Ukraine Update
Lord Butler of Brockwell Excerpts(2 years, 8 months ago)
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Investigatory Powers Bill
Lord Butler of Brockwell ExcerptsWednesday 2nd November 2016
(8 years ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 68-I Marshalled list for consideration of Commons reasons (PDF, 78KB) - (1 Nov 2016)
Lord Butler of Brockwell (CB)
My Lords, I have been second to none in this House in supporting the importance of this legislation. I have taken part at various stages and have contributed in a minor way to its improvement. The powers it replaces do not expire until the end of the year. If the House of Commons again rejects —as I expect it will—the amendments that are being passed today and they come back to this House, I will not then support them, because I do not want to see the Bill delayed. However, this is an opportunity to show that this House believes strongly that the Government mean what they say about a proper consultation on the pursuit of Leveson.
I do not think I am alone in suspecting that the Statement made by the Government yesterday was a diversionary tactic. I hope it was not, but we have an opportunity today to show that this House really believes that this must be pursued seriously and that action must be taken—perhaps on a compromise basis—to achieve the objectives of the Leveson report.
Lord Wallace of Tankerness
To follow the point made by the noble Lord, Lord Butler of Brockwell, I think it important that the other place be given another chance to think about the Bill. To date, it has had only one opportunity to consider it, based on the amendments your Lordships’ House passed when the Bill was in this House. There will be another opportunity.
As has been pointed out by the noble Lord, Lord Rooker and noble Baroness, Lady Hollins, a number of Conservative Members yesterday during the questions following the Statement by the Secretary of State at the Department for Culture, Media and Sport indicated that they were not persuaded by the Government’s case for not yet implementing Section 40. Dr Andrew Murrison asked whether the Secretary of State agreed,
“that it would be reasonable to accept Baroness Hollins’ amendments”,
and Sir Gerald Howarth—not someone I am usually given to quoting with approval—asked:
“Does she not agree that a great virtue of the Leveson inquiry was that it took this whole contentious issue out of the hands of politicians; that by going for this consultation, which she will respond to, she is in danger of embroiling politicians in the issue again; and that low-cost arbitration has to be part of the solution?”.—[Official Report, Commons, 1/11/16; col. 806.]
So there is some indication that even on the Government Benches in the Commons, there are Members who are not persuaded of the Government’s position. I hope that one might describe it as a consultation of convenience that it came along when it did.
I will come back to that point but, on the point made by the noble Lord, Lord Pannick—which has been addressed by the noble Lord, Lord Butler—we know that the legislation which this Bill as a whole seeks to replace has a sunset clause. That clause is just under two months away; we have heard from the Minister that even if your Lordships vote for the Motion of the noble Baroness, Lady Hollins, today, it will be another two weeks until the House has the chance to consider it again. There is no urgency on the Government’s part to get Royal Assent this week.
It is also clear that the content of the Bill is in no way threatened by the amendments proposed by the noble Baroness. They are supplementary and do not detract in any way from the security issues which have been a matter of considerable debate on the part of your Lordships and, indeed, the House of Commons. They seek to address the very specific reasons that were put forward by Ministers and in the other place as to why this was not a suitable amendment. She has sought to, as it were, uncouple these amendments from the other parts of the Bill. They are supplementary and in no way detract from the security issues in the Bill.
As I indicated when we debated this matter on Report, for me what is important is that commitments were made to Parliament—to both the House of Commons and your Lordships’ House—back in March 2003, when various amendments were withdrawn: amendments to the Defamation Bill that your Lordships’ House had passed and amendments that had been tabled, I believe, to the Enterprise Bill and, in the other place, to the Crime and Courts Bill. They were withdrawn on a clear understanding that certain amendments going forward to the then Crime and Courts Bill would be implemented. I was part of the group who worked on the cross-party agreement, although I was not present when it was reached. Subsequently I also did much on a royal charter so that press regulation would be taken as far away from politicians as possible. The commitments made to Parliament are in jeopardy through the Government not implementing Section 40. More importantly, commitments were made to some of the victims of hacking. We should remember that the amendment we are discussing does not go as far as Section 40: it relates only to phone hacking. Along with the then Deputy Prime Minister, my right honourable friend Nick Clegg, I met the parents of Milly Dowler. Two things that struck me were their great dignity but also the great pain they had suffered. The Prime Minister gave commitments to them and other victims that there would be an inquiry, which took place, and that efforts would be made to ensure that such things did not happen again. These commitments trump any consultation. That is why I support the amendment in the name of the noble Baroness, Lady Hollins.
Investigatory Powers Bill
Lord Butler of Brockwell ExcerptsWednesday 19th October 2016
(8 years, 1 month ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 62-III Third marshalled list for Report (PDF, 153KB) - (17 Oct 2016)
“Offence of breaching safeguards relating to examination of data
(1) A person commits an offence if—(a) the person selects for examination any communications data obtained under a bulk acquisition warrant,(b) the person knows or believes that the selection of that data for examination does not comply with a requirement imposed by section 160, and(c) the person deliberately selects that data for examination in breach of that requirement.(2) A person guilty of an offence under this section is liable—(a) on summary conviction in England and Wales—(i) to imprisonment for a term not exceeding 12 months (or 6 months, if the offence was committed before the commencement of section 154(1) of the Criminal Justice Act 2003), or(ii) to a fine,or to both;(b) on summary conviction in Scotland—(i) to imprisonment for a term not exceeding 12 months, or(ii) to a fine not exceeding the statutory maximum,or to both;(c) on summary conviction in Northern Ireland—(i) to imprisonment for a term not exceeding 6 months, or (ii) to a fine not exceeding the statutory maximum,or to both;(d) on conviction on indictment, to imprisonment for a term not exceeding 2 years or to a fine, or to both.(3) No proceedings for any offence which is an offence by virtue of this section may be instituted—(a) in England and Wales, except by or with the consent of the Director of Public Prosecutions;(b) in Northern Ireland, except by or with the consent of the Director of Public Prosecutions for Northern Ireland.”
“Offence of breaching safeguards relating to examination of material
(1) A person commits an offence if—(a) the person selects for examination any material obtained under a bulk equipment interference warrant, (b) the person knows or believes that the selection of that material does not comply with a requirement imposed by section 179 or 180, and(c) the person deliberately selects that material in breach of that requirement.(2) A person guilty of an offence under this section is liable—(a) on summary conviction in England and Wales—(i) to imprisonment for a term not exceeding 12 months (or 6 months, if the offence was committed before the commencement of section 154(1) of the Criminal Justice Act 2003), or(ii) to a fine,or to both;(b) on summary conviction in Scotland—(i) to imprisonment for a term not exceeding 12 months, or(ii) to a fine not exceeding the statutory maximum,or to both;(c) on summary conviction in Northern Ireland—(i) to imprisonment for a term not exceeding 6 months, or(ii) to a fine not exceeding the statutory maximum,or to both;(d) on conviction on indictment, to imprisonment for a term not exceeding 2 years or to a fine, or to both.(3) No proceedings for any offence which is an offence by virtue of this section may be instituted—(a) in England and Wales, except by or with the consent of the Director of Public Prosecutions;(b) in Northern Ireland, except by or with the consent of the Director of Public Prosecutions for Northern Ireland.”
Investigatory Powers Bill
Lord Butler of Brockwell ExcerptsTuesday 11th October 2016
(8 years, 1 month ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 62-I(Rev)(a) Amendment for Report, supplementary to the revised marshalled list (PDF, 51KB) - (11 Oct 2016)
Lord Butler of Brockwell (CB)
My Lords, Amendment 58 and others in this group are also in the names of my noble friend Lord Janvrin and the noble Marquess, Lord Lothian. Amendments 58 and 59 are in fact consequential amendments. The substance is in Amendments 195, 203, 217 and 241, the purpose of which is to introduce specific penalties for misuse of powers concerned with bulk collection of data. Amendment 195 introduces penalties for the wrongful examination of material collected under bulk interception; Amendment 203 for the wrongful examination of bulk collection of communications data; Amendment 217 for the wrongful examination of data obtained from bulk equipment interference; and Amendment 241 for the wrongful examination of datasets collected in bulk. I make it clear that I do not believe that these powers are needed to deal with current abuse of powers by the intelligence agencies, nor because I expect the agencies to abuse the powers in the Bill in the future. I know enough of the agencies to know that their standards in these matters are high.
The reason for introducing these clauses is that the Bill gives exceptional powers, and the powers in respect of bulk collection have given rise to the greatest public concern. There are already specific offences for the misuse of other powers in the Bill; for example, targeted interception and access to communications data. Penalties for the misuse of equipment interference are covered by other legislation; for example, the Computer Misuse Act. However, at present there is no specific offence on powers which cause most concern to the public—the powers for bulk collection. For misuse of these powers, reliance would have to be placed on the general purposes in the Data Protection Act, on internal discipline or on the very general offence of misconduct in public office. There is clearly an unevenness here. The misuse of information collected under bulk powers should be subject to specific penalties like the misuse of other powers in the Bill. This matter was raised in Committee and I am glad to say that the Government have listened; we are very grateful for the discussions that have taken place.
I also make clear that it is no part of my intention that members of the intelligence agencies should be inhibited in their legitimate searches by fear that they may accidentally incur these penalties. Amendments 195, 203, 217 and 241 restrict the offence to cases where persons deliberately choose to examine material which they know or believe is not authorised under the Bill, so only deliberate misuse would be caught by these provisions.
I believe that these amendments are justified and that they introduce a proper balance into the Bill. I also believe that they satisfy the intentions of the Intelligence and Security Committee of Parliament, which drew attention to this unevenness. I am very grateful to the staff of the ISC and to the government Bill team for their help in formulating the amendments. I beg to move.
Lord Paddick
My Lords, I support the amendments for the very reasons that the noble Lord, Lord Butler of Brockwell, has just set out. Bulk powers are exceptional powers and they raise concerns among the public. There are specific offences in other parts of the Bill and in other legislation, and now we are focusing on deliberate abuse. I echo what the noble Lord, Lord Butler, said about the integrity of the security services, but we believe that these specific offences are necessary for public reassurance, if nothing else.
Investigatory Powers Bill
Lord Butler of Brockwell Excerpts(8 years, 2 months ago)
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“Offence of unauthorised examination of material
(1) A relevant person who, without lawful authority, knowingly or recklessly fails to comply with the safeguards referred to in section 142 is guilty of an offence.(2) In this section “relevant person” means a member of the intelligence services.(3) Subsection (1) does not apply to a relevant person who shows that he or she acted in the reasonable belief that he or she had lawful authority to engage in the activity to which subsection (1) relates.(4) A person guilty of an offence under this section is liable—(a) on summary conviction in England and Wales—(i) to imprisonment for a term not exceeding 12 months (or 6 months, if the offence was committed before the commencement of section 154(1) of the Criminal Justice Act 2003),(ii) to a fine, or(iii) to both;(b) on summary conviction in Scotland—(i) to imprisonment for a term not exceeding 12 months,(ii) to a fine not exceeding the statutory maximum, or(iii) to both;(c) on summary conviction in Northern Ireland—(i) to imprisonment for a term not exceeding 6 months,(ii) to a fine not exceeding the statutory maximum, or(iii) to both;(d) on conviction on indictment, to imprisonment for a term not exceeding 2 years or to a fine, or to both.”
Lord Butler of Brockwell (CB)
My Lords, in moving Amendment 201A I shall speak at the same time to the other proposed new clauses tabled in my name in the group, which have a similar purpose. These proposed new clauses would implement a recommendation of the Intelligence and Security Committee that misuse of the intrusive powers in the Bill should be subject to an adequate penalty. I think that that is a concern that is generally agreed with in the House.
I am aware that before the Summer Recess my noble friend Lord Janvrin moved Amendment 15, which sought to achieve this purpose. It would have done that by creating a single, overarching criminal offence for the misuse of any of the powers in the Bill. In response the noble and learned Lord, Lord Keen, speaking for the Government, argued against that proposed new clause on the grounds that a single overarching offence for the misuse of any of the powers covered by the Bill would not be appropriate since it would be a case of one size fits all.
Of course certain of the activities covered by the Bill have an appropriate offence for their misuse, such as the misuse of the powers of interception and access to communications data. Other activities such as equipment interference are already covered by offences in other legislation such as the Computer Misuse Act 1990. But it is a curious fact that there is a gap in relation to bulk powers, which is the subject we are debating today. Given that these bulk powers have been the cause of such concern in themselves, it is anomalous that the misuse of those powers should not constitute a serious offence and carry a suitably robust penalty. As the Bill stands, the misuse of these bulk powers merely constitutes a relatively minor offence under the Data Protection Act or in some cases it is only an internal disciplinary matter. Neither of those penalties would appear to be appropriate in the case of the misuse of these bulk powers.
It may be argued against these three proposed new clauses that they would have a chilling effect on members of the intelligence agencies, but I draw attention to the drafting, which states that the offence would apply only if:
“A relevant person … without lawful authority, knowingly or recklessly failed to comply with the safeguards”,
set out in the Bill, so this is not something that a member of the intelligence services would stumble into accidentally. In those circumstances, this is not something which need deter or prevent the satisfactory operation of the activities of members of the intelligence services. This would apply where there has been serious, knowing and deliberate misuse of the bulk powers in the Bill. It seems appropriate that in those cases a serious penalty should be applied. With that intention, I beg to move.
The Marquess of Lothian (Con)
My Lords, I rise briefly to support the noble Lord, Lord Butler, in these proposed new clauses. As a member of the Intelligence and Security Committee I can confirm that we felt very strongly that there was a gap here which needed to be filled. I am conscious of the fact that the major consideration behind this Bill was to create a balance between privacy on the one side and security on the other. The way we did that was by ensuring that the security aspects were well and properly covered, as indeed they are in terms of the bulk powers in this Bill, but equally that confidence on the privacy side was sufficient for people to accept that where they were misused there would be an adequate penalty against that. But looking at the Bill and the other offences that can be committed and the penalties available for them, in the case of bulk powers, which is what most of the public in the evidence we took in the ISC were concerned about, there seems to be a gap that is covered only by minor results of a criminal offence.
I suggest to the Government and to my noble and learned friend that whether or not he agrees completely with the precise criminal penalties suggested in the amendments, the principle of having a stronger set of criminal provisions relating to these powers should be considered very seriously.
Lord Rooker
This is probably a question for the noble Lord, Lord Butler, rather than anyone else. In subsection (2) of the proposed new clause,
“‘relevant person’ means a member of the intelligence services”.
I am pretty certain from the visits we did with the RUSI panel that other people are used for their expertise by the agencies who are not what you might call employees. I am not sure what the definition of “member” would be. When the noble Lord was drafting that or taking advice, did he consider that that covered everybody who was working in, as opposed to being an employee or member of, the intelligence services? I do not quite know; there could be a gap of people who are free riders.
I read David Anderson’s report only yesterday, but I did read all of it. On at least three occasions he mentions circumstances where people walked the plank; in other words, under the system operating now people who did something wrong either left the service or were sanctioned. It is not as though nothing is happening. It is not highlighted in there—it is buried away almost as an aside. But there have been at least three occasions where this happened. This is part of the reassurance there has to be for the public: who watches the watchers? That is what we have to sell on the privacy aspect, because we have to have it all secret or as much of it as possible secret. The public are being watched over—who is watching the watchers? If there are examples where incidents have occurred and people have walked the plank, those ought to be sufficient examples that the system is operating. I do not know whether or not new sanctions are needed, and I do not know whether this sanction would apply to everybody within the agency because not everybody there is an employee.
Lord Butler of Brockwell
My Lords, first, I will attempt to answer the questions of the noble Lord, Lord Rooker. The purpose of the reference to the intelligence services is that this is an activity of the intelligence services and it distinguishes that from the activities of the police or others. Only the intelligence services carry out these functions. On his second point, it is absolutely true, and I know from my own experience, that any misconduct of this sort within the intelligence services would be very severely dealt with and would be the subject of disciplinary action, usually leading to dismissal. The problem with that approach is that it is less than the criminal offences that are applied to other types of misuse of these powers. It is difficult to explain to the public why there should be that distinction.
In answer to the Minister, to whom I am grateful for his explanation, if we are providing reassurance to the public, we ought to have an offence that relates directly to the misuse of bulk powers. Other specific offences are referred to in the Bill, such as for the misuse of communications data or under the Computer Misuse Act. Why in the case of the misuse of bulk powers should we rely only on the general power of misconduct in public office? That is an anomaly.
I wish to make it absolutely clear that, like the noble Lord, Lord Paddick, and the Minister, I have complete confidence in the integrity of members of the intelligence services. That is not what is at issue here. What is at issue is having equal treatment for different types of offence—different types of abuse of powers—under this Bill. It seems to me that there ought to be an evenness in the approach to that, which is not at present in the Bill.
My noble friends and I and, I am sure, the Intelligence and Security Committee will consider carefully what the Minister has said, but I must reserve our right to return to this on Report.
Investigatory Powers Bill
Lord Butler of Brockwell Excerpts(8 years, 4 months ago)
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Baroness Hayter of Kentish Town
My Lords, I shall use the opportunity that arises from Amendments 140 and 146A to ask the Minister to clarify whether it really is the case that Clause 2 does not automatically affect every power in the Bill. If this was the case, we would be sympathetic to these amendments, as the privacy objective should be considered before any of the powers are used. My understanding was that Clause 2 was a general provision, which affected everything. Indeed, the letter of the noble Earl, Lord Howe, of 14 July to my noble friend Lord Rosser says, “The new overarching privacy clause sets out the privacy obligations which constrain the use of the powers in the Bill”. Our understanding had been that it covered the whole Bill, so I was slightly bemused by Amendments 140 and 146A—not helped by a briefing received, again very late last night, from the Equality and Human Rights Commission, which only ever sends out its briefings on the very eve of debate. That briefing says that Clause 2 does not cover it all, whereas my understanding was that it did. Perhaps this is the opportunity for one of the Ministers to make clear the situation.
Lord Butler of Brockwell (CB)
My Lords, I find the amendment moved by the noble Lord, Lord Paddick, difficult to understand. He made the point that the filter arrangement makes the operations of the police easier, but it makes them easier by ensuring that they do not inspect communications data which are not relevant to their purpose. It therefore protects privacy rather than threatens it. The filter is governed by the requirements of the rest of the Bill. It will apply the tests of necessity, proportionality and the protection of privacy. It is a protection of privacy rather than a threat to it.
Lord Keen of Elie
My Lords, Clauses 63 to 65 provide that the Secretary of State may establish, maintain and operate filtering arrangements for communications data—the request filter—and detail the appropriate safeguards and restrictions around its use.
Public authorities currently need to receive all the communications data disclosed by communications service providers in response to specific requests so they can determine which specific pieces of communications data are relevant to their investigation. Public authorities will sometimes need to make complex queries. For example, they may need to ask multiple communications service providers for data to identify an unknown person who is suspected of having committed a crime at three different places at different times. Currently, public authorities might approach communications service providers for location data to identify the mobile phones used in those three locations at the relevant times in order to determine whether a particular phone and a particular individual are linked to the three offences. This means the public authority may acquire a significant amount of data relating to people who are not of interest.
The request filter will mean that when a police force makes such a request, it will see only the data it needs. Any irrelevant data will be deleted and not made available to the public authority. The filter acts as a safeguard, as the noble Lord observed a moment ago, protecting privacy by ensuring that public authorities see only the data they need.
The joint scrutiny committee on the draft Bill stated:
“We welcome the Government’s proposal to build and operate a Request Filter to reduce the amount of potentially intrusive data that is made available to applicants”.
It believed that the requirement upon law enforcement to state the operational purpose for accessing data through the filter and the oversight of the Investigatory Powers Commissioner will ensure appropriate use of the filter.
Clause 64 makes it clear that the request filter may be used to obtain, disclose or process communications data only if the relevant authorisation specifically authorises that use. The designated senior officer must consider that, in addition to the necessity and proportionality concerns provided for in Clause 58, what is being authorised in relation to the filtering arrangements is proportionate to what is sought to be achieved. It also provides that the relevant authorisation must record the designated senior officer’s decisions on the use of the request filter. I therefore take issue with the suggestion from the noble Lord, Lord Strasburger, that the request filter could somehow be used to permit fishing trips, as he termed them. The request filter cannot permit such expeditions. The filtering arrangements can operate only in response to a specific, necessary and proportionate authorisation for the acquisition of communications data. In other words, that request must already have gone through all the existing communications data safeguards, such as authorisation by a designated senior officer. Indeed, the operation of the filtering arrangements will be overseen by the Investigatory Powers Commissioner. Clause 64 makes it clear that the request filter may be used to obtain, disclose or process communications data only if the appropriate authorisations have been made.
Clause 65 provides that the Secretary of State must ensure the application of the appropriate restrictions on the request filter, maintain adequate security measures with regard to the request filter, put in place procedures to ensure its effective functioning and report to the Investigatory Powers Commissioner regarding its functioning on an annual basis, including immediately reporting any significant processing errors. This again underlines the point that the commissioner will be overseeing the operation of the filter.
Iraq Inquiry
Lord Butler of Brockwell Excerpts(8 years, 4 months ago)
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Lord Butler of Brockwell (CB)
My Lords, it is a privilege to follow the noble Lord, Lord Campbell, with whom I had the pleasure of serving on the Intelligence and Security Committee. It is marvellous to see him bringing his wisdom to the deliberations of this House.
I have had plenty of opportunity to comment on the matters covered by the Chilcot report and so today I intend to be brief. Sir John Chilcot and his colleagues have taken a lot of stick over the past few years, so it gives me pleasure—but not surprise—that their report has been welcomed as a thorough and forthright one which has given satisfaction and comfort to relatives of the bereaved. If a quicker report had been required, the terms of reference should have been more limited.
Errors in the assessment and use of intelligence have inevitably received much attention. We need to remember that at the time when the Government produced their intelligence dossier in September 2002, virtually all the intelligence agencies in the world were assessing that Iraq had weapons of mass destruction and was seeking to acquire more. Hans Blix himself believed this when he took his inspectors to Iraq in November 2002. The problem was that this conclusion was based on relatively few sources and on inference, and the sources subsequently turned out to be unreliable.
As Chilcot says, the intelligence was presented with more certainty than was justified. But it was also a mistake to use it as a means of political persuasion. The Government were saying, in effect, “Don’t just believe us: believe the intelligence”. As countless examples from history show, intelligence is not uniquely worthy of belief: it is uniquely worth of scepticism.
However, this should not lead us to the conclusion that intelligence is valueless or stop us investing in it. In today’s world, intelligence is crucial. When we have weapons which can be directed to land on a sixpence, it is all the more important to know which sixpence to direct them towards. We need to learn the lesson that intelligence is a very valuable—indeed, indispensable—aid to political and military judgment, but it is not a determinant.
I have considerable sympathy for Mr Blair in the obloquy which is being poured on him. I have never believed that he lied to the British people, and I accept that he was sincere in believing that military action to remove Saddam Hussein was necessary as a last resort. The trouble was that he got caught in a trap in which a decision on whether or not to join the Americans in military action became unavoidable before other means of containing Saddam had been exhausted.
There is one more thing that I want to say. The Chilcot report paints a picture of a Government which—with great respect to those who served in it—as a collective entity was dysfunctional. The defence and overseas policies never met in the lead-up to the war. Plans were not shared with senior Ministers for fear that they would leak. The full legal reasoning of the Attorney-General was not made available to the Cabinet. Official papers were not circulated.
Proper Cabinet procedures should not be seen as pettifogging, bureaucratic impositions on busy Ministers. They are the means—inherited from successive generations of Ministers and officials—to ensure that the full expertise, experience and resources of government are brought to bear on crucial decisions. That is all the more important when the decisions are about peace and war. With hindsight, the Blair Government’s disregard for the machinery of government looks not like modernisation but like irresponsibility.
I am not so naive as to suppose that the interplay of personalities will not always play a part in politics, as in other human affairs, but one of the lessons of the Chilcot report is that when the great responsibility of governing the country is accepted by Ministers, their main duty is good government of the people, not personal political manoeuvring. If government is allowed to become a “Game of Thrones” it is the interests of the governed that will suffer. That lesson is going to be more important than ever in the difficult challenges that our Government are now facing today.
Tax Credits (Income Thresholds and Determination of Rates) (Amendment) Regulations 2015
Lord Butler of Brockwell Excerpts(9 years ago)
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Lord Butler of Brockwell (CB)
My Lords, I shall try to put my points briefly. I do not want anything that I say to be taken as implying a lack of sympathy with the concerns of those who have spoken about the effects of the Government’s policy. Like other Peers, I have had moving emails from many such people who expect to lose benefits through the statutory instrument. However, I want to confine myself to the constitutional issue. I usually agree with the noble Baroness, Lady Thomas, about statutory instruments. As has been pointed out, it is a very rare event that the Government are defeated on a statutory instrument; it has happened only five times since the war, but that does not mean that the House could not do it. But there is a combination here, because this is a statutory instrument about a budgetary matter central to the Government’s fiscal policy; it is that combination that is unprecedented, which is why it would be beyond the House’s constitutional powers to defeat the Government today.
Lord Thomas of Gresford (LD)
Would the noble Lord wish to amend the Companion to the Standing Orders and guide to the Proceedings of the House of Lords? It states:
“The House has resolved ‘That this House affirms its unfettered freedom to vote on any subordinate legislation submitted for its consideration’”.
Is this not subordinate legislation submitted for our consideration?
Lord Butler of Brockwell
What I am saying is that the combination of the convention about statutory instruments and the fiscal significance of this one is what makes it special.
Lord Butler of Brockwell
Any—but not since 1911 have a Government been challenged on a matter of this sort, which establishes what the constitutional conventions of the House of Lords are. In that respect—
Lord Richard
The noble Lord says that no Government have been challenged on a matter of this sort since 1911. However, in July 2008 there was a debate in this House on a statutory instrument, in which, after a discussion, the House came to a conclusion and voted down the Government’s suggestion, insisting that any attempt by the Government to raise national insurance had to be done by way of primary and not statutory legislation. Was that not also an example of a Government trying to pursue their financial and fiscal policies and the Opposition voting them down, saying that it had to be done not by statutory instrument but by primary legislation?
Lord Butler of Brockwell
I shall not contest the precedent given by the noble Lord, which I have not myself considered. The amendment proposed by the noble Baroness, Lady Manzoor, is, transparently, a fatal one; she agrees with that—and, in my view, it is outside your Lordships’ constitutional role. I note that my noble friend Lady Meacher agrees with that view. The amendments proposed by the noble Baroness, Lady Hollis, and my noble friend Lady Meacher, raise a more subtle issue. They are not fatal, but they seek to defer our consideration of the statutory instrument until the Government have done certain things specified in the amendment, including, in the case of the noble Baroness, Lady Hollis, surrendering some of the savings that would be achieved by this measure. But they are still blocking amendments. I can best demonstrate that by the following question. What happens if the Government refuse to do what the amendments demand? Will your Lordships then refuse to consider the statutory instruments for ever and a day? In that case, these amendments would block the statutory instrument indefinitely, which in my view is not within the—
Baroness Meacher
I point out to my noble friend Lord Butler that the House of Commons has a very similar request for Thursday: that House also wants more information, because Conservative MPs even now do not feel they have enough information to understand the full implications of these regulations. If the House of Commons votes for more information—in other words, says not to go ahead until we know what on earth is going on—would my noble friend then agree that that should be provided not only to the House of Lords but to the House of Commons?
Lord Butler of Brockwell
If the House of Commons asks for more information, it should be provided. But the constitutional position is that the House of Commons has passed this statutory instrument, and it cannot go back on that. Now what is at issue is whether the House of Lords should pass it, and however much sympathy the House may have for the objectives of those who have moved these amendments, it would be a constitutional infringement of great gravity to pass the first three of them. It would be wrong on three counts. First, this is a budgetary matter. It may be a welfare matter as well, but it is certainly a budgetary matter. Secondly, it is crucial to the fiscal policy that was explicit in the manifesto on which the Government were elected only a short time ago. Thirdly, the statutory instrument has been passed by the House of Commons, which has that responsibility in our constitutional arrangements. It has been passed not once but three times. I am afraid that I cannot find myself persuaded—
Lord Hughes of Woodside (Lab)
Would the noble Lord realise that he is turning his back and not addressing the House, and he should learn the procedures, given his experience?
Lord Butler of Brockwell
I am sorry, my Lords, and I apologise if I have committed a constitutional impropriety, but I still do not understand quite the point that the noble Lord makes.
I am afraid that I am not persuaded by the argument made by the noble Baroness that this House—
Baroness Farrington of Ribbleton (Lab)
I have worked in many roles, and I have listened to the noble Lord giving advice. I know that after this debate many members of the public will ask what an earth was going on in the House of Lords. Could the noble Lord answer the question: if the House of Lords today amended or voted down this statutory instrument, could the Government in the Commons bring back a one-word-change statutory instrument within the next few days? Secondly, would he care to comment on the following? I listened very respectfully to the noble and learned Lord, Lord Mackay, who used an expression that I could not understand. Could the noble Lord explain why the noble and learned Lord thought that it would be offensive for the Government just to choose to bring this item forward in primary legislation? I did not understand the reasoning, but I am sure the noble Lord does.
Lord Butler of Brockwell
My Lords, I think it is a little unfair of the noble Baroness to ask me to interpret the statements of the noble and learned Lord, Lord Mackay. They were perfectly clear. Can I just give the answers I was going to give about the point made by my noble friend Lady Meacher? I cannot be persuaded that this House would be failing in its democratic duty if we did not block this statutory instrument so that the House of Commons could have yet one more debate on it. It has had three already.
Baroness Manzoor
I am so sorry to intervene on the noble Lord. I have an observation. The director of the Institute for Government, Peter Riddell, who is greatly respected in Whitehall and Westminster makes the following point. Forgive me, it is rather long but I want to read it.
Lord Taylor of Holbeach
The House was listening to the noble Lord, Lord Butler.
Lord Butler of Brockwell
My Lords, I am afraid I have been rather frustrated in trying to put my points as briefly as I could, so let me put one final point. There have been many times in the past when there has been an opposition majority in your Lordships’ House, particularly when there has been a Labour Government. There have been many occasions when the Opposition have wanted to overturn the Government on a fiscal matter. It has not happened and in these cases the Opposition, recognising the conventions, have exercised self-restraint, bitten their lip and stayed within the constitutional conventions. I believe that the House should do that today.
Lord Richard
My Lords, in response immediately to what the noble Lord, Lord Butler, has just said, there was no doubt that the occasion in July 2008—I will go into it in a little more detail further on—was a fiscal matter. There was no doubt it was government policy and this House demanded that the Government should give it up and insisted that what the Government wanted to do could be done only by primary legislation and not by a statutory instrument. This has been before the House before and the House has done it before.
There are three major issues this House has to consider today. The first is whether financial privilege attaches to this proposition. The second is the effect of the way in which it proceeded through Parliament, and the third is whether any of the amendments is a fatal one.
Let us deal with the constitutional one because we have heard quite a lot about it this afternoon. I totally reject the suggestion made by the Chancellor that somehow or other a vote to postpone the operation of this resolution would be contrary to the financial understandings and conventions that exist between the two Houses. I do not think that is justified. The Government could have avoided these constitutional problems if they had wanted to, had they chosen to legislate for this matter by primary rather than secondary legislation. It would have been open to them to have included these proposals in the Finance Bill. Alternatively, they could have legislated by way of a short and separate Bill. Instead, they chose—it is a government choice, not an opposition choice or anyone else’s—to do it by secondary legislation. That inevitably curtailed debate both here and in the House of Commons and particularly in the country. Of course I accept that it has been dealt with in another place, but inevitably the national discussion has been truncated—to the point almost of extinction. There has been no consultation on transitional measures, nor on measures to alleviate the burden on the poorest—quite the contrary. None of these issues has been even discussed, let alone agreed. We do not know what, if any, transitional measures the Government might have in mind. The Government do not even have the excuse that it was all put before the country at the general election. It most certainly was not—quite the contrary. Considerable efforts were made to conceal the fact that this was the Government’s intention if they were re-elected. From the Prime Minister down we had Minister after Minister appearing in front of the television cameras and in the press saying it was nothing to do with tax credits and they would tell us what it was eventually. There was not a word in the Conservative manifesto about it. We are now told that in that situation this House willy-nilly has to accept what the Government say. What the Government are asking us to do is not acceptable.
Lord Butler of Brockwell
Surely there is an analogy with Finance Bills. They come to your Lordships’ House but we pass them without amendment because that is the constitutional convention, and that is similar to what we are being asked to do on this statutory instrument.
Baroness Hayman
I say to the noble Lord, Lord Butler, that the financial convention has not stayed absolutely the same for 300 years. The convention was that this House did nothing about the Finance Bill or, indeed, other economic measures. In 2000, we set up an Economic Affairs Committee. The House of Commons went into free-fall about encroachment on financial privilege. In fact, we were told that Gordon Brown, the Prime Minister at the time—I see the noble Lord, Lord Lisvane, nodding—was incandescent at the idea that there should be a sub-committee looking at the Finance Bill. However, those things happened and the world did not collapse. Financial privilege and the right of the Commons to have the final say was not impeded.
To my mind, this is a matter of very high and clear-cut politics, and of highly nuanced constitutional significance. Overall, I believe that the most important power of this House, while leaving the last word to the other place, is to ask it to think again, and I urge the House to use that power this evening.
Baroness Smith of Basildon
In some ways, the Minister makes my point for me. Major issues and changes such as this are undertaken in primary legislation—a case she made for what happened in 2002. It is unusual to make such major changes in secondary legislation. But let us leave that to one side, if we may.
Anybody in the real world listening to us talk today would wonder what on earth we are on about—primary legislation, secondary legislation, delegated legislation, affirmatives and negatives. What really matters is the impact it has and applying a common-sense approach to what is before us today. We know, as parliamentarians, that SIs are more normally used for that specific detail of legislation that we have passed already or for issues following primary legislation where the principle has already been approved into law. As I have said, they can be very properly used for normal uprating in tax credits, and I made the point about 2002 to the noble and learned Lord, Lord Mackay.
The proposal before us today goes way beyond that normal kind of uprating. It is a major policy change that, in the first place, the Government promised not to do. The route that the Government have chosen is not illegal or the wrong route, but there are consequences of taking it. If the Government try to truncate the process, so as not to have that full consideration in the House of Lords, yet at the same time allow this House, through the normal constitutional procedures of your Lordships’ House, to debate and discuss the proposal and the kinds of amendments that we have before us today, it is quite clear that the amendment from my noble friend Lady Hollis is not a fatal amendment, whatever the Minister and her colleagues may think. She has had advice from the clerks and has made numerous references. It is no good the Leader shaking her head at me; the evidence is there and it is very clear cut.
If the Government had gone down the normal route, they would have claimed financial privilege and we would not be here today, and there would have been further debates in the House of Commons. MPs from across the House privately, and now publicly, admit that this goes too far, too quickly and causes too much harm.
The amendment in the name of my noble friend Lady Hollis is what I refer to as the common-sense, practical approach. It can really make a difference and is in line with what most people in this country are asking for: 60% of the population today are reported to want to see a U-turn or change in this policy. That is what my noble friend is seeking to do. Her amendment calls on the House to reject these proposals as they stand and for Ministers to come back with a proposed scheme to protect those already getting tax credits for at least three years—that is all of them.
If the amendment is passed, what happens next? The onus is then on the Government to take the proposals away and reconsider. The Government can bring forward new proposals for consideration. The policy would not, as the noble Lord, Lord Butler, intimated, disappear into the ether—that is a matter for the Government. If they are committed to doing something, the Government can bring new proposals to your Lordships’ House or choose to bring forward new primary legislation. However, if they failed to bring anything back at all, it would mean that they could not proceed with these cuts, would have to look for another route and would have to reconsider their policy. No Government ever have the wisdom such that they are right all the time. This House is right to ask the other place and the Government to reconsider, to pause and to try to get it right.
Lord Butler of Brockwell
But it is a blocking amendment. Nobody can compel the Government to do what the amendment says, and if the Government do not, the House of Lords would be refusing to consider this Motion indefinitely.