoint civil servants. Indeed, the noble Baroness is not suggesting that before appointment each Permanent Secretary should go before the appropriate Select Committee.
The heads of the intelligence and security agencies are Permanent Secretary-level civil servants.
Baroness Manningham-Buller
They are not civil servants; they are Crown servants.
Lord Henley
I stand corrected by the noble Baroness, but it makes little odds; Crown servants are in fact at Permanent Secretary-level, although I accept that rebuke.
The recruitment process is therefore expected to follow the process for the appointment of Crown servants of such seniority. I could go through the details of the Constitutional Reform and Governance Act, but I can give an assurance that they are exempt from that. They will necessarily follow the spirit of the civil servant recruitment principles, which we consider to be the best process. We do not consider it to be the appropriate mechanism for recruitment to public bodies, whether the process is conducted in public or in private. It might be appropriate for the other posts that I mentioned but not for the public bodies that we are talking about.
Lord King of Bridgwater
I apologise to the Minister for intervening, as he has been extremely co-operative with the Committee in every respect. It seems to me that, on the whole principle of this pre-appointment hearing—we left open the question about public or private hearings—it is an important asset for the person about to be appointed if he has a successful hearing before the committee. It reinforces his position at the start of his work if the principle is accepted elsewhere.
We then have the argument about Crown servants and their exact role, and we go through a range of bodies, including Ofcom. I do not even know what Ofcom’s position is—whether it is in government or outside it—and exactly what its relationship is. However, I think that the principle of holding hearings has merit, and—to use a phrase I have used before—I have a feeling that they will come.
Lord Henley
I am afraid that on this occasion I have to disagree with my noble friend. There it is quite a distinction between Her Majesty’s Inspectorate of Constabulary or the chair of the Social Security Advisory Service on the one hand and, for that matter, the Permanent Secretary of the Home Office or the Permanent Secretary of any other department on the other. We suggest that the heads of the intelligence and security agencies fit in more appropriately with that later group rather than with the former group.
Baroness Hamwee
My Lords, I am not clear whether the Minister is saying that they fit in with that group or that they are exempt under the legislation, which he mentioned. Either way, process moves forward. It is not so very long ago that we did not have the Nolan principles, but they are completely accepted now. I, too, think that this may come, although it may not come in the Justice and Security Act 2012. However, we are in Committee, and I beg leave to withdraw the amendment.
Baroness Hamwee
“( ) arrange for it to be made available to advisers to the ISC who are the subject of specific security clearance who may then advise the ISC with regard to the information including providing written material in redacted form,”
Baroness Hamwee
My Lords, Amendment 18, in my name and that of my noble friend Lord Thomas, is the first in quite a large group. We have other amendments in the group, as does the noble Lord, Lord Campbell-Savours, and the noble Baroness, Lady Smith, and they are all about access to information.
Amendment 18 would provide for advisers to the ISC with the right security clearance to be able to have access to information. It was suggested to me by someone who was at one point a member of the ISC and who thought that it would make the process a great deal easier if some of the committee’s own advisers had that clearance and could go into the agencies and do the work that was necessary. That goes to the independence of the ISC.
The other amendments are all about accessing information when it is a necessity. If the committee is to carry out its proper role of scrutiny and to deter poor practice effectively, it should see what it wants, not what is given. Obviously others will have different views about that.
Paragraph 3(1)(b) allows the Secretary of State to determine whether information is not to be disclosed on one of the bases set out in paragraph 3(3), one of which is that the information is sensitive as defined in paragraph 4. I simply ask whether it is constitutionally appropriate for the Government to withhold access to documents which the committee considers necessary to hold the Government to account. A much happier situation would be to provide information but to be confident in the appointees and in restrictions on their using it. However, access to information is the point from which I start. I beg to move.
Lord Thomas of Gresford
My Lords, perhaps I may follow and develop the argument made by my noble friend Lady Hamwee in her final remarks and deal with some of the important features of the Bill.
There is a constitutional principle that the Executive and every agency of government are accountable to Parliament. Parliament is supreme, not the Executive, and it is to Parliament that accountability must be made. If the ISC is to operate effectively and to act as a deterrent against malpractice, it should have the power to examine any document that is held by the security services. As my noble friend said, the ISC members will be nominated by the Prime Minister and approved by Parliament and, presumably, will be security-cleared to the necessary level. If they are to be limited in the documents that they can inspect by reason of the diktat of a Minister, as advised by the security services, there is a breach of constitutional principle. It is not appropriate for there to be legislation to prevent government accountability to Parliament by allowing Ministers to operate in that way.
Under the format of paragraph 3 of Schedule 1, the Director-General of the Security Service and others, if asked by the ISC to disclose any information, can arrange for it to be made available. However, they can also inform the ISC that the information cannot be disclosed because the Secretary of State has decided that it should not be disclosed—the decision of the Secretary of State, presumably, being advised by the security services. Amendment 19 seeks to delete sub-paragraph (1)(b).
If the ISC asks a government department or any part of it to disclose information, the relevant Minister of the Crown—who, under sub-paragraph (5), may be any Minister—must arrange for that information to be made available in accordance with the memorandum of understanding or, as the Bill stands, inform the ISC that the information cannot be disclosed because the Minister of the Crown has decided that it should not be disclosed. Therefore Amendment 20 seeks to delete sub-paragraph (2)(b)
Under sub-paragraph (3), the Minister of the Crown can take the decision not to disclose only if he considers that it is sensitive information and information which, in the interests of national security, should not be disclosed to the ISC. So, again, presumably he is acting on the advice of the security services in coming to the conclusion as to whether it is sensitive information or as to what the interests of national security are.
Sub-paragraph (3)(b) of paragraph 3 states:
“it is 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)”.
So, presumably, on the Minister’s say-so and without advice from the security services, it would be proper for that information not to be released.
The Secretary of State or Minister of the Crown can decide, either on the advice of the security services or on their own initiative, that the ISC is not very important and they can just say, “No, it cannot see this, even if it wants to. It will have to come to its conclusions simply on the documentation that I”—the Minister, acting on the advice of the security services—“think it should see”. Is that what the Bill is about? Is that its purpose? Are we debating the functions, procedures and the setting up of the ISC so that a Minister of the Crown, advised by the security services, can withhold information from it? It is constitutionally inappropriate and I firmly urge these amendments upon the Government.
Lord Campbell-Savours
My Lords, I have great sympathy with the speech of the noble Lord, Lord Thomas of Gresford. It addresses a fundamental flaw in the Bill.
I shall speak to Amendments 22 and 26. Amendment 22 deals with sub-paragraph (3), which states:
“A Minister of the Crown may decide under sub-paragraph (1)(b) … that information should not be disclosed only if the Minister considers that”—
as the noble Lord, Lord Thomas of Gresford, said—
“(b) it is 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”.
If I remember rightly, that is currently the position under the present ISC, notwithstanding the statement in the Bill. I have not always understood exactly what such circumstances are. I have often wondered what would be the circumstances in which Ministers would take that action. Perhaps the Minister will give an explanation today.
The noble Lord, Lord Thomas of Gresford, referred to decisions being taken on a whim. Now that that provision in paragraph 3(3) is be enshrined in the Bill and subsequently become law, we need something more substantial so that we know exactly what is intended by it.
I turn now to the part of the Bill that really worries me—the phrase,
“relevant Minister of the Crown”.
As the noble Lord, Lord Thomas of Gresford, said, we are not given an indication of who is to be involved. Are we talking about Parliamentary Under-Secretaries or Ministers of State? The noble Lord, Lord Henley, is, I understand, a Parliamentary Under-Secretary.
Lord Campbell-Savours
He is a Minister of State. Forgive me. However, the point is that for a long time he was a Parliamentary Under-Secretary and, in my view, if he had been in the House of Commons he would have been in the Cabinet. We are not merely talking about the quality of Ministers that we have here in the House of Lords; we are talking about some of the Ministers that we see at the Dispatch Box in the House of Commons. It would be an error of judgment to include in the Bill a provision which would give some of these Parliamentary Under-Secretaries in the House of Commons the power to block information being brought before the ISC. However, that is what I understand the Bill means to do. It means that any Minister, in any department, in any circumstances, could decide that information was not to be made available to the committee.
Why do I have concerns that go up even as far as Secretaries of State? I referred at Second Reading to a particular incident in the committee when the late Robin Cook—I am sorry that he is not here to answer me today—was, in my view, very obstructive before the Intelligence and Security Committee in that he did not want to have certain information brought before that committee. There was quite a discussion in the committee about the fact that he was resisting having that information made available. I quoted the example of the noble Lord, Lord Heseltine, for whom I have great regard. Imagine the mindset of the noble Lord, Lord Heseltine, in the early 1980s when he had it in for CND and all that, and giving him the responsibility or the power to decide, on his personal consideration, that this information, which the ISC wanted, should be denied to the Select Committee. I believe that it is wrong that Ministers should be in that position. Indeed, as I said at Second Reading, I would trust the heads of the agencies more than I trust Ministers.
For a start, many Ministers lack confidence in this area. As they would have very little experience of how the system works and what goes on inside the agencies, their experience of the agencies may be far less that that of even members of the committee, yet they are to be given the right to decide whether information is to be blocked. It might well be that a junior Minister, lacking confidence, would be unwilling to take a decision to provide information, or allow information to be provided, for career considerations. He or she might worry that by providing that information and taking that risk, because they had not had that experience, they might be damaging their own career prospects. They may well simply be unable to quantify the risk on the basis of their very limited experience and, furthermore, some Ministers might simply make a straight political judgment about whether information should be made available to the committee. That is the very area about which I think considerations should not be made.
I have concerns and I do not believe that Ministers should be involved in this process at all. We go back to my very controversial model, which I put to the House at Second Reading—I put it in the same way that I put the argument for Select Committee status in 1998 and 1999. At that time it was simply ruled out of the question, so I recognise that it will probably be regarded as out of the question today, but I put forward the model that I put forward at Second Reading. First, the ISC should have Select Committee status. Secondly, the chair should be decided by the approval of the Prime Minister, not election by the committee. Thirdly, the chairman should be the critical person in this process.
The chairman of the Intelligence and Security Committee should have unrestricted access to all operational material within the agency on operations that have taken place. The chairman should be in a privileged position in the committee and it should be for him to decide whether information should be made available to the committee. That is why I do not want election of the chair. I want the Prime Minister to pick the chair, because I believe that the Prime Minister will know exactly who is capable of handling the material and deciding on the circumstances in which the membership of the committee is given access to the information. I would have—I have to be very careful how I phrase this—trusted the chairman, the noble Lord, Lord King of Bridgewater, to take that decision on my behalf, as a member of that committee, long before I would have trusted Labour Ministers, who might not have had the experience that he had gained as chairman of the committee.
It is a very serious area and what we are doing now, by going down this route and letting the politicians decide what information gets through, will create problems for the future which we may well regret. In other words, my answer is very simple: keep the Ministers out of it. Let the agencies influence the chairman of the committee. Let them go to the chairman and say, “Chairman, we do not believe that this information should be made available”. If Ministers want to get involved they can go to the chairman and say, “Chairman, we do not believe that this information should be made available”; but give the chairman the final decision. The committee, in those circumstances, would have far more confidence in the arrangement for scrutiny of the services, et al, than is presently the case, or, indeed, will be the case under the provisions in the Bill.
Lord King of Bridgwater
I am getting very flattered by the noble Lord, Lord Campbell-Savours. I think that there is a real problem in this area and I do not quite understand the amendments tabled here. I certainly do not understand this business in the Bill about what would be before a departmental Select Committee,
“on grounds that were not limited to national security”.
That is the point that the noble Lord, Lord Thomas of Gresford, made and I hope that the Minister will clarify that point to an extent.
I think that there is a point, though it may seem a bit extreme, in what the noble Lord, Lord Campbell-Savours, said. It may strike fear through all proper government structures that the suggestion should be left to the chairman of the committee. I think it is true that it is not just the chairman of the committee: initially, it is the heads of the agencies: they are the people who decide whether they wish to withhold information, then they have to make their case to the chairman.
This takes us into quite interesting country, because one of the arguments used in the past is, to whom are the heads of the agencies responsible? The answer is that they are responsible to the Prime Minister. That raises the question: how does a busy Prime Minister with a thousand problems on his plate really take direct ministerial involvement? One interesting study we did looked at the proposal—one or two members of the committee got quite interested in it—that there should be an intermediate Minister appointed who would have overall responsibility for the agencies at Minister of State level, answering to the Prime Minister. We thought that this was quite a good idea until we discovered that that was exactly what had happened in Germany. I do not remember the name of the Minister, but he became an intermediate and became carried away with his role in intelligence matters—he became a sort of super-M. At one stage he was flying to Iran and other places by private jet trying to negotiate the release of certain German hostages and other people. It had gone completely to his head and people suddenly realised that nobody had much control. One or two senior members of Her Majesty’s Civil Service pointed out the dangers of this role to the Prime Minister—one or two of them may be sitting here—saying that there were occasions when a previous Prime Minister thought that the intelligence agencies were out of control and trying to undermine him. Was it a good idea to pass this off to a junior Minister? The Prime Minister had better keep overall responsibility for it.
Having said all that, I think that there is an argument, for Ministers who are not—if it is the Prime Minister—entirely dependent on official advice on this, that a properly constituted, effective chairman will bear a heavy responsibility if he overrides the head of an agency and says that this information should be made public and then finds that it subsequently proves to be extremely damaging to national security. That would be enormously damaging not just to him or her personally, but, obviously, to the whole role of the ISC. On those grounds, it would not be an irresponsible chairman in this role; it would be somebody who, because of the involvement he has had already, over a period, with the heads of the agencies, could probably be expected to take a more informed and responsible response to representations made by the heads of the agencies.
Lord Rosser
My Lords, I shall be brief, as much of the subject matter has been covered already. I wish to speak to Amendments 21 and 23. The purpose of those two amendments is to ensure that the power to veto disclosure of departmental information can be exercised only by the Secretary of State and not by a Minister of the Crown. Paragraph 3(1)(b) of Schedule 1 requires that only the Secretary of State can decide that information required by the Intelligence and Security Committee can be withheld by the agencies. Moving down to paragraph 3(2)(b), in relation to other government departments, it appears that the Minister of the Crown can make that decision, which would appear to indicate, subject to the Minister’s response, that such a key decision can or would be made at a more junior level than Secretary of State in relation to disclosure of information in respect of a government department. If that is the case, no indication is given about a reason for that decision. Bearing in mind that withholding required information could thwart the Intelligence and Security Committee in its work to meet its statutory remit of strength and oversight of the intelligence and security activities of the Government, such a decision should be taken only at the highest ministerial and accountable level within the department concerned, namely, the Secretary of State. These amendments provide for that.
Lord Lester of Herne Hill
My Lords, perhaps I could briefly explain the problem that arises with the Joint Committee on Human Rights. It is very important that parliamentary committees are well informed. From time to time, under the previous Government and under the present one, the committee has considered inviting someone from the intelligence and security service to provide it with a proper context when it is considering something such as detention without trial for a long period or, for example, the Justice and Security Bill. Under the previous Government, when we tried, we were told that it would not be possible and, therefore, we were not given the benefit of that material. Therefore, we have not tried in relation to the Justice and Security Bill because we are certain that we would find the same refusal.
It seems to me that it ought to be possible for the intelligence and security service to assist a parliamentary committee, on whatever terms are needed, to protect its own position, whether giving evidence in private or in some other way because it is a real handicap. It means that when we produce reports, for example, on this Bill, we are deprived of information that would be very helpful. It makes us look as though we are looking at problems through one eye instead of both. I do not think that we should be put in blinkers. I mention this because it seems to be something that extends to committees other than the one that we are now considering.
Lord Campbell-Savours
Could I ask the noble Lord to attend the debate on one of my later amendments, which deals precisely with that matter?
Lord Henley
My Lords, I believe that the noble Lord, Lord Lester, is waiting for some later amendments beyond Part 1, so I am sure that he will be here for the amendments in the name of the noble Lord, Lord Campbell-Savours. I can advise the noble Lord, Lord Lester, that Amendment 37 is the one that he should stay for.
We have eight amendments in this group, which all deal with the power of Ministers to withhold information from the ISC. It might be helpful if I start by going back to where we are now. Currently, the agency heads can make a decision not to disclose information to the ISC on the basis that it is sensitive information which they consider it would be unsafe to disclose to the ISC. Information which agency heads consider should be withheld on this basis must, none the less, be disclosed if the Secretary of State considers disclosure to be desirable in the public interest. It is a matter for the agency heads, but the Secretary of State can order the disclosure if she thinks it is in the public interest.
The Justice and Security Bill removes the ability not to disclose from the agency heads; this will now rest solely with the appropriate Secretary of State according to specific conditions. Where the information in question is held by a government department, as opposed to the agencies, a Minister of the Crown—rather than a Secretary of State—will be able to withhold information on the same specific grounds applied to agency material. In other words, the Bill makes the decision on withholding information from the ISC one exclusively for democratically accountable representatives.
In passing, I shall deal with the question about Ministers of the Crown, rather than Secretaries of State, being referred to in paragraph 3. This is purely to deal with the question of the Cabinet Office, which noble Lords will be aware does not have a Secretary of State. Therefore, it would be down to one of two Ministers in the Cabinet Office to make that decision. If noble Lords look at paragraph 3(5), they will see that the,
“‘relevant Minister of the Crown’”,
will, in due course, be,
“identified, for the purposes of requests of that description, in a memorandum of understanding under section 2”.
We discussed the memorandum of understanding at Second Reading and noble Lords will be aware that we hope that that, or a draft of it, will be available at a later stage.
I now turn to Amendment 18. It is appropriate to go through the amendments in slightly more detail. This will have the effect that if any of the three heads of the intelligence and security agencies are asked by the ISC to disclose any information then, as to the whole or any part of the information, that person may arrange for it to be made available to a security-cleared adviser to the ISC who may then provide advice to the ISC on the information, including written material in redacted form. It is worth stressing the importance of the provisions in the Bill governing when information may be withheld from the ISC. These powers will be used sparingly only in very exceptional circumstances. It is important that we retain those safeguards. The ISC routinely sees very sensitive information, including that at the highest levels of classification. It would not be able to fulfil its oversight role if it did not. It is not clear from the amendment to whom the noble Baroness intends the term “advisers to the ISC” to apply. Does she have in mind the current staffing of the ISC or perhaps a completely new role? The type of material that a Secretary of State may decide cannot be shared with the ISC—a good example would be the names of agents—is likely to be of such a sensitive nature that, if the Secretary of State has made a judgment that it cannot be shared with the ISC, then it would not be possible to share it with “advisers to the ISC” either.
We should also think about the practical difficulties posed by an amendment of this nature. That is Amendment 18. The amendment is likely to lead to circumstances where an adviser to the ISC has access to information which he or she cannot share with the ISC. This could place the adviser concerned in an impossible position of conflict of interest. When next called on to advise the ISC, that person may know information relevant to the advice that he or she is being asked to give, which, because they cannot share it with the ISC, they have to try to put out of their mind. If harm to national security can be avoided by providing information requested in a redacted form, then the existing provisions of the Bill oblige the agencies to provide it in that form; that is the effect of including the words,
“or any part of the information”,
in paragraph 3(1) of Schedule 1. I hope that describing the way in which the ISC and its secretariat presently operate assists the Committee and explains why the Government resist Amendment 18. In short, the amendment seems to contemplate an intermediate level between disclosure to the ISC and non-disclosure, which I hope I have shown, in practice, does not usefully exist.
The effect of Amendments 19 and 20 would be that the Government would never be able to withhold information from the ISC, whether it is held by the agencies or a government department. As I have already said, the powers to withhold information in the Intelligence Services Act 1994 have been used very rarely in the past, and we would expect the equivalent powers in the Bill also to be used sparingly, and only in exceptional circumstances. However it is important that those safeguards are retained. In particular, although the ISC will clearly be a body that sees a great deal of very sensitive material, there will be circumstances in which it is not appropriate for even the ISC to see that information on the grounds of national security. For example, there may sometimes be information that is so sensitive that national security demands that it be shared only with a small number of people within the agencies, let alone with the ISC. This is why the sensitive information ground for withholding information is expressed in the Bill in the way it is. It is not enough that the information is sensitive; it must be in the interests of national security for that sensitive information not to be disclosed to the ISC.
Baroness Hamwee
My Lords, the Minister, who has been the subject of the many compliments flowing from the noble Lord, Lord Campbell-Savours, today, has given us quite a lot of material to think about. He has certainly given me some ideas about better drafting for my Amendment 18. Given the number of noble Lords who are here not to discuss this issue, I will do no more than end with a question. I am not sure that I expect the Minister to respond to it immediately. Under this paragraph, would a decision by the relevant Minister of the Crown—leaving aside the rank or position of that Minister—be judicially reviewable? Clearly it would have to be shown to be unreasonable and how one does that I do not know. Is this an administrative decision that would fall within the ambit of judicial review? The Minister is going to dare to respond.
Lord Henley
My Lords, I am not going to dare to respond. I am saying that there are a lot of very noble and learned Lords in this House and a lot of Members who are not necessarily noble and learned but know a great deal of law. I do not know the answer to that. I had better write to the noble Baroness. I am sure she will have a response before Report.
Baroness Hamwee
My Lords, I am not a noble and learned Member either, which is perhaps why I can dare to ask the stupid questions. I beg leave to withdraw Amendment 18.
Baroness Stowell of Beeston
My Lords, before I resume the House, I will cover a bit of housekeeping relating to the next debate in the name of the noble Earl, Lord Clancarty. I remind noble Lords that, with the exception of the noble Earl and the noble Viscount, Lord Younger of Leckie, all speeches are limited to three minutes because this is a time-limited debate. I remind all noble Lords participating this evening that when the Clock hits three minutes, I am afraid that is a signal that time is up. Those who have a television background should maybe think of their Whip tonight as a floor manager—they will stand between you and the camera if they need to.
Arts and Culture
The Earl of Clancarty
To ask Her Majesty’s Government whether they have a long-term strategy for the arts and cultural sector; and, if so, what that strategy is.
The Earl of Clancarty
My Lords, the first thing I would like to do is warmly congratulate the noble Viscount, Lord Younger of Leckie, on his new job and wish him all the very best on the Front Benches. I know that this will be a particular treat for him as he takes an interest in both the arts and sport.
The Cultural Olympiad—as the Arts Council points out, the product of sustained investment over the last 20 years—is currently a great opportunity to celebrate in the UK artists and the arts from across the world. But there is considerable concern that, with no end to the cuts in sight, the long-term future for the cultural sector looks increasingly uncertain.
It may be self-evident that the arts are produced by artists, yet there remains the requirement, in the long term, for a more artist-enabling policy including individual artists and companies, such as theatre companies, even if this is not the whole story of the arts and the cultural sector. A distinction does now need to be drawn between artists and the creative industries as defined by last year’s Demos report Risky Business, to which Ed Vaizey wrote an approving introduction, and which I referred to last November in the creative industries debate but is worth reiterating in an arts debate:
“We define the creative industries as businesses that ultimately seek to make a profit through the sale of something that is based on an original creative idea, and the surrounding businesses that enable this”.
The point here is that this is a significantly narrower definition of creative industries than the one which the previous Administration used and which was more encompassing of all artistic production. The arts by motivation are not primarily or ultimately a business, although at times they may have much to do with business; they are not an add-on but an integral part of the way in which society criticises and communicates with itself and other cultures.
Some say the arts need “to get real” in difficult times. But it will be unrealistic in the long run to shoehorn all the arts and creative industries alike into a business model that will not only be ultimately ineffective but inappropriate for much of the arts and the cultural sector.
The assessment of risk and more objective evaluation exercises are some of the strategies which have already been introduced into the arts, but—as the actress Julie Walters recently pointed out, as others have before her—failure and experimentation are part of the very nature of artistic practice, and we tamper with those aspects at our peril. I know from my own experience of local arts centres and services outside London that the network of services for the visual arts, music and theatre is not only already being thinned out but what remains is, out of necessity, becoming more commercialised, with, little by little, less room for innovation.
The great irony is that while the funding of individual artists, companies and organisations inevitably carries risk, the large-scale financial support of the arts sector as a whole is not only risk-free but of massive benefit to society, artistically and economically, and could make a significant contribution to kick-starting growth. However, I believe that this can only properly—that is, most efficiently—be achieved through public funding, because you need to support the grass roots as well as the mainstream, because philanthropy will only ever target the most prestigious organisations, and has a metropolitan bias.
For two years, the arts establishment has been patient and felt that it should wait its turn in the queue. But this is a false situation. The same government policy of ideologically driven public funding cuts is cutting back on state allowances, benefits, libraries, museums and symphony orchestras alike. The most devastating news last week was the prediction by the Local Government Association that a shortfall of £16.5 billion would mean an almost complete eradication of funding at the local level of arts and cultural services, including libraries, by 2020 unless there is a radical change in policy.
I will now turn to some specific issues. I have made the argument that the arts are distinct from the creative industries as now defined in that a financial goal is not the prime objective for the majority of artists and artists’ companies. At the same time central government needs to protect and encourage proper payment for artists in all disciplines, and on all occasions, as for any working person. This is part of the provision of a space in which the artist can operate and work.
There are numerous long-term concerns facing artists with regard to income, royalties and copyright, although a distinction in kind needs to be made between the protection of artists’ work and the obsessive protection of copyrighted logos such as the Olympic rings and London 2012, which has proved to be the most distasteful form of corporate bullying. For authors, among other issues, there is the concern about the public lending right, which ought to extend in practice to audio books and e-books, as provided for in the Digital Economy Act 2010.
There is also the question of proper royalties for visual artists. The upper threshold on which royalties administered by the Design and Artists Copyright Society are based is €11,500 for an artwork, irrespective of the sale price above that, a price set specifically to help the art trade. But there is a concern over a desire in some quarters to raise the current lower sale threshold from €1,000 to €3,000, which would affect many artists whose income is not high. I hope that the Minister can say that the Government will resist this and affirm their support for artists.
In the wider cultural sphere, on libraries, Ed Vaizey has queried the figure of 600 libraries under threat that I gave during Oral Questions last month, saying that this is simply a figure bandied around by the media. The Chartered Institute of Library and Information Professionals produced that figure. If I am at fault, it is in not realising quite how many libraries have already closed recently. Some of the 600 will be among the 122 that have closed in the single financial year 2011-12, according to the Public Libraries News website, which lists every single one of them. This independent website run by librarian Ian Anstice is certainly a much better source of information than the DCMS, which is not keeping a close enough eye on the situation, even though it is the Secretary of State who, under the Public Libraries and Museums Act 1964, has the power to intervene. A library professional tells me that the figure of 600 threatened if the present cuts continue will soon be, in his words, “a gross underestimation”. For Ed Vaizey to say, as he did in his speech on 28 June at the Future of Library Services conference, that the libraries are “thriving” when many now have staff shortages and greatly reduced opening hours, suggests to me a Government in denial about the huge problems that libraries face.
On free admission to the national museums, I am very glad that last week the Evening Standard reversed its position. It now supports free admission and I hope that the Government will continue to maintain a policy that is so successful and popular with the public.
I understand that the noble Baroness, Lady Bonham-Carter, will devote her speech to the hugely important area of arts education, which at school level should properly include both old and new technologies. I will just say that the EBacc still does not contain an art and design element.
The Cultural Olympiad is a festival of cultural exchange, so important for the long-term development of British art, and a real opportunity for sharing ideas between artists of different countries and cultures. It is good that the UKBA has been working closely with the Cultural Olympiad in facilitating the admission of the many visiting artists. I thank the Government and the UKBA for introducing the permitted paid engagements scheme outside the points-based system, which started in April and goes some way to answering some of the concerns around visiting artists. However, it is not perfect and significant improvements should be made. The one-month maximum time for a visit is too short. That artists should be full-time is simply not realistic; visual artists, poets and concert pianists, for example, have jobs in related or other areas that inform their work as artists and one paid engagement per visit is too limiting. It is also important that the details of the scheme are made more widely known both externally and internally, especially to front-line staff.
It is normally the Home Office that answers questions on this issue, but I wanted to raise what is primarily an arts matter in an arts debate. The DCMS should be taking a lead on these issues, and indeed the current Artists International Development Fund, jointly administered by the Arts Council and the British Council, may be very helpful to British artists’ career development.
Arts administrators are full of ideas about negotiating these difficult times, although public funding that addresses core functions and the day-to-day running of services is what is most urgently required. There is no more unhelpful cliché than that “the arts are resilient, they will survive”. The kind of government we have has a significant effect on the nature of our arts culture. A Government can be either a friend or a foe to the arts. The current reality is that government policy is causing companies to fold and hampering particularly young and emerging artists from carrying out their work effectively. I also believe that we in Parliament and certainly those in government are directing too much attention towards a more powerful centre and big business, when artists and those working in the arts and the cultural sector elsewhere are being neglected. In the long term this must change for the good of a thriving arts culture throughout the UK.
Baroness McIntosh of Hudnall
My Lords, I thank the noble Earl, Lord Clancarty, for raising this debate and for his remarkably concise gallop through all the issues that I hope this debate will eventually cover. It is particularly timely because we are in the middle of what must be the biggest cultural festival this country has ever seen. For that, we are of course greatly indebted to the noble Lord, Lord Hall, and his colleague Ruth Mackenzie—although if I were in the Minister’s position at this moment, I would be doing my best to claim every bit of credit I could lay my hands on.
I have a couple of points for the Minister to consider, if he would. First, as has already been raised by the noble Earl, what has nourished the energy and creativity that we see now is steady, sustained investment, not just of funds but of political support and recognition. Today, even in sadly depleted economic circumstances, the arts and culture are among our greatest strengths, not least in their contribution to GDP. We should celebrate that strength, and the people who create and support it.
The second lesson is that our success comes not only because we are exceptionally rich in talented artists, which we are, but because those artists are supported by, and in many cases are leading, highly entrepreneurial businesses within which public funds, though absolutely crucial—and I stress that—are by no means the only or even the main source of income. I am sorry if that offends the noble Earl, but I think it is important. The tired old tropes about how the arts need to be more businesslike, which we still hear all too often, are way out of date. These are modern, sophisticated businesses managing substantial risk with great skill and led by people of imagination, commitment, financial acumen and integrity—and I am afraid that I have to mention the noble Lord, Lord Hall, again because he is one of them. Can we say as much for some other, allegedly more businesslike sectors? I think not.
What can government do? I hope that the Minister has listened carefully to what the noble Earl, Lord Clancarty, has just told us. The Government should keep up the investment, because the return is excellent; trust the practitioners; encourage local authorities; maintain a strong Arts Council led by people who know what they are talking about and let them get on with nurturing this highly successful sector from the ground up; and above all, have the courage to speak up unambiguously for the arts, whatever the public mood. Sometimes public taste has to be led, not followed. I hope that the Minister agrees and that he will be sharing with the House at the end of this debate a strategy for the arts and culture that gets behind success and gives it a hearty shove. I can promise him that the political dividend will be worth working for.
Baroness Bonham-Carter of Yarnbury
My Lords, speed-talking. Congratulations on the debate. Declare an interest: Lowry . I will concentrate on skills.
We on the Liberal Democrat Benches have campaigned long and hard on behalf of the creative industries, so I was particularly pleased about the introduction of tax cuts for video games, animation and high-level television production sectors, but obviously those need people who are skilled. The Next Gen. report drew attention to the fact that the way that ICT is being taught in schools is too narrow. So Michael Gove’s announcement in January that the current programme of study for ICT will be withdrawn in September, and that e-skills UK is creating a brand new GCSE which has computer science at its core, is excellent news. IT is a very male world—only 17% of the workforce is female—so the fact that e-skills UK has recently relaunched Computer Clubs for Girls is a very good thing too.
However central the understanding of technology has become to the creative industries, these industries are still underpinned by creativity itself, and Darren Henley's review of cultural education is another crucial element in tackling the skills deficit. It debunks the pernicious idea that children are wasting their time by studying cultural subjects. I am glad to say that the Henley review has been greeted with enthusiasm by the Secretary of State for Education. In response, the coalition Government have committed to immediately addressing 10 of its recommendations, including setting up a cross-departmental board, a new national youth dance company, national art and design Saturday clubs and working with teaching schools to improve the quality of teacher training in this area—which is very important. What is very disappointing, however, is that the inclusion of culture as a mandatory, sixth strand of the English baccalaureate and design as a STEM subject is not on this list.
I chaired a Westminster Education Forum recently and spoke to a headmaster who said, “I have head teachers who are cutting subjects from their key stage 4 curriculum in order to feed into the EBacc. So now the school is saying that geography is in the EBacc, drama is not. We really recommend that you do geography”.
As a result of another report by Darren Henley, we have the excellent national plan for music education, and I would encourage the Secretary of State to achieve the same in cultural education by embracing the whole report.
Before the noble Baroness interrupts me, I would like to say that I think it is appalling that I have only three minutes to talk on culture when we spend so much time on House of Lords reform.
Lord Hall of Birkenhead
My Lords, I add my congratulations to the noble Earl on securing this debate three weeks into the London 2012 Festival, which is the best chance we have ever had to showcase the world-class nature of arts and culture in this country. I declare an interest as chair of the Cultural Olympiad board and chief executive of the Royal Opera House.
I would like to reflect a little on some of the things that we have learnt so far in respect of the festival. I remind noble Lords that there are 12,000 events featuring more than 25,000 leading artists from all 204 competing Olympic nations—no other country could do that. We wanted to attract the audiences. Some 80% of the audiences at Shakespeare’s Globe for “Globe to Globe” performances were new attendees, and 44% of people who booked for the RSC’s World Shakespeare Festival performances at Stratford-upon-Avon were also new attendees.
We also wanted to enable as many people as possible to experience the festival for free, so we created 10 million free opportunities to take part—3 million of these have already been taken up. We should not underestimate the power of free; some 10,000 people attended the opening concert in Derry/Londonderry, and tens of thousands attended the BBC’s Hackney Weekend. We should reflect on this as we plan for the future: free can work.
In its first three weeks, the festival has inspired the “Today” programme’s “Thought for the Day” twice. I had not thought of that as being a target, but there we are. It is a good indicator, I guess, because both occasions showed off the values and importance of the festival and the Cultural Olympiad. The first “Thought for the Day” was inspired by the first ever visit of the conductor Gustavo Dudamel and his Simon Bolivar Orchestra to the social housing estate of Raploch, near Stirling, where children have been learning orchestral instruments under Sistema Scotland—the same system that produced Dudamel and his extraordinary orchestra. On a really wet night, but a brilliant night, it showed the power of sustained investment in musical education to reach places that other things simply do not reach. That is an essential part of any strategy for the arts going forward, and I very much hope that the Henley review will be committed to it with real resource for many years to come.
The second “Thought for the Day” was inspired by the concert of homeless people at the Royal Opera House, organised by Streetwise Opera. This is the first time that it has ever happened in an Olympic or Paralympic official festival and we were glad to have them there. It was as profoundly moving as the concert in Raploch. Again it sent out a strong message to the world about the values of this country and the importance of the arts to regenerate and inspire communities and individuals, and again it demonstrated the power of creativity to give confidence and to raise self-esteem. Both events illustrate the importance of the London 2012 Festival’s power to generate interest right around the world, as well as in the UK, and to show the world the value we place not just on the importance of art but on the importance of free artistic expression.
Today, for me, the big question is how we ensure that this is not just a once-in-a-lifetime event but that it is sustained in the future so that even more people are given similar opportunities.
Lord Lloyd-Webber
I thank the noble Earl, Lord Clancarty, for introducing this debate, and obviously I must declare my interests. I have spent every day of my working life in the creative sector and have been lucky enough to witness extraordinary home-grown talent across the board, from musicians and designers to actors, logistics specialists and even video providers. Every day I see how the ripples of a successful creative industry are wide-reaching and affect all aspects of our lives. We underestimate this at our peril.
There is a simple truth that should lie at the heart of this debate: Britain still leads the world in the creative industries. However, this leading role is dependent on a complicated and fragile amalgamation of heritage, culture and investment, particularly in education and opportunity—not to mention raw talent and government support for that raw talent. If austerity Britain ignores that fact, we will surely ignore the fact that Britain is a talent hub that creates production and content that resonate around the globe. I cannot help but feel that in this cult of austerity Britain, the Government are turning their back on one of their most promising and extraordinary world-leading sectors. It is a sector that is under fire. Arts funding is under unimaginable strain, creative agencies have been cut, a recent example being the Film Council, and—an obsessional interest of mine—some university music departments are having to close, such as that at the University of East Anglia.
I want to be clear, and if I appear a little nervous, it is because I want to say that our vast creative potential is being strangled without any clear funding strategy for its long-term future. In 1972, when I had seven productions touring the world, I remember being asked by Sir Keith Joseph, then the Minister of Housing and Local Government, whether any British theatre was exportable. I fear that some of that same lack of acknowledgement and awareness still exist today. We have to challenge the mindset of the Government.
Without the private funding and the support of many private individuals and institutions up and down the country, the situation that I describe would be so much worse; in many ways it might be irretrievable. However, it is no good for the Government to think that they can rely on benefactors for ever. So I ask the Government urgently to consider a clear formula for a public-private partnership that ensures that there is a more mutual and solidly funded foundation for the—I hate to use the word “industry”—arts.
If I were the Chancellor of the Exchequer and invited as a guest into the “Dragons’ Den”—obviously I have not been; and if I were him, I would not want to be—and someone brought to me a proposal to invest in nurturing British creative talent across the board, I would invest in it here, now and immediately. It is time that the Government did.
Baroness Benjamin
My Lords, I, too, thank the noble Earl for securing this important debate. I begin with a statistic: 15% of the population, 1% of the funding. Whether you find this as shocking as I do will depend on your attitude to the population group that it refers to, so let me tell you that the 15% refers to children up to the age of 12 and that 1% is their share of public funding for the arts. Perhaps now you find it shocking. This inequality was revealed at a conference held last month by the national charity, Action for Children’s Arts, of which I declare an interest as a patron.
The conference was called “Putting Children First”, and the finding was based on freedom of information requests made by the charity to the national arts funding bodies—the four UK arts councils and the BFI as well as 20 of the UK’s national arts organisations—asking what proportion of their budgets was spent on provision where children were the intended audience. It is our responsibility to make sure that there is enough cultural life to go around and that more than 1% of it is left for children when we have all had our share.
Ethel Merman said: “We spend the first three years of a child’s life teaching them to walk and talk, then spend the next 10 years telling them to sit down and shut up”. We should never forget how important the arts are in forming children’s minds and giving them insight into the world they live in. We adults give them artistic and cultural messages telling them, “This is what life is about”. They soak up that information. It stays with them for ever and in turn will encourage them to become creators themselves. We must get those messages right by giving them the highest-quality cultural stimulation so that they can use their imagination to be creative, which will allow them to live fulfilling lives free from the shackles of mediocrity and will redeem those who have taken the dangerous path to gang crime, drug culture and anti-social behaviour.
The Government’s long-term strategy for the arts and cultural sector must give children a higher priority. There must be incentives through the funding system of our great cultural organisations for them all to take their share of responsibility for our children’s right to culture and the arts. Children are not just the audiences of tomorrow; they are also the audiences of today in their own right and they deserve much more than 1% of the arts budget funding to give them the necessary food for their soul. Can my noble friend assure the House that the Government will encourage arts funding organisations to increase the percentage of funding they give to children’s arts and start putting children first?
Lord Aberdare
My Lords, I have had to cut the congratulations to my noble friend and the welcome to the Minister. I will focus on private support for the arts and on classical music, including music education.
Corporate support for the arts fell to its lowest level for seven years in 2010-11, which was mistakenly designated the “year of corporate giving” to the arts. I am not surprised. I was responsible for IBM’s UK arts sponsorship in the late 1980s when it was already being overtaken by newer forms of advertising and brand promotion. Future corporate support for the arts is likely to be driven either by corporate responsibility goals, when investment in the arts is seen as achieving social or community aims, or by direct business relevance, when the arts help businesses to do better by increasing their creativity or flexibility.
The prospects for individual support are better. The Government were right to recognise, eventually, that donors need to be properly recognised and certainly not treated like potential tax-dodgers. Individual fundraising needs to be spread much more widely outside London, which received 81% of all individual arts giving in the year to March 2011. Arts strategies should include the promotion of good practice in fundraising through, for example, peer-to-peer advice and support among smaller arts organisations.
Other government priorities include broadening audiences and embracing new technologies. The national plan for music education is a welcome approach to the first of these, and I hope that all schools will be encouraged to engage with it. Efforts to promote the use of digital technology in the arts are fine, so long as technology is recognised primarily as an enabler—it has been described to me as the greatest discovery since the invention of the bucket for encouraging donations. I was delighted to learn that “The Space”, a new free “digital pop-up arts channel”—whatever that means—developed by the Arts Council and the BBC, has provided a live streaming of Berlioz’s opera “The Trojans” from Covent Garden, and I declare an interest as a trustee of the Berlioz Society.
Access is important, of course, but aspiration and accomplishment in the arts are even more so. In the current straitened times, the arts should take, and have taken, their share of necessary funding cuts, but care is needed not to kill the goose that lays the golden eggs. The strength of the music scene in the UK owes much to the number of talented musicians who come to study, teach and perform at our world-class conservatoires: the Royal Academy of Music, the Royal College of Music and the Guildhall School of Music and Drama each have over 50 nationalities among their students. Training top-rank musicians, like training scientists or doctors, is expensive, but it helps to create a valuable revenue-earning asset for the UK. A new study by the LSE on behalf of these three conservatoires shows that even during the recession the creative industries continue to act as engines of economic growth and innovation for the UK. The sector is estimated to have generated some £25 billion in 2010, and the presence of institutions such as the conservatoires helps to fuel this through what the LSE calls “agglomeration”.
How do the Government seek to encourage more private support for the arts in the regions outside London? What will they do to encourage all schools to engage with their local music hubs? Will music education be formally included in the key stage 3 and 4 curriculum and in the EBacc? Can the Minister give a reassurance that the UK’s leading conservatoires will continue to receive the funding they need to develop world-class musicians and to attract top musical talent to the UK?
Baroness Hooper
My Lords, as vice-chairman of the All-Party Group for Dance and a former governor of the Royal Ballet and the Royal Academy of Dance, I intend to dwell on dance this evening. The prestige and super standards of the Royal Ballet and English National Ballet attract not only international audiences but international performers from around the world, but there are many other dance companies, in London and in the regions: the Rambert Dance Company, the Birmingham Royal Ballet, the Northern Ballet and the Scottish Ballet, to name but a few. They are equally international and do an enormous amount to bring ballet to the people with their touring companies and outreach programmes. Large numbers of young people who would not have dreamt of it before are now considering ballet as a career—mind you, “Billy Elliot” probably had quite a lot to do with that. All these companies also demonstrate the work of some dynamic young choreographers, who are, after all, our future.
Dance comes into my definition of soft diplomacy and improves multicultural understanding and good will. Only last week, there were two events in Westminster Hall—the Commonwealth Carnival of Music and an Indian dance group performance on Thursday—emphasising the cultural diversity of our country and, indeed, of our Parliament. I feel sure that in your Lordships’ House I do not need to enlarge further on the contribution made by classical ballet in particular and by dance in general to the artistic life of this country. The object of this short debate is to ask what the Government’s long-term strategy is. It is vital. My objective is to plead that dance be recognised as a full and important part of that strategy.
Adequate funding is, of course, important, but there are also other ways of supporting and encouraging this part of the performing arts. Joined-up government is of equal importance to ensure, for example, that dance teachers are not forgotten when teacher training and the school syllabus are under discussion, so both education departments need to be involved. Tax incentives have been mentioned, and that brings the Treasury in. The visa regime also impinges on performing artists and on students coming to train and study in this country, and paying their way to do so, so the Home Office needs to be involved. Health can also be relevant, and I welcome the new National Institute of Dance Medicine and Science, which now operates from within the National Health Service and specialises in dance injuries. The Foreign Office, too, underlines the contribution of soft diplomacy and brings in the British Council, and so it goes on.
It is not just that the Department for Culture, Media and Sport has to take the lead; it also has to act as co-ordinator. I look forward to hearing from my noble friend the Minister and I thank the noble Earl, Lord Clancarty, for giving us this opportunity.
Baroness Scott of Needham Market
I wish to speak about a sector in which the UK leads the world—the television industry, particularly our thriving independent production sector. Figures published last week show that the indie sector now generates revenue of around £2.4 billion. This continued growth is due in great part to the Communications Act 2003, which corrected market failures in commissioning and allowed producers to keep their own intellectual property.
The recession has had an impact—figures produced for the trade association PACT show that primary UK commissions are down and that profit margins have fallen. The only indies showing a growth in profitability are the mid-sized ones, and it is a reminder of the contribution to the SME sector—Channel 4 alone works with more than 420 suppliers.
The big success story is in the independent sector export market, which increased more than 15% last year. The UK is a major exporter of programmes. “Downton Abbey”, for example, has been resold across the globe, while in many countries, inexplicably, Jeremy Clarkson is worshipped as a god. The creativity of the independent sector has made the UK the world leader in formats, so programmes such as “Come Dine with Me”, “Who do You think You Are” and “Strictly Come Dancing” have been turned into local programmes across the globe. Channel 4, commissioning only from the independent sector, has supported films that have won 14 Oscars in the past six years—and who else would televise the Turner Prize?
Markets are well established in Europe and the English-speaking world, but there is huge potential for growth in the emerging markets. In Latin America last year, export sales rose by 16%. PACT is clear that there is much more scope for growth, so can I ask the Minister to use his best endeavours to speed up the co-production treaty with Brazil? The next communications Bill must maintain the strengths of the sector by protecting the copyright regime and focusing the terms of trade on maintaining growth and competition.
A contributor to the vibrancy of the sector has been the independent production quota and the out-of-London quotas, and these must be maintained. You have only to look at the new creative hubs in south Wales and Salford to see the impact that this can have. In Scotland, around 3,000 people are employed in the sector. What is the Government’s view of granting STV Productions independent producer status, which would allow it to grow further and attain critical mass?
As my noble friend Lady Bonham-Carter said, tax incentives for specific genres have a proven impact and need to be kept and, where effective, extended.
We can be rightly proud of the variety and quality of UK television and its contribution to our cultural life. Our responsibility in Parliament and in government is to work with the industry to maintain it.
Lord Smith of Finsbury
My Lords, I remind the House of my interests as chairman of trustees at the Donmar Warehouse theatre and at the Wordsworth Trust.
A starting point should also be an acknowledgement that the Government have taken some welcome steps in arts policy. They have, I am delighted to say, maintained the policy of free admission to our national museums and galleries. They have sustained the film tax relief, which has been such an important element in sustaining an independent film industry here in the UK. They have revived the Renaissance in the Regions programme for regional museums, and they have given in recent weeks some very welcome boosts to private philanthropy in relation to the arts.
We should also acknowledge that in hard financial times Arts Council England has shown some very considerable skill, under the leadership of Liz Forgan and Alan Davey, in helping the arts sector to weather the economic storms that are now around it. However, those storms are real and there are now severe financial difficulties ahead for the entire arts sector—not just difficulties in government funding but in the catastrophic falls in local authority funding in many parts of the country, coupled with a private and corporate giving sector that is under some considerable strain.
In addition to those financial difficulties, I do not believe there is yet enough clarity from the Government in the long-term strategy for the arts. What ought the key elements of such a strategy to be? It should be based, I believe, on four fundamental pillars: first, excellence—supporting the best possible work, which means including risk and innovation; secondly, access—ensuring that the widest number of people have access to the best possible work; thirdly, education—building on the real success of the Creative Partnerships programme to give pupils in schools up and down the country a real start in being creative and understanding creativity; and, fourthly, supporting the creative economy, which is linked fundamentally with the more traditional arts sector.
We have, over the past 10 or 14 years or so, been living through something of a golden age in the arts in this country. I like to think that the Government, in whom I had a part, played a small part in supporting that golden age. I plead with the Government to dedicate themselves to sustaining it.
Baroness Young of Hornsey
My Lords, I thank my noble friend Lord Clancarty for securing this debate, particularly since many of the arts and creative practitioners with whom I work are hard put to identify what the coalition wants from the sector, what its expectations are and how it is going to support its growth and develop its resilience. There have been some helpful initiatives, but it is not clear how they constitute the Government’s wider landscape of ambition for the arts and creative sectors.
We are fond of boasting of our creative achievements and success on the global stage. Indeed, the Cultural Olympiad, the cultural festival, is an exemplar of that ambition and that reach, taking it all to a much higher level than previously. Our achievements on the world stage are rightly lauded. We also, through our creative industries and the arts, contribute to the economy and to the social fabric of the country. However, these are somehow consistently undervalued when it comes to funding and public words of support. How else can we explain the lack of attention given to developing a sustainable, appropriately financed strategy that will ensure that the sector continues to thrive?
Our creative successes in film, theatre and so on have come about through a combination of sheer hard work and the creative talent in the sector, and public funds allocated to support those efforts. For the arts ecology to thrive, there is a need for creative diversity, scale, capacity, risk-taking and innovation, which has been described as something collective, but also something uncertain,
“with high failure rates but also high returns, with the state often undertaking the greatest degree of risk and uncertainty. And third, it is cumulative innovation today that builds on innovation yesterday”.
Working with practitioners in the north of England has made me much more aware of how London-centric policy-making in the arts is. Philanthropy is a case in point; for many smaller and regional arts organisations, the debate about tax relief and donations had rather less urgency about it than it did for the London-based national arts organisations. We need a different model to encourage and build on private patronage, and donations, when different relationships exist between benefactor and organisations.
It is vital that the Government look at ways of supporting growth in the sector, particularly in regions where there is strong potential for developing a distinctive cultural offer that taps into areas with a strong sense of regional identity and the creative talent that can articulate such a vision. If we lose the capacity and appetite to invest in risk-taking, we will not hold our place as the home of some of the most creative practitioners in the world for long.
Lord Cormack
My Lords, I am delighted to add my thanks to the noble Earl, Lord Clancarty, for introducing this debate, and to add my welcome to my noble friend Lord Younger, as he assumes his ministerial responsibility.
It has been a wide-ranging, although brief, debate at a gallop. I would just say to my noble friend who will respond that we desperately need a coherent strategy for the arts, heritage and cultural affairs in this country. The noble Lord, Lord Smith of Finsbury, was right in giving his list of criteria, and I commend them to my noble friend, but I want to make two points.
In 1974, I helped the late Andrew Faulds to found the All-Party Parliamentary Arts and Heritage Group, which has become over the subsequent 38 years the largest group of its kind in Parliament—and I like to think that we have achieved something. We have lobbied Ministers constantly to try to give two things that those involved in the arts need above all others. First, there is the recognition that a little goes a long way in this field; we are not talking vast sums in the context of the national Budget. The other thing is that arts and heritage organisations need a degree of continuity and to be able to plan with some certainty for the future.
A couple of weeks ago we had an excellent debate, which I was privileged to introduce, on the future of English cathedrals. In that debate I called for an endowment fund for English cathedrals, and I commend that suggestion to my noble friend. In all fields of the built visual arts, that sort of endowment fund would produce returns far in excess of the investment. Tourists and visitors to this country are drawn as by a magnet to our arts and our great historic buildings.
In conclusion, I am privileged to chair an organisation called the William Morris Craft Fellowship. We need to encourage in our young in our schools the belief that to do things with the hands is every bit as worthy as to do other things. Indeed, I would say that a degree in media studies does not begin to compare in importance or satisfaction with the creation of a fine piece of sculpture or repairing a great historic building. We need to encourage more of our young people to take up careers in the crafts. I hope that my noble friend, with his manifold responsibilities, will talk to his colleagues in government and say that that ought to be a priority. If we truly believe in apprenticeships, there are no more worthy ones than craft apprenticeships.
Baroness Jones of Whitchurch
My Lords, I am very grateful to the noble Earl for tabling this Question this evening. In many ways, it is an indictment of this Government that the question at the heart of the debate has to be asked. However, I welcome the noble Viscount, Lord Younger, to his new role. I hope that he has taken note of the very powerful messages from around the Chamber this evening and I look forward to hearing what I hope will be an enlightening and reassuring response.
I do not want to dwell on Jeremy Hunt’s recent misfortune, but the context for this debate is a department that has been struggling with a lack of leadership for some time, so much so that there are persistent rumours that it will be abolished altogether at the reshuffle. The creative industries need a stronger voice in government and a stronger Secretary of State at the Cabinet table, not no voice at all, and they need a champion for a coherent arts and culture strategy across government, working with the Treasury, BIS and the Department for Education, for example, as our party intends to do.
In the short time I have left, let me give some illustrations of what should be included in that strategy. First, on funding, the Government need to identify the role that culture can play in leading us out of recession. The creative industries already account for 8% of our GDP and have the potential to grow at double the rate of any other sector. Philanthropy may have a role, but it should not be expected to plug the gap left by receding public subsidy and it has a limited reach—for example, 81% of private giving goes to organisations in London. As we have heard this evening, arts organisations need financial confidence and certainty to maximise the contribution that they can make to our future prosperity.
Secondly, we need to address the crisis in regional and local funding. On top of 28% cuts so far, the Local Government Association calculates that local authority funding for the arts will have all but disappeared by 2020. This cannot be allowed to happen. Community arts are where our next generation of writers, performers and artists learn their skills, and access should not be the preserve of those living in the metropolitan areas. This is why we need a statutory duty on all local councils to support the arts in their area.
Thirdly, we need an international strategy that recognises that the cultural industries not only attract inward investment but are major exports of this country. We are a major global player in, for example, design, music, animation and film, so next time David Cameron and Vince Cable lead a trade delegation abroad, perhaps they should be accompanied by our cultural rather than our manufacturing leaders.
Finally, we need to address the glaring mismatch between, on the one hand, the Education Secretary’s agenda, in which creativity, art and design, music and the performing arts are all but squeezed out, and, on the other hand, the skills demanded by the cultural leaders and innovators who will be contributing to our economic wealth in the future. These are the sorts of issues that we would like to see highlighted in a long-term strategy. Without it, as this debate has shown, the potential of the arts risks being set back for a generation.
Viscount Younger of Leckie
My Lords, I congratulate the noble Earl, Lord Clancarty, on securing this debate. It gives me particular pleasure to respond this evening on my first occasion at the Dispatch Box, as the noble Earl and I entered this House at about the same time two years ago. As a Member of this House who continues to keep arts and cultural issues on the agenda of this Chamber, he is to be applauded. He may not be surprised to hear that I do not entirely share his views on the current status of the arts. I am pleased to hear that others, such as the noble Baroness, Lady McIntosh, take a slightly more positive view. I also thank other Members for their contributions to our discussion. I particularly appreciate some support from the noble Lord, Lord Smith of Finsbury, but I recognise his highlighting of some strains at a time of austerity, which we are all aware of. I shall endeavour to answer the points raised and I can write to those noble Lords whose points I do not have time to address.
First, arts and culture is a hugely broad topic and the need for support, while very important, has to be prioritised and constantly reviewed. The Department for Culture, Media and Sport covers communications, creative, media, cultural, tourism, sport and leisure economies. It also includes ballet and dance, so importantly raised by my noble friend Lady Hooper. A key resolve is to create the conditions for growth in this sector by removing barriers, providing strategic direction and supporting innovation and creativity. These points have been made succinctly by the noble Baroness, Lady Young of Hornsey. Our overarching strategy is to see a thriving and resilient arts and cultural sector, drawing from a range of funding sources, appealing to a wide range of audiences and delivering high-quality culture. There are three strands to our long-term arts vision: financial stability, philanthropy and attracting new audiences.
First, I shall focus on financial support, where we have to start with some home truths. The first priority of this Government remains to create financial stability across the UK. Regrettably, this means sharing some pain—in some cases considerable pain—across all sectors of society. Of course, I would have preferred no cut to the arts and culture sector at all, but it would be unrealistic for cuts to be made in all other parts of the public sector except the arts. At the time of the 2010 spending review, departmental budgets, other than health and overseas aid, were set to reduce by an average of 19% over four years. However, while Arts Council England overall faces a significantly reduced budget, we have limited the reduction in the budget for regularly funded arts organisations to 15%, offering a little protection for front-line arts. Taking account of lottery as well as government funding, the Arts Council will receive some £2.3 billion over the next four years. This means that, in 2014-15, total arts funding via the Arts Council will have reduced by less than 5% in real terms, set against the comparable figure in 2010-11.
Now let me turn to lottery funding. One of the first decisions that we took in government was to revert the National Lottery to its original aims of supporting the four good causes by restoring the shares for each of the good causes of sport, heritage and the arts to 20%. The fourth good cause is the Big Lottery Fund, representing 40%. Due to continuing strong ticket sales, income projections indicate that there should be more than £1 billion of extra lottery funding for the good causes over the next five years, when compared with September 2010 projections. The arts good cause can expect to receive more than £1.8 billion of lottery money over the life of this Parliament. This is over £200 million more than was projected in September 2010.
Philanthropy was highlighted by some of your Lordships. I begin with a thought from Andrew Carnegie in 1888 that still resonates today. He said that to give money is,
“the noblest possible use of wealth … The man who dies rich dies disgraced”.
We have achieved much with regard to philanthropy in a short space of time. For example, we have launched the Catalyst scheme, whereby £30 million has been given to arts and heritage organisations to encourage match funding, and £55 million has been given to arts and heritage bodies to build up endowments. This was mentioned by my noble friend Lord Cormack. The Secretary of State last month commissioned three further reports to look at making legacy giving easier, harnessing digital technology to boost charitable giving to the culture and heritage sectors and looking at ways in which we can boost fundraising outside London, as the noble Lord, Lord Aberdare, mentioned. He also mentioned the importance of digital technology. I will need to write to him regarding his question on support for the conservatoires.
Some in the past have suggested that philanthropy is a means to replace public spending. Let me tackle this head on. It is simply untrue. As soon as this Government came to power, we carried out a comprehensive spending review as part of our strategy, whereby arts and cultural bodies such as the Arts Council, English Heritage and our major national museums knew the level of funding that they would receive over the period. We then encouraged the Arts Council to make the bodies that it supports aware of their budgets at the earliest opportunity, a request that it carried out in a speedy and professional manner. This was not an easy time for the sector or the Arts Council. Here, I pay tribute to the chair and chief executive of the Arts Council for the way in which it handled some difficult decisions. It is right not to assume that organisations that have received regular funding in the past should have a right to that funding in the future.
The third part of our strategy is to draw new audiences into the arts by, for example, utilising new technology. Last May, Arts Council England, in partnership with the BBC, launched a new free digital arts service, the Space, which could help to transform the way in which people connect with and experience arts and culture. Last summer, Arts Council England, the Arts and Humanities Research Council and the National Endowment for Science, Technology and the Arts—known as NESTA—announced a new £500,000 digital research and development fund for arts and culture projects that harness digital technologies to connect with wider audiences and explore new ways of working. Of course, nothing will ever replace the live experience, but if a child in Cumbria can watch a production 300 miles away from the National Theatre or Sadler’s Wells, we can proudly say that our investment in the arts can benefit the whole nation.
We also wish, through Arts Council England, for more people to experience and be inspired by the arts, irrespective of where they live or their social, educational or financial circumstances. To support this strategy, the Creative People and Places Fund will focus investment in places where involvement in the arts is significantly below the national average. A total of £37 million from the arts lottery fund will be available to establish around 15 projects up to 2015.
When considering the wide reach of the arts across social groups, it is worth highlighting a finding from our Taking Part survey. When respondents were asked whether they had been to a museum or gallery on at least one occasion in the past 12 months, two socio-demographic groups had significantly increased their visits between 2005-06 and 2011-12: among black and ethnic minority respondents there was an increase of 10.7 percentage points to 61.4%; and from those in the social rented sector there was an increase of 9.2 percentage points to 55.6%.
I would like to touch briefly on the Wedgwood collection on the grounds that, although the noble Earl, Lord Clancarty, has not raised it this evening, I know that it is a subject dear to his heart. The collection is designated as being of national importance; it is deemed by UNESCO to be one of the UK’s top 20 cultural assets. The collection holds several separate but nevertheless interrelated collections. It includes not only the most comprehensive accumulation of Wedgwood ceramics in Britain, if not the world, but also a huge range of portrait medallions from the 1780s through to today and some exceptionally rare and important surviving original stonework block moulds. This is why the DCMS Culture Minister is working hard behind the scenes, holding meetings in recent days with other government Ministers.
I turn to the question of libraries. Between 2005 and 2010, there was a steady decrease in the proportion of adults visiting public libraries. However, over the past two years visits have remained stable and it is very encouraging to see that the downward trend has slowed. A figure of 600 library closures is regularly quoted in the media, but this is misleading because it includes libraries where a local authority is merely consulting on a library’s future service and it assumes the worst-case scenario. It also includes libraries that have passed into community management.
Before I conclude, I turn to one or two other comments from your Lordships. I pay tribute to the contribution from my noble friend Lord Lloyd-Webber, who has given incalculable support to arts and culture not just in the UK but also globally. I do not entirely share his view of the arts in Britain, but I entirely agree that we need to nurture creative talent so that Britain continues to lead the world in this area. I also pay tribute to the noble Lord, Lord Hall of Birkenhead, for the work that he has done towards the Cultural Olympiad, which was also highlighted by the noble Earl, Lord Clancarty, and the noble Baroness, Lady McIntosh of Hudnall. I would turn very briefly to Brazil and the Scottish television questions, but I have run out of time.
In conclusion, I have attempted to answer as fully as possible on the specific focus of the debate, namely the Government’s long-term strategy for the arts and culture sector. We take our responsibility to the future of arts and culture very seriously. With our focus on financial stability, philanthropy and new audiences, we shall create the opportunity for everyone to enjoy and participate in artistic and cultural performances and attract foreign visitors for many years to come.
Justice and Security Bill [HL]
(11 years, 10 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Baroness Stowell of Beeston
That the House do now again resolve itself into Committee.
Baroness Stowell of Beeston
My Lords, in moving this Motion, I should like to refer briefly, for the benefit of all noble Lords, to interventions during the moving of amendments. During the previous session of the Committee earlier this afternoon, there were four occasions when Peers intervened on noble Lords as they were moving amendments and there was a mix of reactions from around the Chamber and indeed the Table. I thought it might be helpful to explain that it is permissible to intervene on a noble Lord when he is moving an amendment, particularly to ask a specific question for clarification. However, it is not customary to do so in this House because once a noble Lord has moved his amendment, it is permissible for noble Lords to intervene as many times as they wish during the debate at Committee stage. I thought noble Lords might find that clarification helpful.
Lord Butler of Brockwell
Lord Butler of Brockwell
My Lords, this is a probing amendment. Before the dinner break, we were discussing the circumstances in which information might be withheld from the Intelligence and Security Committee on grounds of national security. Paragraph 3(3)(b) refers to the withholding of information other than on grounds of national security, and the purpose of the amendment is to inquire of the Minister what sort of other information this sub-paragraph has in mind.
A characteristic of the Intelligence and Security Committee is that the agencies convey to it a good deal of information which would not be confided to a normal Select Committee. The ISC would be dismayed if that practice were to cease because this provision was in the Act. Therefore, I ask the Minister to give an example or examples of the sort of information that this sub-paragraph is included in the Bill in order to protect. If the box were empty, it would be a pity to have it in the Bill—indeed, doing so would make it poor legislation. However, if the Government have in mind information other than security information which should not be confided to the Intelligence and Security Committee, I know that the ISC would be very happy to consider that point.
The Marquess of Lothian
My Lords, I wish to add briefly to what the noble Lord, Lord Butler of Brockwell, has said. I am puzzled by this sub-paragraph because it does not say “information other than national security”; it says,
“not limited to national security”.
That suggests that anything that cannot be allowed to go to another Select Committee should not be given to the Intelligence and Security Committee. We debated earlier why the ISC should not be a Select Committee, and one reason is so that it can receive information which cannot be passed to an ordinary Select Committee. It may be that this provision is very well meaning and that it touches on advice given to Ministers or on other matters where I think we would all accept there have to be limitations. However, I wonder whether the draftsman has this slightly wrong. One reason for asking for the sub-paragraph to be deleted is in the hope that the Minister, along with the draftsman, will look at it again and come back with something which meets what I think the sub-paragraph is trying to achieve in meaning but which it does not achieve at the moment.
Lord Campbell-Savours
My Lords, this concerns precisely the same query as I had during our debate on the previous amendment—that is, I cannot understand what the provision is referring to, although I recognise the wording. The wording comes from the draft of something else that I have read and it must already be known to the agencies. Therefore, some briefing must have been given to the Minister regarding the source and why its inclusion in the Bill is warranted. Perhaps even now at this late stage I can, on a second occasion, ask for the same information. I should like to know the answer. It may be that the provision should simply be redrafted in language which simpletons such as myself can understand. However, at the moment I do not understand what it means.
Baroness Hamwee
My Lords, I have Amendment 25 in this group but I had not given much thought to sub-paragraph (b), the subject of Amendment 24, other than to note it in general terms. A question occurs to me, however, as it is being discussed, as to whether it is normal—perhaps I should not say “appropriate” as I do not want to be judgmental—for primary legislation to refer to a procedural matter in this way and incorporate it into primary legislation. I will leave that there.
My Amendment 25 proposes an exclusion if we are to have decisions by Ministers as to what should not be disclosed. My noble friend Lord Thomas put his name to the amendment without realising, as he has just now prompted me, that my drafting is sloppy and it should have started “or (c)” and not just “(c)”. I apologise to the Committee for that. The information which could not be disclosed would be information relating to conduct which might be a,
“breach of UK or international law”.
I refer specifically to,
“the European Convention on Human Rights, the United Nations Convention against Torture and other Cruel, Inhuman and Degrading Treatment”.
The wording is not original to me. It was suggested by Amnesty International. It was a good suggestion. I know that there are other noble Lords in the Chamber who have far more experience of these issues than I do. It occurred to me that the Minister might say that any such breach should not be dealt with in this way and if there was a claim by an individual about a breach that would be a matter for the court. Perhaps this amendment needs further thought. I would be concerned to be sure that the Government did not withhold such information. This at any rate might be a start and we will get the Minister’s comments.
Lord Lester of Herne Hill
My Lords, I rise as probably the least knowledgeable and competent person to say much about this but I do so because of my experience as a member of the Joint Committee on Human Rights. I am glad that the noble Lord, Lord Butler of Brockwell, has raised the issue. I do not expect an answer to my question this evening but it would be helpful if before Report stage what I am about to ask could be answered.
I am mystified about the principles that should apply not to the ISC but to parliamentary Select Committees generally. When we come to consider the Norwich Pharmacal matter, we will be considering the extent to which courts should not be able to order the disclosure of documents that might show serious wrongdoing of the kind indicated in the amendment of my noble friend Lady Hamwee because of the harm to national security or international relations. To that extent, the Executive would be less accountable to the courts than at present. The question then arises of the extent to which the Executive should be accountable to Parliament and especially to parliamentary committees. I understand why the committee we are concerned with should be treated differently from the ordinary parliamentary Select Committee for very good reasons to do with Clause 2 of the Bill. My question is: what ought to be the position with other parliamentary Select Committees? The noble Lord, Lord Campbell-Savours, has tabled an amendment dealing with that general issue.
It would be very desirable if there were a practice direction of some kind, whether in the Ministerial Code or elsewhere, that indicated what needs to be done when a Select Committee seeks evidence of a non-sensitive kind and a security service gives an informed view not about policy but about other matters to the committee. I do not understand whether any practice is laid down on how that should be done and what the limits are when a Select Committee seeks such evidence.
Under the previous Government, when Andrew Dismore was chairman of the committee, we dealt with administrative detention without trial. We tried to get help from the security services. We were helped to some extent by the police service and we took evidence in camera from the police on some matters to do with counterterrorism. However, we were told that we could not do that with the intelligence and security services.
As I said, I do not expect an answer now, but it would be helpful if, between now and Report, we could be informed by letter of what the Government consider to be the general position on those issues. Certainly, if there is wrongdoing of a serious kind involving the sorts of issues covered by the amendment of my noble friend Lady Hamwee, and if that sort of material is not to be shown either to this or any other parliamentary committee, and is to be barred from, or limited in, legal proceedings, I am troubled by the lack of accountability of the Executive to the judicial branch of government as well as to Parliament itself.
Lord Thomas of Gresford
My Lords, my question to the Minister is: what is meant by “proper” in paragraph 3(3)(b) of Schedule 1? One has to postulate a situation where a Select Committee, for example on health, asks for disclosure from a Minister, who says, “I would love to give you the information but it would not be proper—it would be contrary to propriety”. What does the word mean? Proper in what sense? Would it be immoral or illegal? What is the word supposed to convey? I simply do not understand and would be grateful if the Minister would help me.
Baroness Smith of Basildon
My Lords, I think that there is unanimity around the House about the questions that need to be addressed in connection with Amendment 24. Our concern is that the Government may have lowered the threshold for proving that information should be withheld. Under the Bill, the Secretary of State will decide whether information is too sensitive to disclose or is of such a nature that it would not be proper to disclose it to a departmental Select Committee. However, where the Intelligence Services Act 1994 prevents the Secretary of State vetoing the disclosure of information on grounds of national security alone, now national security is just one of the conditions under which the Secretary of State may use their veto. I support the amendment of the noble Marquess, Lord Lothian, and the noble Lord, Lord Butler of Brockwell, because I share their curiosity about what a consideration that it is not proper to disclose information to a departmental Select Committee would mean in practice, and why the provision of it not being proper to do so is seen as a necessary alternative to non-disclosure on the grounds that the information is sensitive and affects national security. I would be grateful if the Minister would look at this again.
Amendment 25 in the name of the noble Baroness, Lady Hamwee, disallows the use of the ministerial veto on disclosure of information when it refers to conduct that would amount to a breach of international law. I am curious about how that would work in practice. Who would determine whether the conduct to which the information relates could amount to a breach of international law? I find it difficult to understand how a Secretary of State would make that judgment on the actions of her own Government. I understand the principle behind it but I am not clear how it would work in practice. If the Minister would explain what is meant by “proper”, that would be very helpful.
The Minister of State, Home Office (Lord Henley)
My Lords, the noble Lord, Lord Campbell-Savours, suggested that this amendment was similar to the previous one. He is right, but we have been allowed to have a one-hour break to have something to eat between that previous amendment and this one. It is similar to that amendment. He also said that he was somewhat confused by it. He is not the simple Scottish lawyer that my noble friend Lord Lothian is, but my noble friend also got it right when he said that it was possible that the draftsman had got it wrong. If that is the case, obviously I will ask the appropriate officials to look at it again to ensure that we have got the drafting right.
Before I come to the substantive part of the amendment, may I also make it clear to my noble friend Lord Lester that we will try to address his points about general aspects of dealing with Select Committees between now and Report? I cannot give any guarantee of that but I certainly hope to do so.
There are a number of very long-standing conventions that have developed in Parliament in the relationship between Select Committees and successive Governments. Those conventions recognise that there are categories of information that may, in certain circumstances, be withheld from Select Committees on grounds of public policy.
The noble Lord, Lord Butler, asked for particular examples. All I can say at this stage is that examples of the type of information are given in the Cabinet Office guide Departmental Evidence and Response to Select Committees. Some noble Lords may know this guide by its other name, the Osmotherly Rules. I do not know those intimately but I look at the smile on the face of the noble Lord and I suspect that he was probably the one who drafted them some years ago. He shakes his head. But he knows them well. The categories of information set out in that guide include information about matters which are sub judice, information which could only be supplied after carrying out substantial research or at excessive cost, and papers of a previous Administration.
The sub-paragraph of the Bill that the noble Lords propose be left out and which my noble friend asks that we have the draftsmen look at again is a necessary part of the Bill. It provides a basis for withholding these categories of information from the ISC. If the relationship between the ISC and government is to reflect the relationship between a Select Committee and the Government, then it seems to the Government to be essential to have this significant aspect of the relationship.
The provision gives the Minister of the Crown discretion only to withhold material. In exercising that discretion the Minister would, of course, have regard to the provisions that the ISC has for keeping material confidential. For this reason, we would expect these powers to be used sparingly and only in exceptional circumstances. They have only been used sparingly in the past and we expect this to continue. However, it is important that those safeguards are retained.
My noble friend Lord Thomas also asked for the definition of “proper” in paragraph 3(3)(b). That is something I would ask that we look at again in relation to the concerns over the drafting of the Bill. With that explanation, I hope the noble Lord will feel it is not necessary to move his Amendment 24.
Amendment 25 would introduce a limitation on, or exception to, the powers of the Secretary of State or a Minister of the Crown to withhold information from the ISC, under paragraphs 3(1)(b) or 3(2)(b) of Schedule 1. The exception would apply wherever the information requested by the ISC relates to conduct which may amount to a breach of UK or international law.
Various noble Lords spoke very strongly about this at Second Reading, and I know there are concerns to ensure that the new ISC can operate as effectively as possible in future. Other amendments would obviously have the effect of removing entirely the powers of the Secretary of State or a Minister of the Crown—we discussed that in an earlier amendment—to withhold information from the ISC. This amendment is an alternative, therefore, to those amendments.
Lord Lester of Herne Hill
I understand all of that in the context of sub-paragraph (3)(a), which is carefully drafted and limited. However, I do not understand how it applies to the sub-paragraph that has been questioned by the noble Lord, Lord Butler of Brockwell, because that does not deal with sensitive information as defined in sub-paragraph (4) but simply states that,
“it is information of such a nature that, if the Minister were requested to produce it before a … Committee … the Minister would consider (on grounds which were not limited to national security) it proper not to do so”.
Unless I am completely wrong, that seems entirely subjective. It certainly would not be subject to judicial review. It is a Humpty Dumpty: when I use a word it means whatever I say it means, nothing more. To use an example from Ring Lardner: “‘Shut up’, he explained”. It is standardless and would cover anything the Minister thought about propriety. Surely that cannot be a proportionate way of having a safeguard.
Lord Henley
I do not think that the noble Lord, dare I say it, listened to what I was saying earlier about this amendment. It may be that we need to look at the drafting. I have given a commitment to the Committee that we will deal with that in due course and look to see whether we have got it right. As I explained—I have to go back into my speech—I think that that is probably the right way to proceed. If the noble Lord is accusing me of taking a Humpty-Dumpty approach, well, Humpty Dumpty was not always that wrong with some of these things; certainty in terms of when one is speaking at the Dispatch Box and defining what words mean. Anyway, if I say it means that, that is what it does mean—that, I think, is what the Humpty-Dumpty approach is.
I do not think that I can add much more to my response to the noble Lord and other noble Lords. I appreciate the intention behind Amendment 25. I appreciate what my noble friend is doing but I hope that the noble Lord will feel able to withdraw his amendment at this stage.
Lord Thomas of Gresford
As the noble Lord, Lord Henley, was speaking I wondered whether the word, “proper” is supposed to mean “contrary to convention”. It would be impossible to have a convention across all departments where there are Select Committees so it was conventional in one department to release this information but it might be conventional in another to release more or less. It would be almost impossible to get a standard of disclosure of information across the board which it is proper to disclose. I am very grateful for what the Minister has said on that issue.
Lord Butler of Brockwell
I am grateful to the Minister for saying that he will, with counsel, look at the drafting of this again, because it is clear from the contributions that were made to the debate that many of us do not understand entirely what is meant. I do, indeed, remember the Osmotherley Rules very well. I did not draft them myself—not surprisingly they were drafted by an official called Edward Osmotherley—but I do remember invoking them before Select Committees on various occasions and I do recognise as valid categories the categories that the Minister has mentioned. However, I think that the noble Lords, Lord Lester and Lord Thomas, have a good point when they say that, as drafted, this appears to be entirely subjective on the part of the Minister and the Minister, under this power, would be able to withhold anything which in his opinion was not proper. The Osmotherley Rules were instructions from Ministers to officials, but were, I think, generally accepted by Select Committees—not always; they were sometimes challenged—and were certainly the rules by which officials were guided. They were known and became accepted. The way that this is drafted introduces a more subjective element.
On the basis that the Minister has said he will look at the drafting and also that he assured the House that it is intended that the Minister will use this discretion sparingly, I beg leave to withdraw the amendment.
Baroness Hamwee
“(6) In this paragraph “information” includes documents and other material whether held in documentary, electronic or other form.”
Baroness Hamwee
Amendment 27 will not take long —under a minute. The amendment seeks confirmation that in this paragraph in Schedule 1 “information” includes the items listed. I cannot believe that it does not. Perhaps the Minister can even reply within the minute. I beg to move.
Lord Henley
I can be very brief. I can offer an assurance to my noble friend that “information” includes documents and other material whether held in documentary, electronic or other form. I hope that with that reassurance my noble friend will accept that the term “information” in the Bill includes all the matters that she lists.
Lord Rosser
Lord Rosser
My Lords, Clause 2(2) states:
“The ISC may examine or otherwise oversee such other activities of Her Majesty's Government in relation to intelligence or security matters as are set out in a memorandum of understanding”.
This follows Clause 2(1) which states that:
“The ISC may examine or otherwise oversee the expenditure, administration, policy and operations of —
(a) the Security Service,
(b) the Secret Intelligence Service, and
(c) the Government Communications Headquarters”.
The issue arises as to what are these,
“other activities of Her Majesty's Government in relation to intelligence or security matters”,
that are so vague that they cannot be set out in the Bill, or what are such unknown other activities of Her Majesty’s Government that not even Her Majesty’s Government know what they are. Rather than declare them now, the Government want to tuck them away in a memorandum of understanding that must be agreed with the Prime Minister and not be subject to prior discussion as part of this Bill or subsequently approved by Parliament. This idea of not providing important details when a Bill is published, or within a Bill itself, is becoming a feature of Home Office legislation. We have seen the same thing with the framework document which is still awaited under the Crime and Courts Bill. It is a most unsatisfactory and lazy approach on the part of the Home Office.
The amendment seeks to define what those other activities are in subsection (2) which, under this amendment, would read:
“The Intelligence and Security Committee may examine or otherwise oversee any part of a government department, or any part of Her Majesty's forces, which is engaged in intelligence or security activities”.
That is in line with the wording in paragraph 4 of Schedule 1 to the Bill, which defines sensitive information as,
“information which might lead to the identification of, or provide details of, sources of information, other assistance or operational methods available to—
(i) the Security Service,
(ii) the Secret Intelligence Service,
(iii) the Government Communications Headquarters, or
(iv) any part of a government department, or any part of Her Majesty's forces, which are engaged in intelligence or security activities”.
The wording in the amendment makes Clause 2(2) less vague and more specific. If the Minister does not like the amendment, perhaps he could set out what,
“other activities of Her Majesty’s Government in relation to intelligence or security matters”,
are not covered by the amendment and by Clause 2(1). Perhaps he could also say why the Government prefer to spell out some areas of examination or oversight by the ISC in a subsequent memorandum of understanding, rather than spell them out in the Bill. I beg to move.
Lord King of Bridgwater
My Lords, that was a rather savage attack on the Government, which was not entirely justified. I thought there was a general recognition in the House that what the Government are doing in this clause is recognising the situation that has already developed. The ISC started with a fairly limited remit under the Intelligence Services Act 1994. Progressively, through such things as the DIS in the Ministry of Defence, JIC and access to JIC assessments, bringing in the Comptroller and Auditor-General to assess the financial operations of the agencies—a whole lot of different ways—the committee expanded its role and activities in a way that was entirely sensible, in which people collaborated, and which was accepted by the agencies and the Government.
I do not know whether there is something frightfully subtle in the amendment that the Opposition have tabled and how far it is significantly different from what the Government have already put in the Bill. The Government are recognising, and it seems quite fair that it is set out in a memorandum of understanding, just what the area and remit of the committee will be. Certainly, in the end—I think it was the experience of the noble Lord, Lord Campbell-Savours, as well——whatever we sought to look into and in the range over which we sought to expand our activities, I do not recall any area in which we were significantly frustrated.
Lord Henley
My Lords, this is the first of a number of amendments that deal with a memorandum of understanding. I start by apologising to the noble Lord, Lord Rosser, who makes attacks on the Home Office for being somewhat remiss in the slowness with which it produces things, particularly in relation to the framework document. As the noble Lord is aware, I have promised that we will have a draft or an outline of that framework document before we get to Report stage of the Crime and Courts Bill. Since that is unlikely to take place in this House before the end of October, we have a certain amount of time.
On the memorandum of understanding, as set out in the Bill, I am grateful for the support of my noble friend Lord King on this. It is right that the memorandum of understanding should spell out the precise remit of the ISC in relation to bodies other than the agencies, because the memorandum of understanding can make provision at a level of detail that is not appropriate for primary legislation. This is particularly important because parts of government departments engaged in intelligence and security activities may well be engaged in other activities besides, which would not properly fall within the remit of the ISC.
Clearly, things change over time. Departments reorganise. The functions done by one department one year may be done by another the following year. The noble Lord will remember when his party was in Government, how frequently they changed the names and the functions of departments. I have completely lost track of the number of changes there were to departments. One of the things we did very firmly when we came back into office was not to change the names or functions of departments, except in the most marginal capacity.
I believe the intelligence world is no different to any other part of government. For example, as with the recent Levene report, we could find that future reorganisations of defence may change organisational boundaries that affect the MoD’s intelligence activities. A memorandum of understanding is a flexible document. It can be changed much more easily than primary legislation. It will enable the intention of the Government that the ISC should have oversight of substantively all of central government’s intelligence and security activities to be realised now and, more importantly, in the future should they change. The amendment seeks to limit that. For that reason I cannot offer any support to the amendment. I hope the noble Lord will feel able to withdraw it.
Lord Rosser
I thank the Minister for the reply. Of course, my amendment does not refer to any government department by name because it lifts the wording from paragraph 4 of Schedule 1, which refers to,
“any part of a government department, or any part of Her Majesty’s forces, which is engaged in intelligence or security activities”.
From what the noble Lord has said, I am still not quite sure how extensive the areas will be that might be included in the memorandum of understanding that would not be included in the definition that I have given in this amendment, when that is also allied to Clause 2(1). So I am not sure I have had a very direct answer to that question.
Nor has the Minister addressed the fact that putting it in a memorandum of understanding means that it will not be subject to prior discussion as part of this Bill. It is a document that the ISC has to agree with the Prime Minister and, as I understand it, it will not have to be approved subsequently by Parliament. The more reliance that is put on that memorandum of understanding and the more information that is put in it, the less opportunity this House has to discuss the issue.
I would have thought that since the wording I used has been lifted from another part of his own Bill, the Minister might at least have accepted that that was worth considering because it would, at the very least, reduce the amount that had to be covered in the memorandum of understanding, and thus reduce the amount that could not be debated as part of this Bill and which would not require the approval of Parliament. There has been no offer from the Minister even to look at this issue from that aspect. It is just a straight dismissal of the terms of this amendment. I express my disappointment at the Minister’s reply—he could have been much more sympathetic and helpful—but I note his reply and beg leave to withdraw the amendment.
Lord Butler of Brockwell
Lord Butler of Brockwell
My Lords, Amendments 30 and 32, in my name and that of my colleague the noble Marquess, Lord Lothian, raise substantial points.
Amendment 30 deals with the point where the Bill cannot mean what it presently says. I will read it out and that will be the best way of making it clear. Clause 2(3) states:
“The ISC may, by virtue of subsection (1) or (2), consider any particular operational matter but only so far as the ISC and the Prime Minister are satisfied that … the matter … is not part of any ongoing intelligence or security operation, and … is of significant national interest”.
The Intelligence and Security Committee accepts entirely that those are the two categories of operation that the committee should—and does—normally look at. I note that the amendment tabled by the noble Lord, Lord Campbell-Savours, seeks to remove the ban on looking at any ongoing intelligence operation. The committee agrees that its oversight of operations should be retrospective and on matters “of significant national interest”.
However, the effect of the drafting is that when an operation “of significant national interest” is over, the agencies should have to get clearance from the Prime Minister as well as the ISC before discussing those matters with the committee. That is not only bureaucratically very intensive but a step backwards from what happens now. What happens now is that when an operation involving important matters is over, the intelligence agencies, of their own accord, report on it to the ISC, which looks into it and discusses it with them. The committee has had access to that sort of material for a number of years. In some cases the agencies volunteer it and in other cases the ISC asks to see it. I cannot believe that it is the intention in such cases, which have been routinely going on, that the Bill should require the Prime Minister to be consulted whenever the agencies wish to report such matters to the committee.
That having been said, the ISC is content that its normal purview should be of operations retrospectively where there are significant national interests. Amendment 32 would add a new subsection saying:
“The ISC may, notwithstanding subsection (3), consider any particular operational matter if the relevant Minister of the Crown agrees to the consideration of the matter”.
That is simply to give flexibility. As I said, there is no difference from the Government’s view that the purview should normally be retrospective. However, if it suited the Government that the committee should look at an ongoing security operation—this would be at the discretion of the Government—clearly it would be unfortunate if the Bill ruled that out. This is simply to allow flexibility on a matter where in general the committee and the Government are in agreement.
The Marquess of Lothian
If I may, I will quickly add a word to what the noble Lord, Lord Butler of Brockwell, said. He talked about this provision creating bureaucracy. In my view it could be worse. It could create an enormous logjam in Downing Street if every single item needed the consent of the Prime Minister. The danger then is that the logjam will continue to grow until you get to a stage where information that should have been looked at either will not be looked at or will be looked at so late in the day that it is not worth looking at.
Lord Campbell-Savours
My Lords, I have proposed Amendment 31 not because I want to remove completely the intent behind the words,
“is not part of any ongoing intelligence or security operation”;
but because it needs qualifying further. Under the proposals in this clause, it is possible to block much operational material being brought before the Committee. As I read it, the agencies need only declare that a matter is,
“part of any ongoing intelligence or security operation”,
and they can block it and deny access to the committee. What is the danger in that? It could close the door on a large volume of information.
Let us take as an example operations in Iraq. Because of the merging of operations, one could simply group an operation, which the committee might regard as one that it should be considering, with other operations in Iraq but merge them under a single operation heading and, by taking that action, avoid bringing information about those operations before the committee. Therefore, merged operations may well hide information from the committee to which it should have access. The same would apply to operations in Afghanistan. It could certainly apply to operations relating to drugs in Colombia and, without doubt, it could refer to operations in Northern Ireland. Simply the declaration that they were merged under one operation would mean that the committee could be denied information. I wondered whether the services were aware of this when they were making their submissions during the drawing up of the Bill, so that they were prepared to concede the principle of access to operational information.
That brings me back to my model, because it is only if the chairman of the committee has access to everything that that possible problem can be avoided. The chairman would be in a position to argue with the agency about whether the merging of operations was denying information to the committee.
Lord King of Bridgwater
My Lords, as I consider our proceedings in this Committee stage of the Bill, I increasingly think that your Lordships’ House is providing a real service to the other place in the fact that this Bill has started here. It is quite clear that there are some drafting problems. The amendment moved by the noble Lord, Lord Butler, and, indeed, the amendment tabled by the noble Lord, Lord Campbell-Savours, are serious amendments that should be considered. I think that the Minister will be doing a great service to his colleagues in the department and may be able to clear up a number of issues. The drafting is not right. It could be cleared up now and the Bill will be much simpler and much more appropriate by the time it goes to another place.
Lord Lloyd of Berwick
My Lords, I regret that I was not able to take part in the Second Reading of this Bill. I support Amendment 32 and suggest that in one very minor respect it may not go quite far enough. There used to be a body known as the Security Commission, on which I served for some years. I succeeded the noble and learned Lord, Lord Griffiths, as chairman of that body and was in due course succeeded by the noble and learned Baroness, Lady Butler-Sloss. Our main function was to investigate and report on cases of espionage—selling secrets to the Russians and things of that kind. We were appointed by the Prime Minister to investigate particular matters and, before we were appointed, we had to have the consent of the leader of the Opposition. The noble Lord, Lord King of Bridgwater, will remember those days. I think that it can be said that we did the state some service. Since the end of the Cold War, espionage is no longer the problem that it was, certainly not in the same way. Therefore the Security Commission has not sat for some years.
I suggest that it is possible that such cases might arise again in the future. If they did, surely the new security committee would be the obvious body—the ideal body—to carry out such an investigation. That being so—if it is so—I am concerned that Clause 2, even with the amendment suggested by the noble Lord, Lord Butler, might not be quite right to enable that to happen. It might or might not be, strictly speaking, an operational matter of MI6.
My suggestion would be to add a very few words to Clause 2(4). After the word “functions”, one could add, “or the functions formerly performed by the Security Commission”. That would be in line 20. Future historians would no longer have to worry about whatever happened to the Security Commission and we would have given that body what one might call a decent burial. I had drafted an amendment to that effect, but I was too late to put it down this morning. I would be happy to move such an amendment on Report, if it were to find favour.
Baroness Smith of Basildon
My Lords, this certainly seems a very sensible and practical group of amendments. Amendment 30 would remove the Prime Minister’s involvement in the assessment of whether a matter that the ISC wished to consider satisfied the criteria of being of significant national interest and not part of an ongoing operation. I fully support the extension of the ISC’s statutory remit to include particular operational matters; it is a function that the committee, in practice, already performs. We also understand the necessity of constraining this remit. I think that the noble Lord, Lord Campbell-Savours, in speaking to his amendment, made that point, too. It is necessary to ensure that the committee’s work is focused on areas of significant national interest and does not jeopardise ongoing operations. The determination of whether an operation is of significant national interest and whether it is not currently ongoing are objective judgments. One is a decision about what is of interest to the public, which the committee is surely best placed to judge, and the other is a statement of fact, which would simply involve consultation with the relevant government agencies. It is not a process of negotiation with the Prime Minister.
It is unclear to me why this assessment cannot be left to the discretion of the committee without needing the involvement of the Prime Minister. If the key point of the reforms in this legislation is to establish a clearer independence of the committee from the Prime Minister and a closer connection with Parliament, then requiring the ISC to seek the permission and the agreement of the Prime Minister before determining whether a specific operational matter lies in its remit sends a completely wrong signal about the independence of the ISC.
We also give full support to Amendment 32, which would provide important flexibility to the committee’s powers to view specific operational matters. We have consistently argued that the ISC should be given the power to review specific operational matters, such as control orders, while recognising that limitations may apply with respect to ongoing operations where the committee’s work may jeopardise the integrity of those operations. An absolute ban on considering any ongoing operational matters seems to us to be unnecessarily heavy-handed. It is easy to imagine particular cases of significant public interest, perhaps where the majority of the operation has been concluded but there is still some ongoing activity that cannot be reviewed by the committee, even if the Government agree that there is no risk. Amendment 32 would be a highly sensible alternative to the blanket ban by allowing the committee, with the agreement of the Secretary of State, to review certain ongoing operations. I agree with the noble Lord, Lord King of Bridgwater, that there seems to be a drafting deficiency. I hope that the Minister can give a more positive response to this group of amendments than he was able to for the last one.
Lord Henley
My Lords, first, if there are any drafting concerns about this Bill, as I hope I made clear at an earlier stage, we will be more than happy to look at them. This is what this House does very well and the debates that we have been having this afternoon are indicative of that. We will take these points on board and the similar drafting points made by my noble friend Lord Lothian.
Secondly, I understand that the noble and learned Lord, Lord Lloyd, tried to table an amendment earlier today but I think that he missed the boat. I suppose that he could still have put down a manuscript amendment—fortunately, he decided not to—but he will come back to that in greater detail on Report. Certainly we will listen to his remarks in due course about the Security Commission, which he said that he chaired and which was later chaired by the noble and learned Baroness, Lady Butler-Sloss.
I hope that the Committee will bear with me if I explain in some detail just what we are trying to do and what we think is wrong with the amendments. I hope that noble Lords will also accept that, as I just said, we are more than happy to look at matters relating to drafting again, because we want to get this right.
The Bill extends the ISC’s statutory remit and makes clear its ability to oversee the operational work of the security and intelligence agencies. This is an important and significant change and will be key to ensuring that the ISC continues to perform an effective oversight role. With this formalisation of its role in oversight of operational matters, we would expect the new ISC to provide such oversight on a more regular basis.
In the Bill, the ISC may consider any particular operational matter, but only so far as the ISC and the Prime Minister are satisfied that the matter is not part of any ongoing intelligence or security operation and is of significant national interest. The ISC’s oversight in this area must be retrospective and should not involve, for instance, prior knowledge or approval of agency activity. Consideration of the matter must also be consistent with any principles set out in, or other provision made by, a memorandum of understanding. We will discuss that again in due course.
Of course, the ISC is not the only body that oversees the operational activity of the agencies. The Prime Minister has overall responsibility within government for intelligence and security matters and for the agencies. Day-to-day ministerial responsibility for the Security Service lies with the Home Secretary and, for the Secret Intelligence Service and GCHQ, with the Foreign Secretary. The Home Secretary is accountable to Parliament, and therefore to the public, for the work of the Security Service; similarly, the Foreign Secretary has his accountability.
The Intelligence Services Commissioner provides oversight of the use of a number of key investigatory techniques employed by the agencies and by members of Her Majesty’s forces and Ministry of Defence personnel outside Northern Ireland. The Interception of Communications Commissioner’s central function is to keep under review the issue of warrants for the interception of communications.
On Amendments 30, 31 and 32, the first amendment would have the effect of leaving it solely to the judgment of the ISC to decide when the criteria for considering a particular operational matter are met. The noble Lord, Lord Butler, is a current member of the Intelligence and Security Committee and, as such, speaks from a position of great knowledge. However, I hope that he would agree that the judgment as to whether an operational matter meets the criteria is one that should be for both the ISC and the Government and not just for one or the other. It is very important that we get this judgment right.
Lord Butler of Brockwell
It may be worth making the point that the amendment does not leave it solely to the judgment of the ISC; it just says, as a matter of fact, that the operation has concluded or is of national significance. So it would not just be the ISC that decided that—it would be the fact. If I may say so, the Minister misunderstands the purpose of the amendment.
Lord Henley
I apologise to that extent if I have misunderstood what the noble Lord was getting at in his amendment and I hope that I did not mislead the House in so doing. The Government’s intention, on that memorandum of understanding, which has to be agreed by the Government and the ISC, is that it will be the appropriate vehicle for agreeing the process to ensure that the information is provided to the committee in an appropriately prompt manner.
The amendment in the name of the noble Lord, Lord Campbell-Savours, would remove one of the key restrictions on the ISC’s new power to oversee agency operations, namely the requirement that its oversight of operations should be retrospective. The extension in the Bill of the ISC’s statutory remit into the agencies’ operational work is a significant deepening of the committee’s powers. While the ISC has in the past conducted inquiries into operational matters with the agreement of the Prime Minister, such as its inquiries into the London bombings of 7 July 2005 and into rendition, the provisions in the Bill provide a formal remit for the committee in this area. We anticipate that the new ISC will provide such oversight on a more regular basis.
We have worked with the current ISC to develop the new arrangements, and the committee agrees with the Government that its oversight of operations should be retrospective in nature. In other words, the ISC should not oversee operations that are ongoing. There are a number of very good reasons for this.
Lord King of Bridgwater
This is my concern about the drafting: what is an ongoing operation? Is it 7/7 and the follow-up; or is it the jihadist threat that exists and which we think possibly continues to exist at this time, with the Olympics coming up and the heightened security alert that will continue afterwards? What is an “ongoing” security operation?
Lord Henley
My Lords, I am not sure that the word “ongoing” has actually been tested in the courts. It is in the Bill, which is why I make this point. We have no judicial interpretation of “ongoing”, but I hope the courts would understand and interpret it as the words appear in the Bill.
Lord Campbell-Savours
This has nothing to do with the courts. This will be a discussion in the committee with the chairman and the agencies, which is where we may well end up having an argument. The agencies may say no, or Ministers may say, “No, you cannot have it because it is part of some ongoing operation”. They will not know the point at which operations have merged into a long extended operation that might go on for a long time. I am quite worried about this section. I am beginning to believe that the agencies might have conceded on this fact because they knew that they would be able to use this issue of merged operations as a way of avoiding giving information to the committee. The Minister is saying nothing here to reassure me. Perhaps he will give us more detail on Report about what constitutes “ongoing” in the way which the noble Lord, Lord King, has suggested.
Baroness Hamwee
My Lords, on that subject, when the Minister considers the word “ongoing”, will he tell the House whether it covers a longer period than “current”? I think I would have understood “current” investigations.
Baroness Hamwee
Maybe. The Minister says it has not been traditionally considered and is one of those words that only recently has come into normal use. It probably means slightly different things to different people.
Baroness Manningham-Buller
I think the problem is the word “operation”. Certainly in the security and intelligence world, an operation is something finite, with a code name, that will come to an end. I think that is what the legislation is trying to get at. It certainly would not be a merged operation such as a jihadist threat or Iraq, which would not be seen in those terms. That may be the difficulty. If we can make that clear in defining it, that might be helpful to the Minister.
Lord Henley
I am grateful to the noble Baroness for her intervention. I am also grateful to my noble friend Lady Hamwee for her suggestion that “current” might be a better word than “ongoing”. “Ongoing” is not a word that I would necessarily have wanted to use and is not one that I have come across much before in legislation. “Current” might be a better term and might be one of the reasons why we need to look at the drafting of these matters, to make sure that we have got it absolutely right. For that reason, all I can say is that we will look again—the noble Lord, Lord Campbell-Savours, smiles—at that word “ongoing” and make sure that we have got it right. Again, as a layman and not a simple Scottish lawyer, it seems to me that “ongoing” is something that we can all understand relatively simply, so I hope we can get this right. That is the point of the processes that we are going through in this House. I hope that we can get it right in due course.
Amendment 32 is the third amendment in this group and the second in the name of the noble Lord, Lord Butler, and my noble friend Lord Lothian, and would allow the ISC to oversee an operational matter that does not meet the criteria in Clause 2(3) if the relevant Minister of the Crown agrees to consider the matter. Given that the requirement is that the Government and the ISC both need to agree, it is difficult to see circumstances in which the noble Lords’ amendment would ever need to be used. For example, we cannot presently foresee circumstances in which it would be appropriate to call on the ISC to put its resources towards examination of operational matters that were not of significant national interest.
Nor would it be appropriate for the ISC to have a role in approving future actions or decisions relating to the agencies, or to examine ongoing—again I use that word, but perhaps I ought to say current—operations. Such a role could cut across lines of ministerial accountability and could even have the potential to prejudice those operations. The amendment is therefore unnecessary.
I hope that that deals with most of the points. I am sure that it does not, but I have given a commitment that we will look again at the drafting of this part of Clause 2. I hope that the noble Lord will feel able to withdraw the amendment.
Lord Butler of Brockwell
My Lords, I am grateful to the Minister and to other noble Lords who have taken part in this debate. It has brought to light matters that need to be clarified before Report. I emphasise again—and I apologise for rudely interrupting the Minister—that there is no difference between the ISC and the Government on what the committee’s purview should be. The ISC accepts that its purview should normally be retrospective and that it should be confined to matters of significant national interest. What is new about the way the clause is drafted is the interpolation of the Prime Minister in deciding that that is the case. That is unnecessary, and as my colleague, the noble Marquess, Lord Lothian, said, it would produce the most tremendous logjam and would be a backward step from where we are now. That is the only difference, but I hope that that issue can be looked at again.
If I may say so, the discussion on the amendment of the noble Lord, Lord Campbell-Savours, brings out the ambiguity of the word “operations”. As the noble Baroness, Lady Manningham-Buller, said, it is perhaps because it is a term of art in intelligence speak and means something specific rather than an ongoing exercise. If I may do the draftsman’s work and join the noble Baroness, Lady Hamwee, it may be that “specific operation” might be more helpful than “current” or “ongoing”. However, that is a matter for consideration.
On Amendment 32, I am fortified by a whispered conversation with the noble Baroness, Lady Manningham- Buller. One can imagine a situation in which it might be useful to Parliament and the nation, and to the agencies themselves, if the ISC is asked to look at an ongoing, even specific, operation. Let us imagine that something is going on that has got into the media, is creating great concern, there are great sensitivities to it, but it is urgent that someone should look at the matter and provide a report to Parliament. That is the sort of circumstance in which my proposal might be helpful. It is discretionary and the decision would be with the approval of the Minister, but it seems a pity not to allow for that sort of situation by making provision for it in the Bill.
Those are the considerations that I would urge on the Minister and the Government. With the assurance that he will look at them before Report, I am content to withdraw the amendment and not move Amendment 32. I beg leave to withdraw the amendment.
Lord Campbell-Savours
“(d) must be approved by Parliament”
Lord Campbell-Savours
My Lords, I shall be very brief as the hour is late. I cannot see what the problem is with the Government accepting this amendment, which would simply require that the memorandum of understanding under this clause should be approved by Parliament. It is not as if the memorandum of understanding would include security sensitive information. As I understand it, it is simply about structures. The parliamentary debate would be about the structures that have been established in the detail of the memorandum of understanding. In addition, if Parliament were to give approval during the debate, Members might want to raise issues not covered in the memorandum of understanding. One of these might be regarding the investigator. There was once an investigator to the ISC. If I remember correctly, his name was Mr Morrison, and for reasons I have never understood his employment was terminated. Many Members called for the investigator to be in place and I should have thought this is an example of an area where Members of Parliament might want to question Ministers.
There is also the issue of access to individual officers within the service. When I was on the committee, the arrangement was that it was primarily the directors of the services who gave evidence to the committee, although on occasion it was one or two others. It might be that the memorandum of understanding should be considered by Parliament in the context that there needs to be some flexibility on whether people other than agency directors—perhaps officers from lower down within the ranks—should be called upon to give evidence to the committee. I do not know because this is an area I do not know a lot about. All I am saying is that I think there is room here for a debate in Parliament to consider the detail of the structure, and it is something that we have not debated here today.
My noble friend Lord Rosser dealt in some detail with these issues during the debate on one of his amendments and he sought assurances. I do hope that the Minister can explain today why Parliament will not be approving these matters. I understand that the document will be laid before Parliament, but that there will be no parliamentary debate. I beg to move.
Baroness Hamwee
My Lords, I have Amendment 34 in this group, which uses the formal language of the affirmative procedure but comes to the same thing as the noble Lord’s Amendment 33. I tabled the amendment in part because I wanted to seek more information about the memorandum of understanding. The noble Lord may not have seen it, but the Government have today circulated a long note responding to a number of points raised by noble Lords at Second Reading, for which I thank them. The note includes a paragraph on the memorandum of understanding in response to my question about whether we will be able to see a draft of it, or of a framework, to enable further debate.
Lord Campbell-Savours
Did the noble Baroness say that she had seen a draft document or memorandum of understanding? Perhaps I misheard. Could she clarify what she said? I am sorry I could not hear.
Baroness Hamwee
No, I said a note from the Government responding to points made by noble Lords at Second Reading.
Lord Henley
Perhaps I may assist the noble Lord. It was a note sent out by myself and my noble and learned friend Lord Wallace of Tankerness, which I hope went to all Peers who spoke at Second Reading. If the noble Lord has not received his, he should have done and I can only blame the post.
Baroness Hamwee
My Lords, the Minister should not blame the post; it came to me by e-mail this morning. The post may follow in about three days. I want to put on the record what the note told me and other noble Lords who have seen it about the memorandum of understanding. It states:
“The MoU needs to be agreed between the ISC and the Prime Minister”.
We know that. It continues:
“We are starting this process of drafting and agreeing this document, and will do so in parallel”—
I stress those words—
“with the Bill’s passage ... Once we have an agreed draft … it is our intention that it is published, to help inform debate”.
The thrust of my amendment is that it should be subject to debate. The Ministers who sent the letter then told us:
“The matters covered … may include … The factors to be taken into account in deciding whether a particular operational matter which the ISC might wish to consider is ongoing and/or of significant national interest … A description of the arrangements by which the ISC will request, be provided with and hold information, including the circumstances in which the ISC will be able to access primary source materials … A description of the role of investigative staff in the ISC’s work; and … A description of the process for producing an ISC report”.
As the noble Lord said, the memorandum of understanding will be a public document, so it cannot be so sensitive that that is a reason for it not to be debated. I say to the Committee that today’s debates have shown how much Parliament—and this House in particular—has to contribute to consideration of the criteria that will be applied. We are told in Clause 2(4)(a) that the memorandum of understanding,
“may include other provision … which is not of the kind envisaged in subsection (2) or (3)”.
That is very wide. I realise that “envisaged” is another term that I have not come across in legislation before. I do not know whether it means more than “not within”, “not as described” or “not subject to” subsections (2) and (3). I am beginning to feel like an awful old fogey in raising these points but legislation should be completely clear. I believe that the criteria should be matters for debate and not simply for the draft, although we look forward to it as it will inform debate. Reading this note, it seems to me that the approach is more top-down than I should like to have seen.
Lord Rosser
My Lords, perhaps I may make one brief comment. I have already expressed our views about the memorandum of understanding and I think that in return I was told by the noble Lord, Lord King of Bridgwater, that I was being savage.
I just wish to pursue the point that the noble Baroness, Lady Hamwee, made about other references in Clause 2 to the kind of content that will be included in the memorandum of understanding, which we will not get an opportunity to debate and which does not have to be approved by Parliament. Clause 2(3) says:
“The ISC may, by virtue of subsection (1) or (2), consider any particular operational matter but only so far as the ISC and the Prime Minister are satisfied that … the matter … is not part of any ongoing intelligence or security operation, and … is of significant national interest, and … the consideration of the matter is consistent with any principles set out in, or other provision made by, a memorandum of understanding”.
One has to bear in mind that this is not a document that we will be able to debate and discuss and it will not need to be approved by Parliament unless the Minister is going to move on this amendment. What are these principles that will be set out in the memorandum of understanding which we are not going to be told about when discussing the Bill and which we are not going to be allowed to discuss?
Lord Henley
My Lords, first, I apologise to the noble Baroness, Lady Hamwee—who is great on drafting. She has picked out another word—envisaged—which she has not come across in legislation before. We will add that to “ongoing”. I suspect that, like her, I am probably an old fogey on these matters. These matters are new to drafting but develop in the way that they do. We will consult the draftsman on whether he is happy with “envisaged” or whether some other word could do it.
It would probably be helpful if I first explain the purpose of the memorandum. We believe that it will be an important document in the relationship between the ISC and the Government. It will define the precise extent of the ISC’s oversight of parts of the intelligence community other than the agencies. It will set principles or other criteria that must be met before the ISC can consider particular operational matters. It will describe the arrangements by which the agencies and other intelligence bodies will supply information to the ISC. We expect that it will also cover matters such as: the factors to be taken into account in deciding whether a particular operational matter which the ISC might wish to consider is ongoing, current—or whatever word we particularly wish to use—and/or of significant national interest; a description of the arrangements by which the ISC will request and hold information, including the circumstances in which the ISC will be able to access primary source materials; a description of the role of investigative staff in the ISC’s work; and a description of the process for producing an ISC report. That is what we intend that it should cover. There will no doubt be other matters that will also need to be covered.
The memorandum of understanding in the Bill must be agreed between the Prime Minister and the ISC and it can be altered or replaced at any time by agreement. It is intended that the first memorandum of understanding will be agreed immediately on the coming into force of the relevant provisions. As I said, however, we hope that we can give some idea of what it is going to look like by the time we reach Report.
As is usual for a memorandum of understanding—this is not an unusual procedure—there is no parliamentary approval procedure. This was looked at by the Delegated Powers and Regulatory Reform Committee and it was perfectly happy with this. While the memorandum of understanding itself will be an unclassified document which will be published and laid before Parliament, its precise terms are very likely to be shaped by matters which are sensitive in terms of national security and which therefore cannot be made public. In these circumstances, it is particularly appropriate that the memorandum of understanding can be concluded without the need for parliamentary approval.
Of course the terms of the memorandum of understanding must be agreed with the ISC. The Bill makes that clear—it is agreed between the Government and the ISC. The ISC, we must always remind ourselves, is a committee composed of parliamentarians—nine from both Houses. It could be eight members from this House and one from another, but it might be some other arrangement, as it is at the moment—seven from another place and two from this House. As a result of the changes that the Bill will bring about the committee will be appointed by and accountable to Parliament. In some ways, requiring these parliamentarians to seek the approval of the rest of Parliament is a restriction on the independence of the body. I think that it would be unusual for Parliament to have such control over the detailed way in which what amounts to a Select Committee—as the noble Lord, Lord Campbell-Savours, is looking for—has decided to conduct its business.
We have not yet published the memorandum for the simple reason that the memorandum of understanding does not exist. We are starting the process of agreeing this document with the ISC and will do so in parallel with the Bill’s passage through Parliament.
Lord King of Bridgwater
My Lords, I am a little confused about the memorandum of understanding. We seem to have slipped into an issue that arises in the second part of Clause 2: operational matters. The memorandum also refers to overseeing other activities of Her Majesty’s Government in relation to intelligence and security matters. I understand that that is a reference to the Ministry of Defence, to the CDI—who used to appear before the Intelligence and Security Committee—to the Home Office and to other people who gladly came and gave evidence. Presumably that is part of the memorandum of understanding. There is nothing controversial about this; it merely legitimises and puts into statute a situation that already exists.
If I understand correctly, the Minister is now saying that the memorandum of understanding will not appear before the end of the parliamentary process, and that then it will not be subject to any further parliamentary approval. While I entirely understand that necessarily secure issues in the memorandum may have to be dealt with separately, much of what is in the legislation and the memorandum of understanding are the rules under which the ISC will operate and the access that it will have. The Minister is very nobly taking on the first cut of the Bill, if I may put it like that. The memorandum of understanding will have to be looked at again. If it covers the first part of what I am talking about, certainly it should be available to Parliament. Either it should be under consideration while we debate the Bill or it should come up at a later stage, subject to parliamentary approval if it is subsequent to the passage of the legislation.
Lord Henley
My Lords, again I do not think that my noble friend followed what I said. We will not agree the final memorandum until after the Bill has completed. However, I make it clear that we want to produce a draft of it at an earlier stage as we complete our discussions with the ISC. Once we have an agreed draft, it is our intention to publish it to help inform debate. I hope that this will happen before Report. The Bill is only just starting in this House. It has to go through another place as well. As discussions on this will be ongoing—I must not use the word “ongoing”—as the Bill is considered by Parliament, it would not be appropriate to share the first draft before at least it has been agreed by both parties.
My other point is what I said at the beginning of my remarks: the memorandum of understanding, having been agreed by the Prime Minister and the ISC, can be altered and replaced by agreement at any time. Since it is a working document that can move on and be altered and agreed by the two parties, it would not be appropriate to constantly put it back to both Houses of Parliament for debate and agreement. That is not the position with other memorandums of understanding. Normally there is no parliamentary approval process. That is why I mentioned that this had been to the Lords Delegated Powers Scrutiny Committee, which, as far as I know, is perfectly happy with the process.
Lord Campbell-Savours
I will not delay the Committee. I am grateful to the noble Lord, Lord King, who clearly understands exactly what is being said—namely, that Parliament will be denied the right to approve the memorandum of understanding. I am sorry that I did not see a copy of the letter that the noble Baroness, Lady Hamwee, was fortunate to receive. It may have truncated my comments during debate on a number of amendments this evening. However, I suspect that we will have rich pickings in the memorandum and that we will come back to it on Report. I beg leave to withdraw the amendment.