Grand Committee
The Deputy Chairman of Committees (Lord Colwyn)
My Lords, welcome to the Grand Committee. We have a minor water leak in the corner so if Mr Evans appears with a bucket during the opening speech, that is what it is all about. Now we have the usual housekeeping: if there is a Division in the House, the Committee will adjourn for 10 minutes.
Somalia: Piracy (EUC Report)
(11 years, 2 months ago)
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Lord Teverson
That the Grand Committee takes note of the Report of the European Union Committee on Turning the Tide on Piracy, Building Somalia’s future: Follow-up report on the EU’s Operation Atalanta and beyond (3rd Report, HL Paper 43).
Lord Teverson
My Lords, we have a bucket filling up with water and this debate is all about turning the tide. I do not know whether it will also solve the leak problems here in Grand Committee.
It is not often that a committee looks at a subject comprehensively, as we did in 2010, and then decides to revisit it two years later because it feels it of sufficient importance that a number of lessons needed to be learnt and to see how an operation has moved forward. This is what we did with regard to Operation Atalanta and the other problems regarding Somalia.
I shall remind the Committee of the reasons for Operation Atalanta to begin with. It was not just about commercial shipping, which we most know it for. It was about protecting the World Food Programme, which was keeping vast numbers of people alive and away from starvation in Somalia itself, and getting that product to the port of Mogadishu was quite a challenge. It was also technically about protecting Somalia’s fisheries and has actually been pretty successful at that, but not of any great help to the Somalis. It was also about helping the commercial shipping side in terms of repulsing piracy on one of the world’s most important trade routes. Atalanta itself is one of three organised operations; Atalanta is the European Union one and there is NATO’s Ocean Shield, while Combined Task Force 151 is a coalition of other countries. There are also a number of independent operators as well, which we will come back to.
I shall set the scene by coming back to the 2010 report, in which we made a number of specific observations and recommendations. We had the World Food Programme leasing ships that were probably the slowest that ploughed the oceans anywhere on the globe. Why? Because they were the cheapest. However, that meant they were the most vulnerable and, because of the way that the charter agreement was, they did not allow military contingents on those vessels so they had to be shadowed by very expensive and scarce warships from the areas of issue right the way through to port. There was a lack of tanker refuelling, which meant that the best naval vessels had to go backwards and forwards to port in order to refuel, wasting a lot of time. If pirates were captured, there was often nowhere to send them or try them, because western navies were reluctant to bring those pirates back to their own shores. The insurance companies seemed to be oblivious to the problem or not to care about it. As far as they were concerned, it was a loss, they got their income and there was an occasional “hit” in terms of ransoms that had to be paid out, but there was no responsibility on the part of the insurance industry.
The Indian Ocean and the Gulf are a vast ocean, yet there is very little air surveillance. In fact, Luxembourg had to rent a private plane on behalf of Atalanta, which was used as surveillance out of the Seychelles, and that was about all there was to begin with. There was an undisciplined merchant fleet, which is still a problem to some degree, and many masters did not pay attention to the convoy systems or the various other ways of repulsing or at least putting off piracy attention. We also encountered the issue that the European Union and NATO seemed not to be managing to get on very well operationally, as always.
What was the result of that? In 2010 there were 174 attacks and 47 pirated ships. More than that, however, through this effort we managed to displace this problem from the Gulf right out to the Indian Ocean as a whole, so it became a far more difficult problem. Somali piracy, which is part of the private sector and private entrepreneurship to a large degree, found new ways of modifying the model through mother ships and all sorts of other ways, so that it could be more successful over that broader area. That brought major economic issues—we often forget this—to those littoral states in east Africa, whether it be Somalia itself, Tanzania, Kenya or the Seychelles. Because people feared to transit those waters or go to port in those areas, there were direct economic consequences. Tourism was also affected. The one area that did benefit, I am told, is the fisheries stocks. No one dared go there, so the fisheries did well. Unfortunately, the Somalis themselves probably did not benefit much from that.
What is the situation now? In 2012 the attacks decreased from 174—in 2010—to 36; instead of 47 pirated ships in 2010, we only had five. In 2013 so far—these are early days, admittedly—there have been only two attacks and no pirated vessels whatever. During that whole time, the World Food Programme has not suffered one loss. So, in some ways, the prime reason for Atalanta has been successful.
Why has this happened? My colleagues and fellow noble Lords will no doubt go through this. However, the reasons include very strong international co-operation, not just between those three forces but also between independent nations. This includes China, which for the first time has operated outside its regional area; India, Russia and even Iran—although that is one country where the co-operation has not been so great. The international effort has led to success. There has also been real practical working at sea, even at a practical level between the European Union and NATO, which must be a first. Merchant fleet behaviour has become much better through the work of Northwood. Surveillance and intelligence using the Seychelles as a base has worked well; air surveillance has been far more effective and consistent; and intelligence has been shared.
The committee also recognised that there has been a more robust approach. We are regularly reminded that this is a constabulary operation, not a military one, and that the use of force therefore has to be proportionate and used carefully. However, we generally regarded the raid on the coast as a successful instance of putting down a marker to show that the European Union force was serious in terms of its intent regarding pirate bases. Also, armed guards are now allowed on most of the merchant fleet. Our own committee was against this originally but we have changed our mind on that. However, I would be interested to hear the Government’s view on how the programme has worked. Perhaps most significant of all, in his evidence to us Alexander Rondos, the EU special representative, described Somalia and its cities as having bustle and growth, although he saw it as an economy without a state.
What are the lessons we learnt? The obvious ones are that there is disorder where there are weak states and where the rule of law does not go to the borders; and that regardless of whether that is due to religious militancy or, as here, private sector entrepreneurship, it is very bad for nationals and for the international community. We have seen a different sort of piracy in west Africa as well and we will need to tackle that over time, too. We also know that it is good to have a comprehensive policy. We now have a much more comprehensive one in terms of the European Union’s Horn of Africa policy in Atalanta, the EU trading mission for Somali troops and increasing the coastal capabilities of all those states through the EUCAP NESTOR operation. We felt that the Gulf states should be more involved, but we know that until we solve problems onshore in Somalia, those operations will have to remain.
I congratulate a number of actors on their work, the Seychelles in particular. The Foreign Ministry of the Seychelles came and gave us evidence. It worked strongly and very responsibly with the community. At Northwood, we saw a most professional operation which was hugely international in its scope. We felt great confidence in it and it has clearly been a major part of success. However, I commend perhaps most of all the international co-operation between all those forces; for example, between the UK and France—one of the French warships, FS “Surcouf”, has a UK Lynx helicopter on it. I also commend the Seychelles, Kenya and Mauritius on the trial and imprisonment of pirates. However, I remind my fellow Members of this House that four vessels are still being held; that is, 108 human beings are still being held as hostages in those conditions. We have a ready business model that can be used elsewhere in the world. I believe also that we have failed to see the needs and the hopes of the Somali people in judging this operation. Perhaps looking inland, as well as out to sea, is something that we need to learn from this otherwise successful operation. I beg to move.
Lord Jopling
My Lords, I want to begin with a complaint. I find it absolutely intolerable that a committee such as ours sits for a number of weeks or months, takes evidence and brings a lot of people kindly to give evidence before us; we produce a report in August; the Government respond shortly afterwards; but we cannot find time for the House to debate it until the following March. I find this quite intolerable. We have a government Whip who is kind enough to be with us—it is nothing to do with him—and I hope that he will pass on to the usual channels and those who organise our business that we really must treat Select Committee reports in a better way than this. I find it very unsatisfactory indeed. I say no more about it.
I should like, secondly, to express a number of thanks. I thank the noble Lord, Lord Teverson, who has been chairman of this sub-committee, ably supported by the staff who help us enormously—I thank all of them.
The next thing I want to do is to welcome the reduction in incidents of Somali piracy during the past year or so. This is a very significant fall and reflects great credit on the various military and naval forces which have helped to bring it about. I suppose that it has been helped particularly by the fact, referred to by the noble Lord, that a great number of merchant ships now have armed guards on them. We heard evidence that this has had a salutary effect on potential pirates, who find that there is a certain amount of fire directed towards them when they start attempting to board merchant ships.
As the chairman said, the committee changed its mind over this matter. In the earlier report, I think that a number of us were a little anxious lest we moved into a situation where oil tankers with a huge amount of inflammable material aboard started being attacked by rockets fired by pirates. There is a danger that, over months, as a response to armed guards on ships, the pirates might start using much more lethal weaponry which could lead to a major attack on a ship causing it to catch fire. So far, however, having armed guards has been a big success.
The chairman did briefly refer to another success—that 1,000,000 tonnes of food has been brought into Somalia under the World Food Programme. This is a wonderful record in an area where there is a great deal of belligerence. Many people would say that they did not deserve it, but of course starving people always deserve it and we should salute those who have taken in this 1,000,000 tonnes of food under considerable difficulty.
Another salutary episode which has helped to reduce the number of incidents was the single land attack on one of the harbours used by the pirates. I am glad that Admiral Potts said that we would do it again. There has been a certain amount of criticism about attacking a land target but it was quite right to do it and I think the committee agreed with that. When we went to Northwood I suggested that it would be a good idea to have another one just to show that it was not a one-off. I may sound rather belligerent but it did have an enormous salutary effect and another attack should not be ruled out.
When the Minister responds, I hope he will speak about the political progress that has been made in Somalia itself. From our committee’s report and from the comments of virtually everyone who has spoken about the crisis in Somalia and in the seas around it has been agreed that, on the ground, the long-term solution is a political one. This is very important and I hope the Minister will talk about it.
I am very disturbed indeed to hear that the newly elected president has decided to release 959 pirates by way of amnesty. Again, I hope the Minister will explain this because, from the brief I looked at which said that the president had given an amnesty to 959 pirates, I am not sure whether they were convicted, or that they were held and awaiting trial, or that they were known to be pirates to the civil authorities, such as they are in Somalia. I am interested to know quite what the basis of this amnesty is. We are told that the amnesty does not extend to what I would call the godfathers—the evil plotters who have been organising these attacks and who have been receiving vast amounts of money in ransoms. I am glad to know that the godfathers have not had amnesties but it would be helpful to know about it.
I turn now to the future. It seems to me that those 959 pirates who have received an amnesty are now free to get up to their monkey tricks again. The godfathers are presumably still there, ready to organise such things. Again, I hope the Minister will talk to us about the future. As the number of attacks has been so significantly reduced, there will be a temptation on the part of NATO, the Americans, the European Union and others who have been involved to say, “Oh well, it is much less now—we can relax our presence”. I am sure that there will be political pressure, particularly given the pressure on all the militaries around the world, to say that they are going to reduce the military and naval presence there. Having done so, however, there is a danger—because the pirates have received an amnesty and the godfathers are still there—that it will all start up again using the assets which have been used previously. I hope that the Minister will speak about this.
Another matter which I very much hope the Minister will speak about—I will try to fill in for a moment until the Minister has got his brief; I quite understand that one has to do that—is the fact that we said in our report that it was important to enthuse the Gulf states about attacking the pirates and causing the incidents to be reduced. Quite honestly, however, the Government’s response to our suggestion that the Gulf states should be encouraged to take a much more active part was pretty wishy-washy. I will not read aloud the Government’s response but they gave us four answers to that: we have a headquarters in Bahrain; there are port facilities in Oman; there is co-operation in Dubai; and a whole lot of countries came to a conference in London. With great respect, that is not at all what we meant. These Gulf countries are earning monumental amounts of money for their hydrocarbon exports. As far as I know, their physical assistance in all of this is not as great as it might be. I hope the Minister will look into this and say whether a much more positive approach can be made to our suggestion, in paragraph 87 of our report, to get those states much more actively involved.
Finally, I was concerned that we were told during the inquiry that quite a few convicted pirates were going to be returned to Somalia from Kenya, the Seychelles and other places. It seemed to some of us that to send them back to prisons in Somalia was not very clever because one could not be sure of the security around those prisons. We were told that the United Nations was building a prison and that it would be properly supervised. Given that 959 pirates have received an amnesty, does that mean that the United Nations prison will be redundant and not used? I do not know who these 959 pirates who have received an amnesty are, but it seems to me rather a strange decision that the prisons within Somalia are secure enough to hold convicted pirates. It would seem to me to need a great deal of expert outside supervision to ensure that those prisoners could not be freed. I look forward to hearing what the Minister has to say.
Lord Davies of Stamford
My Lords, it is a pleasure to follow the noble Lord, Lord Jopling, and I think I agree with everything that he said on this subject. I learnt from him—no doubt there is something wrong with the way that I get information on these kind of incidents but I had not heard about it—about the 950 pirates being amnestied by the Government of Somalia. I totally share his anxiety, indeed his horror, at that news and put it to the Government that it should have consequences. Unless there was consultation with the EU in advance of that decision being made by the Somali President then consequences really ought to flow, because it is quite inconsistent with the kind of collaboration and mutual confidence which one had understood had been developed over the past few months between the EU on the one side and the Somali Government on the other. The consequences should be in terms of aid or other forms of support which will be felt, in measured degree, by the Government of Somalia. If we just allow this incident to go uncommented on and unsanctioned, we shall be encouraging similarly bad behaviour in the future and shall lose that sense that we need to act as a team and keep in close co-operation with the Somali Government—we need to consult them about things but they need to consult us as well, and we expect their support. The cost of capturing these pirates is very considerable and the idea that they should be released in this way is quite horrific.
I will make three points, two of which will be approving—indeed congratulatory—points about the report and one of which will be more hortatory, or perhaps slightly critical. First, although there are other very good examples which I will not mention but which we all have had before our eyes, this seems to be an extraordinarily and particularly good example of the success of the European common foreign and security policy. We have managed to make considerable progress—the figures have already been mentioned—in dealing with this great threat and have managed to do so with tremendous leverage in the case of this country. We have almost not contributed any military units at all. We have contributed one of Her Majesty’s ships, a Royal Naval vessel, for a few months and of course contributed very importantly by providing command and control and logistical management of the exercise from PJHQ. We have obviously done an extremely good job there, and I add my own words to the words of congratulation that have already been spoken. I am of course very familiar with PJHQ—it is a wonderful body and a superb organisation, and it is not surprising to me that it has done such a good job. On top of that contribution, we have got all these vessels together. It would have been nice to have even more resources but we have contributed very considerable resources. It is an example of the leverage that can be generated by the common foreign and security policy and of the success that we can have.
Eurosceptics tend to say that we do not need an explicit EU policy and that we can just have a series of ad hoc coalitions where a lot of countries agree in their assessment of the problem and are prepared to do something about it. That is a very inadequate answer indeed. If you do not have a common foreign and security policy, you do not have the mechanisms and the tried and tested procedures there for, first, evaluating the threat, which is very important, and then for managing the response. You do not have the long-standing commitment and sense of solidarity; everybody just starts off saying, “Is it really in our national interest to do this? Do we really want to do it? How much will we be compensated by allies if we do it?”. You have to start afresh again, negotiating all these things from scratch, and every operation has the weaknesses and dangers of an experiment rather than being an ongoing, tried and tested policy where people have the confidence, know the procedures will work, and are familiar and happy with the decision-making process. This is a very good example of how we need a common foreign and security policy. I do not know that the Government are particularly interested in my contribution to their balance of competences review—they would probably dismiss me as a Europhile and anyway a member of the Labour Party, and so would not be interested in what I say—but I hope that the point gets included in the evaluation of the balance of competences review when it comes to the European common foreign and security policy. In fact, it would be monstrous if this was not taken into account as one of the examples of the success of that policy.
The second point I wanted to make, which is again very much approving, is to congratulate the committee on having been pragmatic enough to review its original position on two matters. One was the attack on the pirates’ land bases and the second was on having armed guards on ships passing through the pirate zone. The committee reviewed its original position in the light of evidence and experience and came up with absolutely the right policy solution. It strongly supports—as do I—the initiative taken to deal with some of the land bases. I agree with the noble Lord, Lord Jopling, that it may be necessary to take further action. If it is, I hope that the authorities concerned will be encouraged to do so.
Equally, armed guards have proved their worth. It is not necessary to carry heavy armament for this purpose: a couple of general-purpose machine-guns, one on the port side and one on the starboard, will be enough effectively to deter the sort of pirates with whom we are dealing in the Indian Ocean. The committee was very good on that. It did not just come up with an initial response but looked carefully at the developing situation, and its report is the stronger for it.
On my third point, about ransom payments, I take issue with the committee. I have spoken on this in the Chamber, so noble Lords may be familiar with my views, which have not changed. The committee’s recommendation comes in paragraph 51 on page 18, which states:
“We reiterate our previous conclusion in our 2009 report that those involved in assembling ransoms in the United Kingdom have a duty to seek consent for its payment and that not to do so, if necessary by filing a Suspicious Activity Report, may result in the commission of a criminal offence. We request that the Government now respond substantively to this recommendation”.
This is woefully inadequate and thoroughly pusillanimous. It does not even begin to address the reality of the situation, which is that these are criminal payments. They are rewards to criminals for criminal activity that endangers life.
They are also very substantial—not that that makes a difference to the principle—and run into tens of millions of dollars on a regular basis. It has become something of an industry and is now a regular feature of the insurance market in London. Lloyd’s makes ransom payments that are transported by all sorts of dramatic means to the pirates in Somalia. This is simply not a situation about which we as legislators should be complacent. It is quite clear that these are criminal offences. They are payments to criminals for criminal purposes and they should be illegal. It should not be a question of reporting the matter through a suspicious activity report. The payments should be seized by the Serious Fraud Office or whichever arm of the police is responsible for monitoring illegal payments of this kind, and we should make sure, if the law is not robust enough to deal with the matter in this way and does not make it a criminal offence to make ransom payments to terrorists, pirates or any other form of criminal, that we change the law to make sure that it does exactly that.
I am very disappointed and very sorry that the committee did not come to that conclusion. It does not explain why it did not, and in its report did not even examine the suggestion that I am making—unless I missed it, and I hope I did not. I would be very interested during the rest of the debate to hear from Members of the Committee about why they feel that the present legal situation is adequate, and why a suspicious activity report is the furthest they envisage going in dealing with this matter—which after all, if it is not dealt with effectively both by the physical measures about which we have been talking and by measures controlling flows in the financial markets, will become a criminal industry affecting commerce throughout the world.
Lord Jay of Ewelme
My Lords, I, too, greatly welcome the opportunity to discuss this report by Sub-Committee C. As I am about to be rotated—perhaps in this context I should say helicoptered—off the committee, perhaps I may also pay tribute to the stewardship of the committee by the noble Lord, Lord Teverson. I say “stewardship” because I am not sure that Liberal Democrats accept the concept of chairmanship. I also welcome the chance to comment—as did the noble Lord, Lord Davies—on a European Union activity that is working well, and to which the UK has made an important and perhaps even determining contribution. I will come back to that general point at the end of my speech.
I welcome, too, the way in which the effectiveness of Operation Atalanta today draws on the lessons from its own operations at the start. I think that there is a lesson here perhaps for other European Union operations and policies too—that there needs to be a constant rethinking in the light of experience. The first example which strikes me in particular is the stronger co-operation between Atalanta and NATO and others including India and China. I think that the way in which this has become a much more international anti-piracy operation is very impressive. The second example is the inclusion of security teams on board ships. The committee did indeed have reservations about this at first but, in the light of experience, it, too, changed its mind. It is clear that having security operations on board has proved itself in the past couple of years or so. Finally, as the noble Lord, Lord Teverson, pointed out, persuading the World Food Programme to provide larger and quicker ships to reduce their vulnerability to piracy, which has had a very marked effect on the ability of the programme to deliver food to populations in Somalia and elsewhere who really need it, is something which I greatly welcome, too. However, I welcome in particular the realisation that piracy is largely the result of chaos and instability within Somalia, which has effectively for the past 20 years or so, with a slight improvement recently, been a failed state.
We need to see Atalanta as part of a broader EU approach to the Horn of Africa, not just an operation in its own right. The Horn of Africa strategy adopted at the end of 2011, including the training mission in Uganda for Somali security sector training and the mission to strengthen coastal defence capabilities through the region—the horribly named EUCAP NESTOR—have not only been very worth while but add up to an overall approach by the EU to the Horn of Africa that is admirable. At the same time, it is encouraging that some economic and political stability is emerging at least in and around Mogadishu and that the influence of al-Shabaab is at least for now—and let us hope for longer than now—on the decline. Ensuring that that continues must be the main aim of EU and our own policy from now on. This should largely be an African task, not just an EU or western task, although it is very hard to see how EU and western help will not be necessary in the foreseeable future.
It seems to me that the African Union will have a key role to play here. It has huge challenges at present, and it has weaknesses, but it is far more effective than it has been in the past. I hope that the European Union and the UK will continue to do what they can to strengthen it. It would be very helpful if the Minister could say something about that.
At the same time the EU must focus its development on capacity building in Somalia. I declare an interest here as the chair of a medical aid charity, Merlin, which operates in Somaliland, Puntland and Somalia itself. Britain, like the EU, has an important role to play in helping with education and medical aid both through its own funds and through the help that it gives to non-governmental organisations.
I should like to branch out just slightly from Somalia and look at two other African issues that have arisen since our report was produced—as the noble Lord, Lord Jopling, said—some months ago. The first is Mali and the second is piracy in the Gulf of Guinea. Sub-Committee C has expressed great concern about the destabilisation of Mali and the impact that that could have on Britain and on wider European interests since the break-up of the country two years ago. The attack on the oil refinery in southern Algeria and the recently—alas—proven murder of hostages, including a British hostage in northern Nigeria, show only too clearly how developments apparently remote from us can affect us and damage us directly.
I would not accept the argument that these attacks are the result of western action. We have a role to play in supporting west African countries in countering al-Qaeda, Boko Haram and other terrorist groups, but I do not underestimate the difficulties in doing it. I greatly welcome the help that we are giving the French in what could still be a long and unpredictable campaign in Mali. I believe that our contribution there really matters and is important.
More related perhaps to the debate on Somali piracy is the growth of piracy in west Africa, in the Gulf of Guinea. In some ways this seems to be of a different kind of piracy from that in Somalia, including attacks in port—for example, in Abidjan in the Ivory Coast—and it is centred more on stealing cargo for money than on kidnapping ships and crews for ransom. The effect of piracy in west Africa can be particularly dramatic on fragile economies, increasing insurance rates but, much more than that, reducing revenue—by up to 70% in the case of Cotonou, the only port in Benin. That has had a pretty dramatic impact on the state of a fragile economy.
From the recent Parliamentary Statement in another place by the Foreign Office Minister, Alistair Burt, I am glad to see that the Government are taking the growth of west African piracy seriously. I am also glad that the Royal Navy is deploying at least one ship in the Gulf of Guinea and is working closely there with the French. When the Minister responds could he say whether that deployment has been stepped up in the light of the growth of piracy in the Gulf of Guinea?
I would make one final point in drawing some of these threads together. We see a mixture of piracy, conflict and terrorism in Somalia, Mali and the Gulf of Guinea—all of these seem a long way off but this can affect our interests directly. As a nation with global interests and, as a member of the UN Security Council, of NATO and of the European Union, with global responsibilities too, we cannot stand aside from nor ignore instability of this sort. Nor, given budgetary pressures of which I am sure the Minister is only too aware, can we respond to them on our own. We also need to recognise that political influence, development and military intervention where necessary need to be looked at together—as has been the case in Somalia—and not as separate activities. As we have seen in Somalia, the European Union is uniquely able to do this, by bringing together actions through its defence policy and its common foreign and security policy. All those are important for the African countries themselves, for the EU and, I would argue, for Britain as well. None of those policies is perfect; all would be better with the full engagement of the United Kingdom, and British interests would be well served too. In the context of common foreign and security policy and of bringing together policies in Somalia, that argument is relevant to our policy towards the European Union in a wider sense where critical, constructive engagement can be in our interests and can make a real difference to the policies of the European Union itself.
Lord Radice
I agree very much with what the noble Lord, Lord Jay, has just said. I would like to congratulate the chairman, my colleagues and the staff on what is an excellent report. It is a tribute to the chairmanship of the noble Lord, Lord Teverson, and I would like to pay him a general tribute as he is stepping down. He has been an excellent chairman of this committee and we have produced a number of very good reports in recent years.
I turn to the report. Operation Atalanta has been a success, as has the EU’s foreign policy—there is no question about that. This is due partly to the efficiency of the operation under UK leadership, which I hope people will focus on. We saw that leadership in operation at the command and control centre at Northwood, which we visited as a committee and very much admired. It is an amazing place and it was quite spectacular to see it in operation. Of course there has also been the co-operation with the other international organisations: the US-led combined maritime force; the NATO-led Operation Ocean Shield; and with other countries such as Russia, China and India. All that has obviously been very helpful, too.
Then, of course, we have the game-changer of putting armed guards on ships, which has been backed by a regulatory system that is becoming increasingly effective. As colleagues have noted, the committee changed its mind on this. The facts changed and so we changed our minds—that is a sensible thing for a committee to do. The truth is that having armed guards on ships has proved a highly effective deterrent. So far, no ships carrying armed guards have been successfully pirated. That in itself speaks for that idea.
I should also mention the building-up of a judicial system to deal with culprits. There are 101 in prison in the Seychelles and 147 in Kenya. I hope we are going to hear something from the Minister about this. I am not saying that he is responsible for what the Somali President has done, but it is important. It ostensibly drives a coach and four through the whole policy. If the Somali President comes along and gives amnesty to 959 pirates, what are we to say about the rest of them in prison elsewhere? This will clearly have to be looked at rather more carefully.
The most important point in the report is that the mandate of the operation should be extended beyond December 2014. That is an important signal that the EU and the international community are not going to walk away from their obligations to clear the Indian Ocean and the Gulf of Aden of piracy. Interestingly, there was a meeting of the European Economic and Social Committee on 24 January, attended by the shipping industry and seafarers generally. They very much endorsed the position in our report. The noble Lord, Lord Jay, made strongly the point about the importance of attending to the political development in Somalia and of getting rid of the conditions in which piracy can flourish.
Our report also strongly supports the Horn of Africa strategy: the combination of diplomatic, financial and operational tools which provides some opportunity for a sensible and coherent response to all the awful crises facing the region. Alongside Atalanta, you now have NESTOR—the EU’s training mission for Somali security forces—as well as the appointment of the special representative for the Horn of Africa, which we welcome in our report.
Like the noble Lord, Lord Jay, I turn to the west African issue. The trouble with piracy, particularly if it is successful, is that it is very infectious. Although the background is different, Somali piracy is increasingly mirrored in what is happening in west Africa. Armed hijacking is on the rise in the Gulf of Guinea, the waters of Nigeria, Benin, Togo and Ivory Coast. It is interesting that many of these incidents involve vessels transporting petroleum products. The UN Office on Drugs and Crime explains this by the booming black market for fuel in west Africa. Clearly, this is a rather sinister situation growing up here and it needs watching very carefully indeed. It is essential that there should be a response not only by the region’s Governments but by the international community so that west African seas do not become as dangerous as the Indian Ocean has been, but—fortunately—now is not.
I want to ask the Minister several questions. What are the UK Government and the EU doing to meet the threat? Can the Minister—I share the point made by the noble Lord, Lord Jay, here—confirm that the Royal Navy is deploying units to west Africa and working in conjunction with France and the United States? Is there a case for applying some of the lessons that have been learnt in Somalia and the Indian Ocean in west African waters? Can the strategy and models that have been used successfully in this area be used also in west Africa? I know that it is a different situation but we ought to learn some lessons.
As a last point, we must not forget the cost of piracy. At the European Economic and Social Committee meeting which I was referring to, Dr Anna Bredima, who is vice-president of the Employers’ Group, said that piracy costs the global economy $12 billion a year. She went on to say:
“Piracy is not only a maritime problem. It is also a humanitarian, trade and global one, affecting consumers and taxpayers around the world”.
I also saw in a paper for Nautilus International, the seafarers’ organisation, a rather graphic description, drawn from the Times of India, of 23 crew members who were taken hostage from the cargo ship “Iceberg”—this is the human cost—and held for three years by Somali pirates. One died of malnutrition, and the Times of India told how the rest spent,
“four months next to a freezer with a body inside”,
and how officers were,
“hung upside down and tortured and the ears of a senior officer [were] … chopped off”,
for failing to move the ship. Pirates would beat or whip crew members if aircraft passed overhead. It is not surprising that these men are haunted by such memories. It serves as a reminder to us when we write our reports of why the pirates have to be fought, pursued and prosecuted.
Baroness Young of Hornsey
My Lords, I joined Sub-Committee C, on external affairs, just in time to see the Turning the Tide report through to its conclusion, although I missed direct involvement in the original inquiry that preceded it. This was my first inquiry with Sub-Committee C and, along with other noble Lords, I thank the noble Lord, Lord Teverson, for his chairmanship, and also note the expertise of the staff and the warm welcome offered by noble Lords who were already on the committee.
Before I joined Sub-Committee C I was, along with many others, all too aware of Somalia’s recent troubled history and in particular its notoriety as the launching pad for numerous acts of piracy in the Indian Ocean. I therefore welcome the opportunity today to address some of the issues raised by the report. I should say from the outset that I agree with many of the points that have already been made by other noble Lords on the committee but want to go into some other areas.
Naval patrols, armed personnel on vulnerable ships and the military operation on land-based criminals have all, as we have heard, contributed to diminishing the threat of piracy in the region. However, none of these activities represents a viable, or indeed a desirable, medium to long-term strategy. Political, economic and social stabilisation is the key to reducing piracy and other high-stakes criminal activity. If the root causes are not addressed, such crimes will continue to flourish.
As we reported, the EU has now formulated a strategy for the Horn of Africa and appointed a special representative, Alexander Rondos, who has already been referred to. It has also launched two missions: a training mission to Uganda—EUTM Somalia; and, crucially, the newish mission to strengthen the maritime capacity of the coastal states of east Africa—EUCAP NESTOR. As my noble friend Lord Jay said, that is not a very pleasant sounding title, but none the less we hope that it will be effective.
Alexander Rondos told us of the need to build up coastal communities if piracy was to be countered. He believed that extending stabilisation and investing in coastal areas was essential and absolutely key in offering an alternative incentive to those who feel that they need to tolerate piracy or allow it to operate from within their communities. The evidence from the Council of Somali Organisations supported this assertion and made the additional point that coastal communities had,
“persistently lobbied donors for small scale support to help them develop local mobile marine cadres”,
to patrol their coastline and provide a security presence that would disrupt and deter pirate groups and al-Shabaab activity.
To counter the argument that the EU presence represents yet another hostile foreign military force, as some see it, the EU needs to make a commitment to protect and monitor fishing in Somali waters. There has been a call for the mandates to be revised to protect Somali waters from illegal fishermen and those who transport toxic and other dangerous materials. When we received the evidence, we considered recommending that Operation Atalanta should undertake greater protection of Somali fishing grounds, but we concluded that a naval mission was not in a position to undertake this additional role as well as protecting shipping, and that the task should be taken up by another organisation.
To some extent, the newly established civilian mission EUCAP NESTOR goes part of the way towards addressing some of the concerns. The mission aims to train a coastal police force and judges with expert advice on legal, policy and operational matters concerning maritime security. Giving more resources and support to the countries of the region to build capacity would make further improvements and ultimately cost the EU less in the longer term. The FCO told us that the setting-up phase of EUCAP NESTOR was going well. I hope that the Minister will be able to tell us that the initiative is on track.
The focus on a military solution to Somalia-based piracy, and conventional approaches to aid and development, should not prevent the EU addressing real concerns about fishing and the historic dumping of toxic waste by multinational organisations. A recent Italian investigation concluded that around 35 million tonnes of waste had been exported to Somalia, leading to the assertion that its inland waste dumps were among the largest in the world.
The Somali people have been caught up in a dreadful vicious circle. With the likelihood that the country will achieve just one of the eight millennium development goals by 2015, weak governance structures at all levels, an underdeveloped civil society, the constant threat of armed conflict within and between clans and extensive corruption, it is no wonder that some companies feel able to take advantage of the situation and act with impunity, dumping nuclear and other hazardous waste in Somali coastal waters.
I emphasise that this is not put forward as an excuse for piracy—not in any way. However, the issue must be addressed if the EU is to maintain confidence in what it is doing. European multinationals, the Somali Government and local clan warlords have all been implicated in these activities. Arms have been traded for the right to dump hazardous materials. The ships bringing the cargo into Somalia then become trawlers when they leave the area, with their holds full of tuna fish. These illegal activities must be robustly monitored and the consequences addressed if there is to be a long-term solution to piracy in the region.
Recently, pirate gangs have turned to land-based criminal activity such as kidnapping aid workers, tourists and journalists in Somalia and Kenya and holding them for ransom. That is why military interventions need to take place alongside strategic local and regional political initiatives supported by international collaboration. As the noble Lord, Lord Jay, said, the involvement of organisations such as the African Union and ECOWAS is crucial to that operation.
In Somaliland, which is relatively stable, unemployment among young people stands at approximately 75%. One strategy to help keep young people from the grasp of criminal gangs would be to capitalise on the influx of foreign aid agencies and other NGOs into the area by ensuring that these organisations provide opportunities for local young people to learn skills, undertake internships and gain paid work. EU development aid should also be directed towards providing alternative livelihoods for the Somali people. Somehow, as the noble Lord, Lord Teverson, mentioned at the beginning, the vast majority of the Somali population are not involved in these criminal activities yet they seem to get punished whichever way things go.
As the Africa Research Institute points out, the EU needs to demonstrate its willingness to address the issue of European-owned companies that have been dumping toxic waste off the Somali coast for years. Robust action on this matter would help to underline the legitimacy of the EU endeavours in the region. I wonder if the Minister, or indeed the Government, has a view on this matter.
There are some positive signs emerging from Somalia, some of which have already been referred to. We heard from witnesses that there was less hostility from the Somali population to the African Union’s mission in Somalia, a greater spirit of optimism and more talk of nation building. The EUCAP NESTOR mission will be a significant development in combating piracy from the land.
What happens over the next few years will be crucial to the settled future of the Somalian peoples. I very much hope that the sub-committee will somehow find a way to revisit these issues and have another follow-up report at some point in the future.
The Earl of Sandwich
My Lords, I congratulate the noble Lord, Lord Teverson, and the sub-committee on the report. I missed the debate of the noble Lord, Lord Luce, last year, so this is a valuable opportunity for me not just to speak today but to inform myself on an important area of foreign policy. This policy, as the Minister knows very well from his experience of Africa, ties defence priorities closely to those of international development. The unexpected release and safe return of the chemical tanker “Royal Grace” last week brought welcome relief to the operation as well as to those on board. I hope that we shall soon learn the fate of the other tanker MS “Smyrni”. These welcome facts further suggest that Atalanta, while not resting on her laurels, should already be rated as a major success of international co-operation alongside the remarkable military and political turnaround in Somalia itself.
The noble and learned Lord, Lord Howe of Aberavon, said memorably in the last debate that the name Atalanta gave it a NATO benediction. It is true that, provided that there are no golden apples or false rewards, the name implies great rapidity from a defence point of view. It has been a spectacular demonstration of our own naval command and control over the past four years. I am personally enthusiastic about the Navy—perhaps not quite as gung-ho as the noble Lord, Lord Jopling, about a land operation but I think that we have done magnificently. For the EU, as the noble Lord, Lord Davies, has mentioned, it should mean a feather in the cap of the EEAS for its solid support of the operation. It should also get a mention in Sub-Committee C’s new report about to be published.
There are, of course, always dangers ahead. Last December, the Piracy Ransoms Task Force called for greater co-ordination among the countries and agencies involved. I am surprised that the committee has not pronounced more on the question of ransoms. There remains a widespread concern that while the incidence of piracy has come down, the amounts of ransoms are increasing. There are also fears that complacency may set in, armed guards will be reduced and the cycle may begin all over again. The trend of kidnapping in the region, notably in west Africa, has recently been upwards.
As for Somalia itself, the noble Lord, Lord Hannay, said in October that the priority should now be the re-establishment of stability and the rule of law. Nobody could disagree with that. He expressed the hope that the international community,
“will not allow that task to fail through lack of resources and lack of political will”.—[Official Report, 24/10/12; col.280.]
I agree with that aspiration: there is an upward trend of political will but no easy path ahead—as the noble Lord, Lord Jay, has expressed, and the noble Baroness, Lady Young, has already brought home to us.
Somalia is,
“possibly the toughest place in the world to be a child”,
according to the CEO of Save the Children when he returned from that country. The number of people in urgent need of humanitarian aid is expected to exceed 2.1 million in the coming months. The figure is down from last year but it is still large. Again, success is relative. Recurrence of the 2011 famine has been largely averted in rural areas, but there is still an imperative to plant crops and avoid food dependency while encouraging the return of traders and small businesses to towns. Here, I strongly agree with the noble Baroness, Lady Young.
I am glad to say that one of the most effective programmes is the SEED employment programme, funded by the UK, which works alongside the FAO in Puntland and south-central Somalia. It generated 56,000 jobs and has trained nearly 4,000 women and young people in livestock and agriculture. This is exactly the kind of programme that must revive the economy. When extended to coastal areas, it will provide alternatives to piracy, which everyone knows is a side-product of the civil war and of anarchy over the past decades. Employment, small business support and trade should feature prominently at the London conference that will be held on 7 May. Somalia is making a rapid recovery. We in this country are host to many Somali refugees and should be well placed to encourage the return of business leaders and professionals who will help rebuild their communities.
On the rule of law, there are many gaps to be filled, as we all know. I hope that the Minister will bring us up to date with the work of EUCAP NESTOR, notably in Puntland and Somaliland, and tell us whether there has been any progress in setting up the new land-based coastal police force. The committee report states that,
“Nestor could and should be the gateway to a permanent solution”.
The name “Nestor” is familiar to me because it is the name of my grandson, whom I took to see HMS “Belfast” yesterday afternoon. I hope that everyone will see him as a figure of wisdom in the future.
I am not familiar with the intricacies of Somali politics. The noble Lord, Lord Avebury, who came to the previous debate but who unfortunately is not here today, pointed out in October that until last summer the Puntland maritime police force had been very effective in closing bases and arresting pirates. Then it fell foul of other recognised authorities, including the UN, and even of its own South African trainers, one of whom was shot dead. Where food and commodities are scarce, clan loyalty and corruption easily turn into police connivance with the enemy—the pirates. Now that the new federal Government have greater confidence and are earning international recognition, will the Puntland police force be allowed to resume its former effectiveness? What will AMISOM and IGAD contribute to this exercise? Tributes are paid to them in the report. The government response to the committee mentioned training in Uganda but was silent on the calibre of the police forces in Somalia.
Finally, I hope that the Minister will congratulate Kenya and the Seychelles. They have expanded their courts and prisons over the years to accommodate hundreds of detained and convicted pirates. Perhaps he will update us on the attitudes there. In the context of what the noble Lord, Lord Jopling, said, will the Minister say to what extent and on what terms the pirates and prisoners are being returned either to civilian life or to face judgment in Hargeisa prison, which we have helped to rehabilitate, or elsewhere in Somalia?
We must be grateful that greater stability in Somalia will have valuable consequences over the border with Kenya, at a time of uncertainty following elections there. I hope that the world’s largest refugee camp will empty, that refugees will return home and that the acute conditions of poverty, malnutrition and ill health that we have seen so often on our TV screens over the past 20 years will disappear. Whether or not Atalanta is extended, the mission will have played a major role in this—largely, let us admit, for the benefit of the Gulf states and developed countries such as our own. Internal political stability can rarely be guaranteed by outsiders. Ultimately, it must depend on the Somali people themselves.
Lord Rosser
My Lords, I add my thanks to the noble Lord, Lord Teverson, and the European Union Committee for the report that we are considering today, which is a follow-up to the 2010 report on the European Union’s naval operation Atalanta. The noble Lord, Lord Teverson, gave us a comprehensive introduction on the present state of play, the key issues involved and progress made since the previous report. I do not, therefore, intend to refer to all the issues which he so ably addressed and which are referred to in the report.
The report indicates an improving situation as far as the levels of Somali piracy are concerned, with a significant reduction in the number of pirated vessels and hostages in June 2012 compared to June 2011, as well as much greater practical co-operation between organisations and nations. However, the report certainly does not suggest that the problem has been solved. The committee welcomed the EU Atalanta attack on the pirate land base and, in their response, the Government agreed with that. The committee also reported that it had changed its view on having armed guards on ships, in light of the fact that no ship carrying armed guards has been successfully pirated and violence has not apparently escalated.
Evidence was given to the committee, though, that those involved in piracy were increasing their activity on land, including kidnapping on shore, and that the smaller number of successful attacks had led to an increase in the level of ransom demands and greater violence. Indeed, the view appears to be that piracy will never be eliminated except, hopefully, in the longer term and that the realistic objective must be to make sure that it is contained. As a key part of that objective of containment, Operation Atalanta’s mandate was renewed in 2012 until the end of 2014.
I should like to raise a few points of relative detail about the report and the Government’s response. I note that, when the previous report was discussed in this House in November 2010, the response was given by the Foreign Office Minister. Today, the response to the European Union Committee’s follow-up report is being given by the Defence Minister, the noble Lord, Lord Astor of Hever. I am not sure whether the change in department responding to the debate represents any change in the Government’s priorities and approach to the issue of Somali piracy, Somalia and the EU’s Operation Atalanta, or whether it is simply an issue of the availability—or flexibility—of government Ministers. It would be helpful to have that small point clarified.
Paragraph 26 of the report states:
“We were, however, surprised to hear from the Minister that only one Royal Navy ship was allocated to Operation Atalanta for three months in a two year period”.
While the committee was surprised to hear this, it was not concerned, unlike the Chamber of Shipping, as the committee felt that there were financial constraints and considered that our command role from Northwood Headquarters was compensation for our limited contribution of vessels.
As the noble Lord, Lord Jopling, said, the committee’s report was completed last summer—over six months ago—and the government response was written last September, so could the Minister tell me whether our allocation of Royal Navy ships to Operation Atalanta remains as indicated in the report and the government response? I ask that also in the light of a recent article in the House magazine about HMS “Westminster” and her crew, which referred, among the other roles that they have, to the proud contribution made,
“to the international naval effort which has seen piracy attacks off the Horn of Africa reduce by 75% in the last 12 months”.
It may be that HMS “Westminster” has been involved in one of the other operations in the area, rather than in Operation Atalanta.
In its report, the committee expressed the view that any reduction in effort would quickly result in a renewed upsurge of pirate activity and that the mandate of Operation Atalanta should be extended beyond December 2014 to send a clear signal that the EU would not walk away from confronting piracy in the Indian Ocean. Rightly or wrongly, I rather took it from that that the committee may not wholeheartedly share the view that a decision on the renewal of the operation’s mandate should wait until the middle of next year, as appears to be the intention. The Government’s response to the report did not specifically address the issue of whether and when the mandate should be renewed, so it would be helpful if the Minister could say whether, on the basis of the situation on piracy as it is at the moment, the Government would or would not support renewal of Operation Atalanta’s mandate.
When the committee’s earlier report was discussed in 2010, there was general agreement that the long-term elimination of piracy would be secured only through addressing the underlying causes of instability affecting Somalia. That clearly remains the view. The committee’s report and the Government’s response set out the developments that have occurred and the steps that have been taken since the earlier report by the EU, the UN and the international community to help to improve the prospects of stability in Somalia. As the Government’s response says, fundamental to the EU’s efforts is the principle of encouraging greater African ownership, including by the African Union.
The committee is to be congratulated on the thoroughness of its work, including the follow-up report, which has highlighted the considerable progress that has been made and the reasons for it. Let us hope that that progress proves to be soundly based and that, despite some of the information that we have been given in the debate today about the release of those involved in piracy, it will ultimately lead not only to the eventual end of piracy but to a safer, more secure and more prosperous future for Somalia and its people in particular and for the region in general.
The Parliamentary Under-Secretary of State, Ministry of Defence (Lord Astor of Hever)
My Lords, I begin by acknowledging the quality of the contributions to this debate. Noble Lords have demonstrated a keen and impressive grasp of this very complicated issue. I praise in particular the excellent work of my noble friend Lord Teverson and the other committee members in compiling the report on Operation Atalanta.
Operation Atalanta has successfully contained, constrained and deterred acts of piracy. None the less, the UK’s longer-term aim is to eradicate the underlying causes of the instability that affects Somalia and gives rise to acts of piracy, and several noble Lords have made that point today. This can be achieved only by addressing the root causes of the problems in Somalia. EUTM Somalia and EUCAP NESTOR, launched as part of the EU’s contribution to an overall strategy for the Horn of Africa, aim to provide a comprehensive solution to Somalia’s problems. In time these missions, alongside AMISOM, will create a secure and stable Somalia, remove the incentives for piracy and develop the capacity of coastal states in the region to police their own coastlines.
The UK remains fully supportive of Operation Atalanta’s mandate and is committed to the continued command of Operation Atalanta from Northwood for the current mandate, which expires in December 2014. International pressure on the pirates must be maintained in order to prevent a significant resurgence of activity. While any formal decision to extend Operation Atalanta’s mandate beyond 2014 is unlikely to be taken in the immediate future, the EU has demonstrated a firm commitment to its counter-piracy efforts, including through enhancing the mandate with agreement on the use of autonomous vessel protection detachments and the disruption of pirate logistics dumps. Additionally, the launch of EUCAP NESTOR and a growing EU diplomatic role send further strong signals of increasing EU engagement.
The degree of maritime co-operation between the three core international counter-piracy forces—the EU’s Operation Atalanta, the US-led Combined Maritime Forces Combined Task Force 151 and NATO’s Operation Ocean Shield—is among the best that we have ever seen. The three operations provide a variety of effective framework opportunities for third-state contributions to anti-piracy efforts to further enhance international co-operation, evidenced recently when Royal Thai naval forces commanded a Combined Maritime Forces task force from a UK vessel. The shared awareness and deconfliction mechanism has also helped to ensure that military efforts in the region are effectively co-ordinated between international partners.
The threat from piracy remains a serious problem, but results and trends suggest that Operation Atalanta, in conjunction with other measures to counter piracy, is proving effective. For example, as of 7 March this year, two vessels and 60 hostages were being held off the Somali coast, the lowest levels held by pirates since September 2009. I hate to correct my noble friend but two vessels and 48 hostages were released over the weekend, so the figures that I have quoted are the accurate ones. This compares favourably with May 2011, when 23 ships and 503 hostages were held. Attacks and pirating of vessels are down by over 75% during the past 12 months. However, I emphasise that these gains remain reversible and it is vital that we do not relieve any of the considerable pressure that is currently being brought to bear on the Somali pirates.
The ability to prosecute and detain convicted pirates is an important element of our strategy to combat piracy and is an effective deterrent. Over 1,200 suspects or convicted pirates are being held in 21 states across the world. The Seychelles currently holds 101, representing some 20% of its prison population, while Kenya holds 147. We continue to support regional partners in developing local prosecutorial capacity.
Capacity-building assistance is being provided to the Seychellois justice sector by the international community. For example, the UK has provided funding to the UN Office on Drugs and Crime for the work of its counter-piracy programme, which has included work with Montagne Posée prison in the Seychelles. A new 60-cell block was opened there in September 2011 to help with the detention of suspected and convicted pirates. The UK has provided assistance to the Attorney-General’s Office by seconding two prosecutors from the Crown Prosecution Service to assist with the prosecution of suspected pirates.
A longer-term solution to develop Somali capability and ownership of the piracy problem is being implemented by the UNODC’s post-trial transfer programme, which returns pirates convicted in regional jurisdictions to Somalia to serve out the balance of their sentences. The programme has so far transferred 59 convicted pirates from the Seychelles to Somaliland under the terms of a bilateral memorandum of understanding, the agreement of which was facilitated by the United Kingdom at the London conference on Somalia. Further transfers from the Seychelles are anticipated this year.
I turn to the specific questions asked by noble Lords. The noble Lord, Lord Jopling, asked what political progress had been made in Somalia. Real political progress has been made there in recent months. The transitional period concluded on 10 September with the election of a new president, Hassan Sheikh Mohamud. This was a significant moment in Somalia and an important step towards a renewed political process. The London Conference on Somalia in February 2012 brought the international community together to support this process and, for the first time in years, it was run in consultation with the Somali people through their elders. They led a process to draw up a new constitution and formed a new parliament which elected a new president.
It is clear that, after two decades of conflict and instability, the people of Somalia want to usher in a new era of peace, security and democracy. Recent political progress marks a new chapter in their history. The end of the transition is the best opportunity in years to make progress towards peace and stability. Already, people are rebuilding their properties and businesses; confidence is increasing; and the diaspora is returning.
My noble friend Lord Jopling and the noble Lord, Lord Radice, mentioned the 959 pirates who were released. They asked what was the basis of the amnesty and why did this not apply to the “godfathers”. This amnesty referred to the boys who had committed acts of piracy at sea but did not apply to the financial backers or the senior leaders of the pirate action groups. My noble friend Lord Jopling asked for the Government’s response to the committee’s recommendation for an increased contribution from the Gulf states. We are working closely with a number of the Gulf states, particularly the UAE, Bahrain and Oman, and organisations such as the Organisation of Islamic Cooperation. The UAE has commanded the Combined Maritime Forces Combined Task Force 151 and Bahrain, Oman, Kuwait and the UAE all provide bases for Royal Navy ships. They all share information with coalition forces.
My noble friend Lord Jopling also asked whether, as the number of attacks reduces, there is a temptation to relax our presence there. Military response must remain proportional to the threat until the root causes of piracy have been addressed ashore. This is now occurring via EUCAP NESTOR and other capacity-building initiatives. Meanwhile, Operation Atalanta, NATO and the CTF 151 continue their deterrent patrols which deliver the time and space to allow development activity to take place ashore.
My noble friend asked whether pirates would be returned to Somalia. The committee did not consider this to be sensible given the level of prison security. He asked would the UN prison remain unused. The UN has refurbished a prison in Somaliland which is currently housing convicted pirates returned from the Seychelles. Work is on the way to building additional penal facilities. This is crucial to Somalia’s ongoing development. Building justice and the rule of law is a priority for the new Somali president.
The noble Lord, Lord Davies, pointed out that the example of success on Operation Atalanta should be included as part of the balance of competences review. Operation Atalanta will be part of a case study on common security and defence policy activities in the Horn of Africa. The noble Lord said that the committee’s conclusion in respect of ransom payments was wholly inadequate because these are criminal payments. Companies assembling ransoms in the UK must seek consent from the Serious Organised Crime Agency prior to payment. The Government do not make or facilitate substantive concessions to hostage-takers, including the payment of ransom. I would point out that it is not against UK law to pay piracy ransoms.
Lord Davies of Stamford
On that point, do the Government believe that it is a satisfactory situation that these payments are not illegal?
Lord Astor of Hever
We agree with the noble Lord that it is not a satisfactory situation.
The noble Lord, Lord Jay, asked whether the United Kingdom continued to strengthen the African Union in Somalia. Support through the EU training mission will continue. The UK continues to support AMISOM in Mogadishu, which is the military arm of the AU in Somalia and was critical to the recent successful retaking of Kismayo that forced al-Shabaab out of one of its key strongholds and away from a key source of revenue. I am very grateful to the noble Lord, as a former ambassador to Paris, for his encouraging words on our support to the French over Mali.
The noble Lord also mentioned west African piracy. The situation there is much more maritime criminality than piracy—the theft of cargo, illegal bunkering et cetera—and should not be seen as similar to that in Somalia. As such, it is clearly the role of national police forces to deal with it. The Royal Navy is taking action where it can, predominantly in terms of training and capacity-building: HMS “Dauntless”, HMS “Edinburgh” and HMS “Argyll” have all recently worked in this area. The noble Lord asked what effect the destabilisation of Mali might have on wider UK interests. It would allow ungoverned space from which terrorists could operate, plan and launch attacks with impunity, and could also destabilise other parts of Africa such as Nigeria and Sierra Leone.
The noble Lord, Lord Radice, asked what the United Kingdom and the EU are doing to meet the threat in west Africa, whether the Royal Navy will deploy assets to west Africa and whether we will apply the lessons from Somalia to west Africa. Lessons are being learnt from Somalia and applied to west Africa. The UK is supporting the industry initiative to create a regional maritime trade information-sharing centre. The Royal Navy deployment has helped build capacity aboard vessels and it is helping to train maritime law enforcement officers and develop maritime legal frameworks to prosecute maritime crime. Corruption locally is the biggest threat.
The noble Baroness, Lady Young, and the noble Earl, Lord Sandwich, asked how EUCAP NESTOR is progressing. The answer is: as well as can be expected. Building capacity where none has existed for 20 years is a great challenge. It involves preparing assessments of what is required, identifying key leaders who will have to drive forward development on behalf of the Somali Government and people, working in conjunction with various institution-building initiatives and prioritising where EU funds need to be spent.
The noble Baroness asked what the Government’s view is on dumping toxic waste off the coast of Somalia. Historical reports of toxic dumping in the early days of piracy cannot be denied, but it has reduced significantly owing to the naval presence in the area. Recent reports to the UN Security Council have failed to provide evidence of toxic dumping off the Somali coast. This Government remain committed to working with international partners to tackle all the reasons used to justify committing acts of piracy.
The noble Earl, Lord Sandwich, asked me to congratulate Kenya and the Seychelles on their efforts and asked what the Government’s attitude was towards Operation Atalanta. Regional partners are an essential part of the UK’s counter-piracy strategy. The Seychelles are leading the effort, having recognised the threats from piracy to tourism and their fishing and maritime industries. We commend their continuing efforts and those of Kenya.
The noble Lord, Lord Rosser, asked whether there was a change in the department responsible, as I am responding to this debate, and whether it reflects a change in the Government’s approach to piracy. There is no change in the department. The Ministry of Defence led the written response to this committee, and it is therefore fitting that I attend this debate now. This Government remain committed to countering the threat of piracy in the Indian Ocean and to working with our international partners.
The noble Earl, Lord Sandwich, asked whether the Puntland maritime police force would be allowed to resume its activities. The Puntland maritime police force is a local militia trained by a private security company and it received weapons in breach of the UN sanctions regime in force for Somalia. The decision to employ or allow the activities of the PMPF rests with the new Government of Somalia.
The noble Lord, Lord Rosser, asked whether the Government’s allocation of ships to Atalanta remains as per the report. The answer is yes. We allocate ships on a case-by-case basis, and it may not be the most effective use of ships to allocate them to Atalanta rather than to other coalitions. This is kept under constant review and plans made accordingly. A Royal Navy helicopter is currently assigned to Atalanta, working from a front ship. The noble Lord asked whether, given the current situation, the Government would support extension of Atalanta’s mandate. The EU is beginning a strategic review of Operation Atalanta, and we remain committed to supporting this mission.
The piracy threat cannot be dealt with through military means alone. It will require a sustained international effort that addresses not only the threat from pirates but institutional incapacity. The UK is ultimately seeking greater coherence between EUTM, Atalanta and Op NESTOR within the overall EU Horn of Africa strategy but also with other international and UK unilateral activity. All the symptoms—terrorism, piracy and migration—are a result of the causes of instability in Somalia. EUTM does not currently link directly to the other CSDP missions but rather to the wider EU strategy as part of the comprehensive approach to Somalia. Linking missions with diplomatic and developmental tools should enable the EU to take a lead internationally in seeking to bring stability and governance to the country and wider region.
Lord Teverson
My Lords, I thank my noble friend the Minister for his response and particularly for the good news—I am delighted to be corrected—that we are down to two vessels and 60 hostages. That has to be very good news for the families and the people who are involved. I hope that we can bring those figures down to zero before too long.
When I mentioned World Food Programme vessels coming into Mogadishu, I meant Djibouti. Clearly, they could not go into Mogadishu because it was not under any sensible control.
Perhaps I may respond briefly to what the noble Lord, Lord Davies of Stamford, said about ransoms. We considered this in our first report but not in our second. I recognise that this is a hole in the report. In fact, the bit that was put in was really from another EU Committee report through the noble Lord, Lord Hannay. Perhaps we can look at this further.
Will the Minister ask his officials to do a broader note on pirate release? This is of concern to the committee and is an important context. It is not for further debate now, but if his department could give us more background, particularly on how it was done with the EU and contributing nations, we would find that very useful.
It is important that the pirate community, if we can call it that, knows that this operation will go on until the situation is resolved on land and the rule of law comes back right across Somalia.
I thank noble Lords for having participated today, particularly those who are not members of this committee. It has been a huge privilege and pleasure for me to be chair of the committee over four years—although all committee members have put me under great pressure most of the time, quite rightly—but this will probably be the last report that I present within this Committee Room. I thank the staff of the committee. I am trying to remember who was a part of the team back then, but I know that one of them was Kathryn Colvin. I thank her in particular for having put this report together and for having brought all those witnesses in front of us as well as she did. I commend the report to the Grand Committee.
Government’s New Approach to Consultation: “Work in Progress” (SLSC Report)
(11 years, 2 months ago)
Grand CommitteeRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Goodlad
That the Grand Committee takes note of the Report of the Secondary Legislation Scrutiny Committee on The Government’s New Approach to Consultation: “Work in Progress” (22nd Report, HL Paper 100).
Lord Goodlad
My Lords, I greatly welcome the opportunity to open this debate on the Secondary Legislation Scrutiny Committee’s report. The committee was grateful to the many organisations and individuals who responded to our call for evidence; to the Minister for Government Policy, Oliver Letwin, who gave evidence to us; and to the clerks—Kate Lawrence, who is now on a well earned sabbatical, Jane White and Paul Bristow—for their invaluable work.
The main issues in our recommendations reflected the concerns expressed in the very large number of submissions that we received in response to our call for evidence. The Government did not ask for evidence, so I hope that the responses to our call for evidence will have been helpful. We urge the Government to ensure that the review of the consultation principles that were announced last July reflects the concerns expressed in the evidence, in particular a widely expressed preference for a 12-week standard duration of consultation. We ask the Government to recognise that six weeks is regarded as the minimum feasible consultation period, except in exceptional circumstances; to ensure that consultation periods do not clash with holidays or peak periods of activity for the target group of consultees; and to engage with key interest groups prior to launching consultations, so as to reach agreement with those groups on the broad outlines.
We recommended that the review should be started in January—we are now in March—and that its findings should be published by Easter. There are no plans to add to the evidence, which is already to hand. We recommended that the review should be carried out by a unit independent of government and that a stakeholder reference group should be convened, containing members from across civil society, to provide input for the review team. We also asked the Government to recognise that a “digital by default” approach to consultation was very likely to exclude a large proportion of our society, and in particular vulnerable groups. We asked the Government to demonstrate that wider engagement with vulnerable and so-called hard-to-reach groups was being delivered in practice.
In its evidence to us, the organisation Disability Rights UK voiced concern on behalf of the 42% of disabled people who live in households without internet access. The Disability Charities Consortium asked,
“How does the Government expect the proposed new approach to consultations to impact on its obligations to involve disabled people in policy development and decision-making under the UN Convention on the Rights of Persons with Disabilities?”.
A large number of the elderly, and indeed other people, who are not disabled will also be affected by the predisposition to digital communication. The noble Earl, Lord Lytton, who I am glad to see in his place, submitted evidence on this matter, and I hope that he will say more about that later in the debate.
We asked the Government to introduce as soon as possible a single website listing open consultations in the order in which they close, for the benefit of the many organisations that respond to invitations to give evidence to consultations. We further recommended that the new principles should explicitly commit departments to publicising timely responses to consultations and to strengthening the role of the Cabinet Office in the co-ordination of consultations. We also recommended that it should be clarified to stakeholders what redress is available to them if the consultation does not comply with the published principles.
The Government’s response to the report covered the format of the proposed review, its timing and its content. We were disappointed that a more leisurely timetable is proposed for the review than we had recommended, and that the proposed membership of the external advisory panel appears small in number. It is to be hoped that the disquiet and suspicion expressed in the responses to our call for evidence will be allayed by the findings of the review and by the Government’s subsequent actions.
Our recent history is littered with examples of government action where successful consultation could have averted enormous wastes of parliamentary time, government time and money, the time and money of other people, embarrassing government climbdowns, reversion to the drawing board and so on. Most recently, my noble friend Lady Thomas of Winchester, in the debate last week on the Delegated Powers and Regulatory Reform Committee’s report on strengthening statutory procedures for the scrutiny of delegated legislation, cited the lack of consultation on a crucial part of the Social Security (Personal Independence Payment) Regulations, which had to be changed by the DWP at the last minute and for which the Minister apologised. More or better consultation would have averted that.
A successful example of consultation, on the other hand, was the Department of Energy and Climate Change’s handling of the Nuclear Decommissioning and Waste Handling (Finance and Fees) Regulations 2013, where the consultation persuaded the Government that the regulations needed to be looked at again. In 2012, they invited views on a revision to the 2011 regulations, and the issue of workability in relation to reporting and verification requirements was thereby resolved in the most recent statutory instrument, thanks to proper consultation.
Over the past five years, an average of just over 900 statutory instruments per year have been scrutinised by your Lordships’ Secondary Legislation Scrutiny Committee, formerly the Merits Committee, each accompanied by an Explanatory Memorandum, including a section on the policy background of the instrument and a section on the consultation outcome.
The importance of effective consultation to the process of government appears before your Lordships’ Committee every week. It is clear that a willingness to listen to the views of interested parties sometimes gains support for a Government’s work, and that encouraging interested parties to comment on proposals before they are finalised and implemented usually means that the policy, which has been conceived within Whitehall, can be adjusted to the reality of the outside world.
Whitehall can never foresee all the detailed impacts of policy proposals. Those at the receiving end usually can, and may thereby contribute to the avoidance of mistakes. In our experience, some departments struggle to understand the use—the validity, even—of parliamentary scrutiny as a disinterested process rather than an unwelcome but necessary interference in the project management of an item of secondary legislation, far less the intrinsic value and necessity of consultation. As always, the extent of hoisting in this necessity depends on who you are dealing with. Some departments get it better than others; some learn it faster than others.
All who have worked in government have been impressed from time to time by feelings of profound frustration. Why can we not simply get on with the job when it is so obvious what needs to be done in the public interest? Why does the car not move forward when we press the accelerator? Why is the system so furred up, obstructed by endless consultations, reviews, inquiries, inquiries into inquiries, judicial review, human rights and so on? Conversely, we all, when at the receiving end of government activity that we do not like, sometimes feel that the world is being run by people in Whitehall who have descended from Mars, speaking only Martian, and have not the slightest knowledge of or interest in the concerns of ordinary people upon whom their whims and diktats are arbitrarily inflicted without a by-your-leave. To govern by consent in a modern democracy requires for success a resolution of those two conflicting states of mind. I hope that the committee’s report and this debate will make a small contribution to enhancing that success. I beg to move.
Lord Hart of Chilton
My Lords, I, too, am a member of your Lordships’ Secondary Legislation Scrutiny Committee, whose 22nd report for 2012-13 on the Government’s new approach to consultation we are considering today. The report was published in January this year and responded to by the Government in February, and here we are debating the matter in early March. Unlike in the previous debate, there can be no complaints about tardiness in that respect; on the contrary, compliments, not brickbats, are due to the usual channels. I am in complete agreement with the speech by our chairman, the noble Lord, Lord Goodlad. I pay tribute to his distinguished chairmanship of the committee, not just on this occasion but throughout his tenure.
Accordingly, I simply wish to emphasise and repeat some of the key issues that have arisen. First, I was very surprised that the Government, in bringing forward what they called new principles of consultation, failed to carry out any consultation themselves. In my view, the importance of the proper process of consultation in initiating new or revised policy cannot be underestimated. Much of my earlier career was spent reading and responding to consultations so I suppose I have a special interest, but proper consultation, in my view, is the essential oil for the engine of government. It test-beds the underlying principles with those most likely to be affected. It checks the support or opposition that will be forthcoming. It affords the opportunity to discover mistakes in assumptions, methodology or technical background. Last but by no means least, it forms part of a healthy participatory democracy; its presence strengthens confidence in government and its absence weakens democracy itself.
It follows that the process of consultation must afford sufficient time for views to be obtained, analysed and, in certain cases, responded to. Any perceived short cuts risk confidence being eroded or lost altogether. So, in the absence of any prior consultation exercise, the committee carried out its own by calling for evidence and, as the noble Lord, Lord Goodlad, has said, we were gratified by the extensive and constructive response. There was certainly no doubt about the importance that witnesses placed on consultations, but there was some scepticism about whether the Government shared that view. In particular, there was criticism over the time allowed to participate. There was a preference for 12 weeks for issues of importance or complexity, with a minimum of six, and the period selected should not fall over bank holidays, summer holidays or periods of peak activity for the target groups.
Prior consultation was something that the Government should engage in with key stakeholders to seek a consensus on the broad outlines of the matters to be consulted upon. With a significant percentage of the public not connected to the internet, the approach of “digital by default” left some excluded and others constrained. There was a feeling that the Government sometimes failed to realise the complexity of some of the issues being consulted upon and the capacity of organisations to respond with speed. There was often a lack of response to consultations once they had taken place, leaving an impression that the consultation process was just an exercise to be got through as quickly as possible.
Our recommendations to the Government recognised the strength of many of these issues, and suggested ways in which the principles could be improved. Our conclusion was that the new principles, in many respects, were failing to provide the consistency and transparency that the public are entitled to look for in consultation exercises. Accordingly, we urged the Government to launch an independent external review of their new approach to consultation without delay, meaning a start in January and the publication of findings by Easter this year. Although the Government have accepted the principle of a review, they are not treating the matter with the urgency that we recommended and that it deserves.
For my part, I have misgivings about whether the Government, even now, have really appreciated the important part that consultations play in the formulation of policy and in winning the confidence of the public, which was one of the avowed intentions in forming the coalition and embarking upon office. Speed is not the prerequisite hallmark of good governance; full and proper consultation most certainly is.
Baroness Hamwee
My Lords, some people might wonder why the Secondary Legislation Scrutiny Committee has given so much attention to the issue of consultation. With the unremitting tide of secondary legislation—except that tides go out as well as keep on coming in—almost invariably the question is prompted, “What has been the response to consultation on this?”. If the answer is not apparent, then the question is asked, “What consultation has there been?”. Our splendid advisers, for whom my admiration grows weekly, have extraordinarily sensitive and alert antennae to this.
It is important for the committee to know the response to consultation in order to fulfil its own remit. We have some specific roles and are also required to look at,
“general matters relating to the effective scrutiny of secondary legislation”.
It is obvious also that a House asked to approve—or at any rate not object to—an instrument needs to know how it has been received. Our chairman, the noble Lord, Lord Goodlad, gave a very comprehensive account of our report. I thank him for his chairmanship. Perhaps I may say that his conclusion was all the more devastating for being delivered so quietly.
The noble Lord referred to the report of the Delegated Powers and Regulatory Reform Committee, chaired by my noble friend Lady Thomas of Winchester. I am glad that she is here but sorry that she felt that she had to take her name off the list this morning because of the weather. I believe that she is waiting for updated weather reports to see how long she can stay. The debate reminded us that it is often secondary legislation that has the greatest impact on individuals. We hardly need reminding of this since so much contentious legislation bites through statutory instruments. We might think that as the amount of primary legislation grows, the amount of secondary legislation would diminish, but that seems not to be the case. The issue is inseparable from that of the House’s narrow and rigid powers explored by the DPRRC and by the Leader’s Group, chaired by the noble Lord, Lord Goodlad. This has been thrown into sharp focus by the high public expectations that fill our in-boxes about what the House can do in response to secondary legislation.
I agree with the proposition that was the starting point of the Government’s exercise: namely, that consultation should not be a matter merely of ticking boxes. However, it fails to recognise that tick-boxes have a place as aide-mémoires. We do not need to abolish tick-boxes to avoid being ruled by them. Consultation is important not just because, like everything government does, the instruments need to be seen from the point of view of those affected—for all the reasons explained by the noble Lord, Lord Hart of Chilton—but because Whitehall does not always know quite how things work in a variety of specialised areas. One may come from Maidenhead or Manchester, not just from Mars, and fail in that regard.
Last week, the regulations on health service commissioning were withdrawn. Our committee had received a huge amount of evidence, including from many professional organisations that understood how the regulations before us would or would not work. They gave very powerful evidence about the practical impact.
Baroness Hamwee
My Lords, I was making the point before the Division that the content of instruments and consultation are not simply technical matters. Our committee received a great deal of evidence on the subject when we put out a call. I shall quote a comparatively small amount—although I am going to quote quite a lot—from the large bundle of evidence that I am holding. The first points come from an individual who wrote:
“The new Principles have retained all of the previous authority of the Government while reducing the scope for individuals and groups to prepare useful submissions. Yet, within the latest incarnation of the No. 10 website, the message is positive and encouraging, and the linked site Inside Government is clear and easy to follow … The contrast between the Principles and the No. 10 site is glaring - Governments must not create difficulties designed to deter the public. In turn, the public has a responsibility to understand the policy and explicit questions asked within a consultation … Individual members of the public generally struggle to be heard as the collective forces of lobbyists, media, and protest groups set about their respective quests. It is understandable that single-interest groups are forming as a response to perceived indifference, often spawning other groups holding alternate opinions. The internet enables such groups to form quickly and at low cost, perhaps inspiring the media … to provide their online readers with facilities to comment directly on articles, swiftly followed by site moderation: give the public a stick and anonymity and they will use both”.
The use of digital media came up a great deal, as did problems of capacity and timescales, which have already been referred to. I shall quote from a small part of the evidence, this time from an organisation. We were told that,
“communicating the consultation questions to all the relevant affected groups: we understand that the Government would do its best to notify all the groups whom it believes would be affected by a particular proposal, however, part of the reason for consultation is to be able to identify any unintended consequences. These may well come from groups whom the Government has not foreseen will be affected by the proposal in question. A two week consultation period will be unlikely to reach them … Many NGOs operate on a consensus basis and would have difficulty in meeting much shorter deadlines. For example, the Women’s Resource Centre”—
which was the witness—
“like many similar organisations, needs its members’ consent before making a response on issues of policy and this cannot be done within a fortnight. Smaller NGOs that have few if any professional staff are likely to find it particularly difficult to respond quickly”.
It is not only NGOs that have problems with short timescales. For some organisations—local government is an obvious example—there are formal processes which have to stick to a formal timetable. We were given evidence by a number of organisations about the burden of consultation. They were complaining not simply about the number of issues which the Government keep throwing up—all Governments do that—but about the burden of being asked to give a quick turnaround. The Bar Council was one of those.
The Women’s Resource Centre went on to state, of the Government’s proposals:
“This approach seems to be based on receiving a ‘yes’/‘no’ response from trusted insiders rather than being ‘a more proportionate or targeted approach’”—
it was quoting from the Government’s comments—
“and it has some obvious adverse impacts”.
“Digital only” or “digital by default” was referred to. The centre then stated:
“Additionally, on-line responses tend to allow less flexibility in the way respondents can answer the questions”.
That rang quite a bell with me. I have often been frustrated by online consultations where it has been very difficult to include any sort of nuance or spectrum of response. I was horrified to hear or see—I am not sure whether it was in the debate on my noble friend’s committee’s report or in the evidence—the suggestion of making a response by Twitter. I hope that we do not come to that.
I understand the Cabinet Office’s wish to ensure that consultation is effective and not wasteful of resources. Although those are entirely benign intentions, the very reaction must have prompted some doubt. As we have heard, there is to be a review, with the involvement of an external advisory panel, not a stakeholder reference group, to “inform the review”. Can my noble friend the Minister give us more information on who will take part in the panel and the review group, on how it will operate, and on anything else that he is aware of that might help your Lordships assess the whole situation?
The Government announced their consultation principles as,
“a new approach to consultation”.
It seems not very long ago that in another capacity, as a scrutiniser, I was being informed of a new approach to consultation which put in place formal processes, a formal 12-week period and so on. I fear that, in seeking efficiency, we may find ourselves on a path back to some of the old ways of doing things, and not in a brave new world.
Lord Bichard
My Lords, I have experienced consultation from several different perspectives during my long years. I have experienced it as a local authority chief executive, as a senior civil servant, as a quango chair, a chair of several major voluntary organisations, and as a non-exec of a private sector organisation providing services for the Government. These experiences have taught me some important lessons.
This first is that, as a rule, and with some honourable exceptions, civil servants instinctively do not much like consultation because it rather slows down the process of implementing their favoured proposal and can throw up some inconvenient but valid objections which even—heaven forbid—Ministers might find convincing. For many of the same reasons, some Ministers and quango chairs are sometimes inclined to circumnavigate the consultation process while, in contrast, voluntary organisations and private providers much value consultation because they often feel that the frequent changes to government policy and operating procedures could and would benefit from more, not less, consultation.
From these various experiences, I have been convinced that policy can be greatly improved as a result of effective consultation. There are many examples of that having happened. It has not yet been mentioned that consultation is also much more likely to ensure that legislation and policy changes are introduced with public support rather than in a hostile environment.
Consultation matters, as the chairman of the committee of which I, too, am a member, so eloquently said. This is a serious and important matter. It is not arcane. It is not just a matter for the nerds, or something that can be swept into the long grass. Not only does it matter, it needs to be regulated to ensure that it is conscientiously and thoroughly undertaken.
Strangely, before the Government introduced these new guidelines, there was, as has already been said, advice in place. It had been agreed with the voluntary sector and other interested stakeholders, and seemed to be working rather well. Although it set a uniform 12-week period for consultation, common sense accepted that sometimes a shorter period would be needed, and that happened when necessary. But perhaps, without having time to look at the statistics which demonstrated that this was being operated sensibly, Ministers were convinced by their officials that this was all taking up too much time, was excessively bureaucratic and was delaying the implementation of vital government policy, and so the new guidance was issued.
Oddly, since it was about consultation, it was not felt necessary to consult those affected. Nor was it felt necessary to prohibit commencing consultations at the start of holiday periods when those affected might not be available. Surely no one would do that deliberately. However, it has happened rather a lot to be a coincidence. It was not even felt necessary to require departments to publish a response to consultations so that respondees could at least see that their views had been considered rather than peremptorily ignored. Of course, if people cannot see that their views are taken note of, they very quickly decide that it is not worth being involved in a consultation at all. A commitment, as has been said, was made to digital consultation as the norm, with no attempt to identify groups for whom this would cause serious problems. No commitment was made at publication for an independent review of how these new arrangements were working.
It has been said that when the Minister appeared before the Select Committee, he appeared to concede significant ground on all these points. Perhaps it would have been helpful to make clear that consultation during holiday periods was not desirable; perhaps it would have been useful to publish some analysis of responses; and maybe an independent review would have been helpful. But the Minister’s later, more considered response suggested that all these matters would merely be looked at as part of the review; not now to be undertaken independently and externally but by the Cabinet Office—which is not perhaps entirely dispassionate on the matter—with advice, it seems, from an advisory committee. At this point I am trying to recall which episode of “Yes Minister” contained this storyline, because I am absolutely certain that there was one. I have been away and I have not had a chance to research that.
The final irony is that these changes have been made to inject a sense of urgency into the policy process and to reduce bureaucracy. So far their introduction has provoked widespread opposition and criticism. It has caused the Secondary Legislation Scrutiny Select Committee to discuss the proposals on at least four occasions, with the Minister attending one of those; it has led to the establishment of a review; and it has led to the establishment of an advisory board and the likelihood of many further debates when the review is published.
Perhaps most important of all, it has suggested that the Government’s commitment to the big society and listening to the voice of civil society is more about rhetoric than a genuine desire to listen to the views of interested parties—especially, I am sad to say, if their views are inconvenient. I suggest that it would be better, even now, to revert to the previous guidelines and, if not, to have a properly independent review carried out with greater urgency than we have seen so far.
The Earl of Lytton
My Lords, I was a late addition to the speakers list, having struggled manfully over the weekend to address the reasons why I could not enter my username and password on the Government Whips website. Eventually I had to e-mail late last night, asking if they would do it on the basis of an e-mail rather than either appearing in person or having filled in the form. This highlights that even those who think they know what they are doing on information technology sometimes fail to unlock the key to the relevant bit they want to get at. I will return to that theme.
Apart from the noble Baroness, Lady Smith of Basildon, and the Minister, I am the only speaker who is not a member of the committee. I am very glad to support the committee because I receive its regular bulletins and I find them extremely useful and the most valuable guide. I would like to mention that in passing.
I congratulate in particular the noble Lord, Lord Goodlad, and his committee on what is a very lucid and well reasoned document. The Government would have done well to accept it without demur or delay; the evidence certainly seems to me to speak for itself very cogently. I agree with him and the other committee members on the importance of the basic issue; efficient secondary legislation and engagement with the public through the medium of consultation is, in my view, the very bedrock of an effective and inclusive parliamentary democracy. It is important that it is respected as a process both by the public and by the Government.
Changes introduced in 2008 were necessary to restore confidence because in some respects the issue of consultation had become a music hall joke in which the “departmental book of dirty tricks” would have indicated such things as a 10-week consultation period starting on 25 July, or a six-week one starting in the first week in December. I have come across both in years gone past. So glaring have some of these examples been in the past that it was quite impossible to believe that the timing was an innocent accident as opposed to being the fruits of calculated design aimed at circumscribing the practicability of any response. I agree entirely with the noble Lord, Lord Bichard, and some of his comments. Having myself been a regular consultee, involved in consultation processes such as those that we are talking about, I know what it is like to find myself thoroughly disillusioned. Even without any realistic outcomes to consultation, as has sometimes happened, and this has already been mentioned, the body language of the whole process was really quite evident to anybody who chose to look at it in the round.
I do not say for one minute that brief consultation periods are wrong. I can think of one last summer that concerned the matter of signatures necessary for parish councils to make payments and the impediment that the previous rules presented to electronic payments—I declare an interest here as president of the National Association of Local Councils—where the consultation on the solution involved a very limited pool of interests. The participants had already sought resolutions that their national body lobby the Government to revise the regulations and make the necessary changes. It was important, particularly in the context of local government finance, to do something sooner rather than later, so arguably a short consultation in the summer holiday period was reasonable in that situation. Even there, though, a two-week consultation would, frankly, have been a complete nonsense. There must be a minimum, as suggested by the committee.
In evidence to the committee, I referred to the practicalities more generally concerning consultations that involve parish and town councils, with their customary cycle of meetings and the customary holiday periods that interpose into those. I do not want to make a meal about it because I am sure that noble Lords are entirely au fait with exactly what that means: in short, it is impossible, under a very curtailed consultation period, to make a proper response. Eventually, it falls probably to one person—either a clerk or the chairman—to try to knock something out for themselves and hope that it actually meets with the general view of the committee. It is not a satisfactory way of doing things and leaves people feeling that they are exposed; on the one hand not being able to consult their members, and on the other hand having to make a consultation of some sort or miss the opportunity. We need to guard against doing things that are administratively convenient but are apparently done without assessing the impact on those whom we are trying to consult. To put it another way, the process at the moment is not sufficiently proof against the proper role and function of consultation being overlooked, so this report is timely.
I noted that one of the consultees, the Consultation Institute, set out a sort of subdivision between short, medium and long-term consultations. I think we need a more elaborate and more sophisticated approach than that crude subdivision but the idea of a simple impact assessment, assessing the gravity of effects multiplied by the numerical instance, seems to be along the lines of a risk assessment and that type of approach that is now well understood in government and outside. There are always going to be cases where the matter is urgent but I do not think that we are ever going to be dealing with emergency measures by way of consulting the world and his boy. However, where the consultees are a small and identifiable group of, say, specialist manufacturers, I can see that a very short and targeted consultation might well be fine in that situation.
Consultation must be an intrinsically organic and human-scale exercise. It has to operate at a reasonable speed for the typical consultee, having regard to their characteristics. Those include their age, their ability to absorb technical detail and their educational attainment, as well as competition for their valuable time.
The noble Lord, Lord Goodlad, referred to my comment in the consultation about the “digital by default” approach. There are a number of issues here. First, taken at face value, that is not the answer. Significant numbers of people do not have digital access. Secondly, many of those who have such access do not have more than basic computer skills. Thirdly, not everyone is comfortable filling in a form online, regardless of their ability with a computer. Fourthly, it is very easy to limit the utility and type of response that one can get from a consultation process by the manner and design of the electronic consultation form, and in particular the space allowed for certain types of answer. Some consultations specifically ask for answers to particular questions that the consultor wants answered. The answers are not necessarily the comments that the consultee wishes to give.
It is very important that we get this right. It will be damaging if the public once again feel that they are being short-changed by the process, by over-short timescales, by artificial limitation of the type and range of issues that can be raised, by the matter not being set in its proper context or by the issue being too complex because it has not been unpacked sufficiently. All those things militate against good consultation. I share the committee’s view that the Government’s response lacks urgency. If we are not careful, there is the risk that the momentum of a very considerable and beneficial piece of work will be lost.
Lord Scott of Foscote
My Lords, I congratulate the noble Lord, Lord Goodlad, on securing this debate. Formally, it is a debate on the report of the Select Committee of which he is the very efficient chairman and of which I have the honour to be a member—as does practically every other noble Lord in the Room. I agree with everything that has been said about the report and the importance of consultation, but I will say a few words of my own.
The purpose of consultation must be to improve the quality of proposed legislation, whether primary or secondary. It is much more important in relation to secondary legislation than to primary. With primary legislation, a Bill will have gone through the House of Commons and will go through its stages in the House of Lords. It will become public property. From time to time there will be comments in the newspapers. Members of the House will receive letters from interested persons, sometimes expressing support and sometimes expressing misgivings. They will be fully informed in that way about the merits and demerits of the proposed primary or secondary legislation before the matter comes to a head.
With secondary legislation, what is the opportunity for members of the public to make those sorts of observations—of support or criticism, as the case may be? If an affirmative resolution of the House is required, in due course the legislation will come before the House. Either it will start in the Moses Room and go to the Chamber or it will be dealt with entirely in the Chamber. However, the notice might not be sufficient to alert interested members of the public to what is afoot. With secondary legislation that requires a negative resolution to prevent it coming into effect, there will be no notice to the public at all. Every now and again, a regret Motion may be tabled. In that way a debate of which the public may become aware will take place, but that is a relative rarity. Secondary legislation that is going to come into effect without any express resolution, and which requires a negative resolution to prevent it coming into effect, is much more common. How, without prior consultation, are defects in secondary legislation of that negative character going to become apparent and be acted upon? Prior consultation, in my respectful opinion, is essential in all cases where the statutory instrument in question is going to come into effect unless there is a successful regret Motion preventing it coming into effect.
The importance of that is obvious and does not need overstating. The importance of the consultation is, first, that defects not necessarily apparent to the Minister or civil servants who have drafted the statutory instruments in question can be brought to their attention and revisions can be made before it is too late for them to be made. The pros and cons of the proposed secondary legislation can be brought to the attention of those who will be affected by the legislation. They may be affected because their interests will be involved by what is proposed. They may be affected simply because they are very knowledgeable about the subject matter of the proposed legislation. In either case, they are people whose comments may be very valuable to the Government for the purpose of obtaining the effective and sensible legislation that must be the aim of the Executive.
The importance of consultation cannot be overstated. However, effective consultation requires that there be communication with the right people. As I have said, they will be people with a particular knowledge of the subject in question and whose interests are likely to be affected by the proposals that will be embodied in the statutory instrument that is under review. They are the people who the Government should consult with before drafting and putting forward the proposed secondary legislation. There is no reason why that cannot be done but, if it is going to be done, it must be done effectively, and if it is going to be done effectively then it must be done with sufficient time for two things to happen. First, there must be sufficient time for the persons who are being informed of the proposals—the persons with whom the consultation is taking place—to think about it and draft a response. Secondly, there must be time for the Government to consider the responses and to act on them as they may think appropriate.
The proposition that there can be a consultation in two weeks is absurd. That suggestion is no more than a request, perhaps, for a fig leaf of consultation that can be held up for public relations purposes as being a consultation when in fact, because of the absence of any time adequate for a proper consultation, it will be nothing of the sort. It will not deserve the description of a consultation. The proposition that two weeks might be adequate is, in my respectful opinion, laughable. It demeans a Government who put it forward as sufficient.
The proposal that there be a flexible time limit is of course acceptable in principle. Twelve weeks as the norm has been satisfactory, but maybe there are cases where that could be abridged, or shortened to some extent. A minimum of six weeks appears to me to be a sensible limit to place on the abridgement possibilities.
Subject to those requirements of genuineness in the consultation process, consultation might be described as being plainly a good thing. However, it is not a good thing if inadequate time is allowed for responses to be given or for thought to be given to them. If insufficient time is allowed, what purports to be a consultation becomes no more than a public relations exercise in hypocrisy. That, plainly, cannot and should not be supported by the House.
I respectfully endorse the suggestions in the report of the committee—of which, as I have said, I have the honour to be a member—of a minimum period of six weeks. I urge the Government, if not to adopt the number of weeks in question, at least to adopt the principle of the essential requirement of time for response and time for thought for anything that is going to be an adequate consultation.
Lord Beecham
My Lords, I congratulate the chairman on his appointment. I take particular pleasure in the fact that I think he is now the only Member of your Lordships’ House from the north-east to occupy such a position, and I am very glad on that account. I also congratulate the noble Lord, Lord Goodlad, and the committee on the report.
Before I joined this House nearly three years ago, I spent 50 years in politics in one form or another, 43 of them as a local councillor. In my innocence, though, I was quite unaware of the degree to which the scrutiny conducted, particularly at the other end of the Palace of Westminster, was so inadequate. It is undoubtedly better in your Lordships’ House. Having said that, though, it is clear that the process of scrutiny is not as good as it should be, and that is partly a function of the consultation process. This first came to my attention when we discussed the changes that were to be made to the Public Bodies Bill. It was quite clear that decisions had in fact been made and that the consultation, to the extent that it did occur, was something of a sham.
I think that I coined the term “pre-legislative implementation” for some of what happened under the aegis of that Bill, and I am glad that the Constitution Committee is looking into that. I recall particularly the noble Lord, Lord Taylor of Holbeach—I do not blame him personally for this—giving constant assurances that there would be consultation in connection with the regional development agencies, and that each would be considered on its merits. In the event, there was no consultation at all and they all went. I do not blame the noble Lord for that; the decision was clearly taken somewhat above his pay grade.
The noble Lord, Lord Goodlad, referred in his speech to contributions from Mars. I can reassure him about that; one item that has been subject to consultation is the reform of the Outer Space Act. On page 26 of the committee’s report it will be seen that 14 weeks were devoted to possible consultation on that, in contrast to four weeks for the statutory instruments concerning the delivery of structural funds—a matter of more immediate concern, it might be thought, to all save those particularly interested in astronomy and the like. Equally, when looking at the Department of Health, one sees some strange discrepancies. Page 32 of the report points out that making nursery milk schemes more effective had an 18-week consultation whereas consultation on the membership of Healthwatch England, a matter that itself particularly concerned scrutiny, took only five weeks. Clearly, something is amiss with all this.
I respectfully differ somewhat from the noble and learned Lord, Lord Scott, on the assumption that we should deal only with secondary legislation. Experience of the Crime and Courts Bill in particular underlined that consultation took place very late; indeed, material was introduced into your Lordships’ House halfway through the passage of the Bill on the basis of consultation that had taken place after the Bill had been launched. In another context, on transforming bailiffs, months elapsed between the end of the consultation and a government response being provided, well into the course of the Bill. So while in many respects secondary legislation would be the prime area, it is not the only one about which we should be concerned.
The difficulty that many of us see is that there is an increasing reliance on secondary legislation to fill in the details not included in primary legislation nor debated during the passage of what, too often, is in effect becoming enabling legislation. I strongly support the committee’s recommendations and hope that they can be implemented in relation to consultation at whatever point it is initiated.
Baroness Thomas of Winchester
My Lords, I, too, applaud the committee’s report and strongly endorse its recommendations. I will just say a very quick word about why consultation is so important, particularly for disabled people. I absolutely accept that there are many sorts of disability, but let us take the disability of somebody such as me, with mobility problems. No one except a disabled person, or their carer or helper, can know what it is like to be disabled. That is why consultation, for this group of people, is so important. People have their eyes opened when they either go round with a disabled person or when they put themselves in a wheelchair. I know a lot of MPs have done just that to see what conditions are like in their constituencies. I note that many of the responses that the committee has highlighted are from charities with a lot of disabled people in them. I will not speak about the PIP regulations again but they are an absolutely classic example of why consultation is so important.
The other thing I will highlight is that a single website for publicising government consultations would be invaluable. At the moment they are all over the place and it is quite a scandal that the Government are expecting some organisations to respond in a very short timeframe. After all, the people in these organisations are usually paid very small amounts, because the organisations are funded by voluntary donations, with no state support. To make these people look all over the place for consultations from the Government is ridiculous. I thoroughly endorse the robust language of the report and hope that the Government are listening.
Baroness Smith of Basildon
My Lords, I first thank the noble Lord, Lord Goodlad, and his committee for a welcome and extremely useful report for your Lordships’ House. This is the second debate on a Secondary Legislation Scrutiny Committee report in the past two weeks to which I have responded on behalf of our Benches. If I am honest, my first reaction on looking at the reports was, “This could be a bit dry”. However, it actually goes much deeper than that. Not only have I have enjoyed participating in, and learnt an enormous amount from, these two debates, but they go right to the heart of our democracy and our role in your Lordships’ House as people who scrutinise legislation. It shows the House of Lords at its best: it is looking at the process of government not in an academic or remote way but in a very practical way and examining the impact of these proposals on parliamentary scrutiny. It has also—I cannot overstate this—given a voice to those who had serious concerns about the changes that the Government have made to the principles of consultation but who had not been given an opportunity to express their concerns or to be consulted in any way, to try to influence that policy before it came in. The House owes a debt of gratitude to the committee for providing that opportunity for a proper consultation on this issue.
I have been quite eager to hear today’s debate and the Minister’s response. The main reason is that, having read through the Government’s statement from July, the reports and the appendices, and the government response, I am still not totally clear what problem the Government are seeking to address by changing the rules and having this new statement of principles on consultations. I hope that we will hear from the Minister today what the problem is that the Government feel has to be addressed and what the evidence base is for the change that has taken place. The Minister’s statement in July is quite clear as to the Government’s stated objectives: that consultation must be proportionate, in terms of time, scale and type; that there should be real engagement rather than just a bureaucratic process; and that thought should be given to with whom Ministers should seek to engage so that there can be a targeted consultation.
However, all Governments would say exactly the same about those processes. In 2008, when the Labour Government brought in the Code of Practice on Consultation which this Government have now replaced, my noble friend Lord Hutton of Furness who was then Secretary of State for Business, Enterprise and Regulatory Reform, wrote in the foreword:
“This Government is committed to effective consultation; consultation which is targeted at, and easily accessible to, those with a clear interest in the policy in question. Effective consultation ... which the Government can use to design effective solutions”.
That 2008 code of practice, which laid out seven criteria for consultation, was a widely respected and very welcome document. Noble Lords here today have asked why we do not just go back and use that 2008 document. Why the change?
In its report, the committee acknowledged that that document was produced for consultation and engagement with those parties who had an interest in such matters. From looking at the way in which these new proposals have been put forward and handled and, from reading the report, the Minister’s first response has led to considerable suspicion that the Government’s priority is to curtail consultation and accessibility to it. The proposals for two areas of the process were announced in a Written Ministerial Statement issued on the last day before the Summer Recess. The Statement made clear that these were now to be the principles, though the Government would have a post facto look at them if they received any representations. That sounds very mealy-mouthed. Of course there would be representations. The Secondary Legislation Scrutiny Committee was overwhelmed with responses when it asked for views on this matter.
As to content, the headline measure was that the 12-week default timescale for consultation was to be dispensed with in pursuit of proportionality and flexibility. That Statement overlooked the fact—as the committee has rightly pointed out—that the 2008 principles already contained such scope for flexibility. In the wider context, when the Prime Minister spoke to the CBI in November 2012, suspicions were then roused about the real intention behind the Government’s changes. What is the Minister’s reaction to the Prime Minister’s comments that,
“we are going further, saying, if there is no need for a consultation, then don’t have one”?
Here are the Government making the decision as to whether or not there is any need for consultation on a government policy. I think we would all agree that the Government do not have a monopoly on wisdom; genuine, meaningful, effective consultation is very important. At that time, the Prime Minister also said:
“When we came to power there had to be a three month consultation on everything and I mean everything, no matter how big or how small”.
Clearly that was not the case, as the committee outlines in its report.
So how does the attitude of the Prime Minister square up to other stated aims of this Government, to foster a new politics of citizen engagement and to promote localism? What has happened to those principles of the big society? Democracy and the big society are about more than casting a vote once every five years in a general election. They are about engagement, and consultation is the opportunity for engagement with the wider community.
I would welcome comments and assurances from the Minister here today, because the Government will have to show by practice and example that suspicions that they want to curtail consultations are unfounded. Failure to engage on process and content before it was introduced will mean that assurances alone will not be enough to allay the fears of those who have raised concerns.
There is much in the statement the Government made in July with which we can all agree. The first purpose of consultation should always be to use the knowledge, skills and information from consultees to improve policy formulation or implementation. I appreciate that no amount of consultation is going to change a key manifesto commitment or policy aim of the Government. But there are few consultations that fulfil those criteria. Many seek the views of those with expertise; the committee used the expression “expert critique”, which seems very apt.
One concern regarding the new principles is the removal of the requirement to provide feedback to participants. Both the Centre for Public Scrutiny and the Association for the Conservation of Energy expressed concerns, and the committee raised this with the Minister. In his response when he met with the committee, the Minister accepted that the feedback would be “very reasonable”, but he failed to make a specific commitment. The committee is right to highlight this as a recommendation. There should always be a timely response with feedback, otherwise the whole process of consultation becomes flawed.
As a slight aside, there is a serious point about the credibility of consultations. There is a great danger that consultation, in itself, is losing credibility with the public. A large proportion of the public now feel that many consultations, not just those of central government but of local government and other organisations, are a sham. The reason is that, too often, nothing significant changes as a result of consultation. We will all know of examples where a majority oppose an issue being consulted on, and yet it goes ahead. In my local area there is a consultation as to whether blood tests conducted at two local hospitals should be bussed up to Bedford for the testing to take place. I have not found anybody in favour of it yet, but it seems to be going ahead, which is quite wrong.
A Guardian article today—I am sure that the Minister is a Guardian reader; he has that look about him—which the Minister’s laugh tells me he has probably read, says that parents have criticised academy conversion talks as a farce. It states:
“Parents at a popular primary school threatened with takeover by an academy chain have labelled a promised consultation a farce after the main questionnaire failed to even ask them if they wanted the school to change status”.
This is a consultation that the DfE has instructed the company wanting to set up the school to undertake. A parent quoted in the article says:
“To not even ask us initially if we wanted the school to be an academy, it’s just indicative of a whole attitude … It really doesn’t seem that they want our views at all. It’s as if the decision has already been made—which we think it has. It’s a bit of a farce”.
I worry about that because consultation is extremely important, as the committee highlighted in its report, in helping the Government produce good legislation. Any Government should welcome that. If the whole process of consultation falls into disrepute, the Government will not get the support, the “big society”, the buy-in or the participative democracy that any true society or Government needs.
We are less likely to see changes in key policies from consultation than we would from consultations on implementation. There is often a reluctance to make significant changes, especially when preparatory work has already been undertaken during the consultation period. It is clear that pre-legislative scrutiny has been useful in ironing out potential difficulties and problems, but when such scrutiny or consultation is inadequate we see the kind of problems that we saw even last week: the Government had to revoke a key order which formed part of the Health and Social Care Act. Adequate scrutiny could have avoided that taking place.
True scrutiny, true consultation, has to be genuine and not a process or exercise. If a Government have no intention of listening or making any changes, then it is frankly irrelevant whether it is two or 12 weeks; it is wasting everybody’s time. Yet the losers there will be the Government and legislation, through the loss of support.
I recall a specific incident when I was a Minister for a devolved department in Northern Ireland. There had been a consultation exercise for the standard 12 weeks. It was brought to me with the original consultation responses and the response that we should make—not a single thing having changed in response to that consultation. When I asked about it, there were clearly two or three significant points. However, as the noble Lord, Lord Bichard, said, when work has been undertaken and a report has been prepared, there is a reluctance to change. I am pleased to say that, on that occasion, we did respond to the consultation and make some fairly significant changes as a result. Good consultation makes for better legislation and better implementation.
I will emphasise four points and ask for the Minister’s comments. First, what is the problem that the Government are seeking to resolve? In its report, the committee is very clear about the amount of consultation that takes place. The Prime Minister’s comment that everything had to be consulted on for three months was not the case. The committee looked at statutory instruments between November 2010 and November 2012 and found that there was a 12-week consultation in only around 25% of cases. Clearly it was not the case that everything was consulted on for three months.
Further evidence was provided to the committee by Oliver Letwin, showing that it was not the case that everything was consulted on for three months, even though there was quite a lot of change. That led to the committee to observe that,
“it would be helpful to the wider public debate if the Government were to recognise more explicitly that Departments have always had, and applied, flexibility over the conduct and timing of consultations”.
The Government do not give their case any credibility by failing to acknowledge that. I would welcome the Minister’s comments on what the problem was and why this had to be brought forward, given the comments made by the committee on that point.
The second point is about “digital by default”. We all know that it is cheaper and easier for the Government to consult via the internet. However, as we have heard, not everyone has internet use. The committee’s report identifies that 23% of people do not have any access to the internet. Last year I received several very neatly written letters from a young man who was highly intelligent but had a form of autism. He was a savant. His letters were very detailed and had drawings attached. He had wanted to be part of a government consultation, but his contribution had been sent back because he had not put it on the appropriate form and had not replied via the internet. It is inappropriate when somebody who wants to respond is prevented from doing so in such a way.
The committee made a number of helpful recommendations. Unfortunately, they were not addressed in the Government’s response. It would be helpful if the Minister would say exactly what is meant by “digital by default”. There is a lack of clarity, particularly when there has not been a response to the points made by the committee.
The committee also made very helpful suggestions on engagement. It is clear from those who responded to the committee’s consultation that a lot of people want to respond, to engage and to be helpful and useful to the Government. Many made very valid points about why the consultation should be 12 weeks. I draw the Minister’s attention to the submission from the Institution for Occupational Safety and Health, which makes the point that as a key stakeholder it can provide invaluable information and suggestions that consulting bodies may otherwise fail to consider. Its members come for practical health and safety input and for help in determining what is workable, effective and enforceable. The institution states that it needs 12 weeks to get that kind of information together in order to be helpful and comprehensive in its approach to government.
The CBI makes a similar point on page 10 of the report. It states:
“How not to do it: employee-owner status ... The consultation opened on 18 October 2012 and closed just three weeks later”,
despite the complexities of the issues raised. Does the Minister think that those organisations raised valid concerns about the nature of the consultations to which they responded? Will he confirm to the Committee that the points raised by those organisations and others will be taken into account and addressed in the review?
I agree with the point of the noble Baroness, Lady Thomas, that there should be a central point for consultations that people can access. Just last week I had to telephone the Home Office because the link I had been given to respond to a government consultation did not work. The department had been helpful in sending the link, but it was not available. A central point for all information would be useful.
I agree with the committee on both review and oversight. I thought that the Minister’s response was trying to be helpful in terms of the content of the review, though I entirely agree that, given the nature of the Government’s principles and the response that there has been, an earlier date would be preferable. I do not think that the points that Oliver Letwin made about the reasons were unreasonable, but they seemed to be taken account of in the committee’s recommendation. If the Minister could explain why there has to be a delay in getting this review under way and reporting back to your Lordships’ House, that would be helpful.
I hope that the review itself will also be subject to consultation. The great error highlighted in the report is that it has not been subject to consultation and has caused problems as a result; it would be useful to have buy-in from consultees. The committee said in its report:
“We recommended an early review because of the strong evidence we had received that a very wide range of interested parties saw the new Consultation Principles as having a detrimental effect on the development of good legislation”,
and said that it had,
“the superficial attraction of speeding up consultations”,
although that is contradicted by the Minister’s own figures that have been passed to the committee.
The committee made some very valid criticisms of how the Government intend to implement the external advisory panel. I am interested in why the Government are rejecting the point.
I think that I have spoken long enough on this issue. I hope that the Minister is taking this debate seriously and understands the real concerns that have been voiced. A lot of weight will be attached to the response that he gives today and to the Government’s review, and I hope that he is able to address the real concerns and worries we all have in the interests of good legislation.
Lord Wallace of Saltaire
My Lords, I am tempted to speak at double speed in the hope that we may finish before we have the next Division. This is for me also the second debate in two weeks on machinery issues, as it were—how we go about things. I started on both thinking, “This is very dry”, but I think that this shows the House of Lords very much at its best—looking at, in the previous instance, how we handle secondary legislation and, in this instance, how we handle consultations.
I intend to answer this not by defending the current Government, because I am aware that these are structural problems of government and of the way in which the Executive deal with the legislature and vice versa. I am conscious, as I think back, that I first used to worry about Henry VIII clauses when I was in opposition many years ago. In reading back to the 2007-08 consultations, I come across phrases like “consultation fatigue” and “the struggles of the Better Regulation Executive”. Indeed, I have a dim memory that my wife was on the Better Regulation Advisory Council at the time, and would come home very frustrated with some of the problems that it was facing about all the different contradictions in attempting to improve regulation and consult with the widest number of parties but nevertheless to reach an end to it.
The noble Lord, Lord Hart, rightly said that speed is not the universal hallmark of good government, but of course delay over extended periods is not the universal hallmark of good government either. If one looks back at some of the other areas in which successive Governments consulted most—airports policy in south-east England, for example—one could not say that one ever cut short consultation on that process. Over the past 30 years, the occasional decision by a Government, whichever Government it was, to override one or two of those consulted parties might have been a good idea. Consultation does not necessarily lead to consensus. I have been involved in consultations over House of Lords reform over the past 20 years, and we have not quite reached consensus on it yet through each successive process of consultation.
One of the starting points for the current Government on consultation is to say to departments, “The earlier that consultation is engaged in, the better”. A process in which you more or less decide what it is you want to do and then, when you have decided, you carry out a 12-week consultation process in which you ask everyone what they think about what you have decided is actually a very bad thing. It would be much better and more constructive—this is part of what the Cabinet Office has been saying to departments—to engage with your stakeholders as early as possible, before things have hardened into a consensus within Whitehall, so that you learn where the obstacles are likely to be and you can actually have a worthwhile exchange of views. That of course means that the Government are likely to consult first with the visible stakeholders and that there is always the problem of those who might be excluded or those who want to be involved. A later-stage consultation in which you allow others who you might not have thought of in the first instance to come in nevertheless is there to be added at the later point. Late consultation risks being a formal allowance for objections to be made; the earlier it is, therefore, the better.
My noble friend Lady Hamwee rightly talked about the burden of consultation on both sides. That came back in some of the evidence submitted to the committee —the number of occasions on which the Government are asking for consultations.
Looking back into some of this, I was struck when I came across the phrase, “the consultation and engagement community”; the professionals who were out there doing their best to catch each consultation as it came through. I am conscious of how far this industry—in a sense, this community—has grown. Coming back on the train—
The Deputy Speaker (Viscount Simon)
My Lords, a Division has been called in the House. We will adjourn until 6.56 pm.
Lord Wallace of Saltaire
My Lords, I was saying when we broke that much of this is about the tension between the Opposition and the Government, legislature and Executive, and that we have a range of long-running problems in how government consults.
I will try to answer the four questions that the noble Baroness, Lady Smith of Basildon, has raised as a focus for dealing with this extremely broad subject. After all, when one talks about consultation, one is covering a very wide range of subjects. What you need to do when consulting about, for example, the patterns of dog ownership and how to address identification of dogs—on which, on a digital consultation, some 27,000 individual replies came in very rapidly—is very different from when you are discussing an issue on land planning, the school curriculum or even perhaps on caravan sites. We have to have different sorts of consultation patterns to some extent for different sorts of issues.
The problem that the Government are seeking to resolve is how to make consultation more effective as government becomes more digital—the digital revolution provides a great many opportunities for us—and as the Civil Service gets leaner and therefore, unavoidably, slightly meaner. We note that a number of people have remarked that government has not been good at responding to consultations. Certainly that is part of what the review will need to take into account: how do we ensure that if you are consulting—and the formal consultation processes, which often come very late in a policy-making process, are the ones which really matter here—government is able to take the consultations into account and to provide a timely response?
On the “digital by default” issue, the Government are moving to a single gov.uk website. One of the things I am most excited about within government is the whole government digital proposal; how far we are beginning to transform the way in which government relates to the citizen as we go through the next digital revolution.
When I first began to be involved in this, I did not believe the DWP statistics about how many benefit claimants were interacting with government digitally. It is of the order of 25% and is expected to go up to about 70% within the next six to seven years. I found this very difficult to believe, but I now understand that we are all beginning to move along the digital corridor much more rapidly than we expected. People who do not see themselves as computer-enabled nevertheless have complex mobile phones through which they are beginning to interact with government. Part of what we hope we are able to do as we make government more open, and make access for the individual and for particular groups more available, is to make the process of consultation easier. There will be a single website, which will list all available consultations. This comes out of the whole governmental “digital by default” proposals.
The question of what is meant by “engagement” takes us into a broad set of issues, in which my noble friend Lord Goodlad raised the question of what we meant by “government by consent” in a modern democracy. I am conscious that part of the problem of how consultations are organised is that consultation now means dealing with a wide range of lobbies and interested groups, which perform the function that 30 to 40 years ago was often performed by political parties, which sorted out the range of political priorities and began to crunch through how you reconciled different priorities. Now that political parties are very much weaker and smaller, we have masses of single-issue groups, volunteer organisations, advocacy bodies, lobbies, interests and protest groups. Travelling back on the train from my party’s spring conference yesterday, I found myself sitting opposite a leading member of a major advocacy group who said that his biggest problem was “all the lobbies”, by which he meant the interested groups with which he competes and for which he wants to see, as do others, a statutory register of lobbyists, which will control their interactions with the Government. We all understand now that the battle over consultation and access to government, which will come up in a further discussion when the Government produce proposals for a statutory register of lobbyists, would take us yet again into this question of transparency, access, government response and so forth.
The noble Lord, Lord Scott, talked about the need for the Government to communicate with the “right people”, but consultation probably also has to be communication with the wrong people as well as the right people. At least, one has to be prepared to listen to the wrong people from time to time, although of course we recognise that communication and consultation early in the process has to start with the most logical stakeholders. However, we do not have to communicate only with them. We have to be careful not to communicate simply with the loudest people, or the best organised or funded.
The Government are therefore committed to open policy-making, as far as possible. The consultation principles say:
“Increasing the level of transparency improves the quality of policy making by bringing to bear expertise and alternative perspectives”.
How we manage that will also depend on how far the groups with which we are dealing are prepared to engage in a much more active consultation process from the beginning through to the end.
On hard-to-reach groups, when we are dealing with major aspects of aviation policy there are a few vulnerable groups about which one has to worry. Clearly, if you are dealing with disability policy, a Government have to make particular arrangements. Similarly, if you are dealing with caravan sites, there are different vulnerable groups and you have to make a particular effort. The Government are well aware of that. It will also come into the review.
The noble Baroness, Lady Smith, remarked critically on the Prime Minister’s comments that, if there is no need for a consultation, we should not have one. Oliver Letwin, in his evidence to your Lordships’ committee, talked a good deal about the principle of proportionality: some very minor and technical changes, such as a change in the name of an authority, do not need lengthy, expensive consultation. However, there are other areas with widespread consultation.
The noble Baroness, Lady Hamwee, talked about small organisations struggling to respond quickly, especially NGOs and local authorities. I emphasise that the consultation principles explicitly protect the compact with the voluntary sector, and we are well aware that the voluntary sector is one of those that are most actively concerned to be included in the consultation process. I reassure the noble Lord, Lord Goodlad, that the evidence presented to the committee will be taken into account in the review that the Government are about to undertake.
I say to my noble friend Lady Hamwee that the membership of the external advisory panel is currently being finalised, and will most likely include a representative from the National Audit Office. We will also take into account the committee’s recommendation that members should be drawn from the charity sector, from industry and from academia to represent a wide range of interests. As members of the committee will know, the review will begin after Easter and the panel will be announced then.
We take all the points made about avoiding holiday periods and the Christmas period into account. I am sure that the gamekeeper turned poacher that we have with us is well aware of occasions in the past when civil servants, and possibly even Ministers, have wished to use those sorts of expedients as ways of minimising the reality of consultation while going through the motions. Again, I suspect that that is a universal and secular habit of all forms of government, and it is part of what good legislatures should always be on the lookout for.
Baroness Smith of Basildon
I am sorry to interrupt. The Minister has made a great effort to answer the many questions that have been raised but, just before he sits down, there is one that I asked him a couple of times: what is the problem that the Government are seeking to address by changing from the 2008 principles to the ones that they brought forward in July?
Lord Wallace of Saltaire
I was saying that as we move towards greater interaction between government and citizen through digital means, the characteristics of consultation will change. I was also remarking that Governments have not been good enough—departments have not been good enough—at consulting with stakeholders at an early enough stage in the process. A formal consultation after you have taken the principal decision is itself sometimes bound to lead to disappointment for those who come in. We are trying to move towards a more flexible and faster system of consultation where appropriate. I hope that that provides an answer.
The review panel that will now be meeting will take fully into account everything that the committee has said and the evidence submitted to it. The panel will be reporting by the summer, and I expect and hope that, as a good legislative committee, this committee will then return to the subject and look at how satisfied it is by the review panel’s conclusions.
Lord Goodlad
My Lords, this has been an exceptionally interesting debate. Your Lordships’ House, as the Minister has indicated, is a veritable revolving door for poachers and gamekeepers, who are well represented here today.
Lord Chesterfield, in a letter to his son on the subject of women, wrote:
“A man of sense only trifles with them, plays with them, humours and flatters them, as he does with a sprightly and forward child; but he neither consults them about, nor trusts them with, serious matters”.
A bit later, when it was suggested to Arthur Balfour that he might consider the views of the Conservative Party conference on a particular matter, he said that he would rather consult his valet. However, times have moved on. There is now experience, custom, practice and indeed jurisprudence. I am grateful to the noble and learned Lord, Lord Brown, who was in his place until some time ago, for reminding me that the jurisprudence is summed up in the statement of the basic requirements for consultation originally formulated by counsel and adopted by the judge in R v Brent London Borough Council, ex parte Gunning in 1986, which was accepted and approved in courts thereafter. It says, first, that consultation,
“must take place at a time when proposals are still at a formative stage”.
Secondly, it says that,
“the proposer must give sufficient reasons for any proposal to permit of intelligent consideration and response”.
Thirdly, it says that,
“adequate time must be given for consideration and response”,
and, lastly, it says that,
“the product of consultation must be conscientiously taken into account in finalising any statutory proposals”.
That is the building block in the jurisprudence that no Government can afford to ignore. There is experience, custom, practice, jurisprudence, the 2008 code and, now, the review.
I am extremely grateful to all noble Lords who have participated in this debate and to the Minister for what he has said and the assurances that he has given. I have to say that what he said about the digital revolution did not encourage me. I hope that it resonates with the Government that there are an enormous number of people in our society, however many more come on to the web, who are not joining up to the digital system and never will, and they are going to live for a very great deal longer. Unless the Government understand that, they are going to get into a tremendous muddle, and so is everybody with whom the Government deal. I really hope that they will look at that a little bit more carefully.
We wish the Government well in their aspiration to improve consultation. As the Minister said, people throughout the country will join us in scrutinising their efforts and the committee will certainly join them in doing so. The proof of the pudding will be in the eating.