Brexit: Withdrawal Agreement and Political Declaration

Debate between Lord Butler of Brockwell and Baroness Smith of Basildon

Wednesday 5th December 2018 Lords Chamber

[Baroness Smith of Basildon (Lab)]

My Lords, I am grateful to the noble Baroness the Leader of the House for opening a very important debate, and to the usual channels for facilitating what is effectively four days of debate across three days to ensure we have the opportunity to conclude our discussions prior to the vote in the other place.

Since the result of the referendum, as the noble Baroness referenced, this House has been constructive in examining the detail and implications of the UK’s departure from the EU. The clearest evidence of this is the many Select Committee reports on a range of subjects, such as trade and financial services, judicial and security co-operation, and Northern Ireland, which have brought enormous clarity to complex matters. When the Government were forced by the High Court to secure Parliament’s approval to trigger Article 50, your Lordships’ House passed just two amendments—on the position of EU nationals and the need for parliamentary debate—with a vote for MPs on the eventual deal. Although the Government opposed the amendments, they conceded the principle on both.

Our constructive approach has also been evident in later legislation. On the withdrawal Bill, some 160 hours of scrutiny led your Lordships’ House to pass an unprecedented 15 amendments for consideration by MPs. Despite the over-the-top protestations from some, this was clearly useful work. Our EU agencies amendment was accepted in full and others, including those on Northern Ireland and the meaningful vote, were accepted with some changes.

Your Lordships’ House, working across party lines to improve the legislation, secured almost 200 concessions, including crucial restrictions on delegated powers. We considered that there should be parliamentary oversight of the final arrangements, rather than our future relationship with the EU being approved with the stroke of a ministerial pen. This House agreed that we should debate the Prime Minister’s Brexit deal, but that the meaningful vote should be for the elected House. Any vote we have is an expression of our opinion as a second Chamber, and our debate over the coming days is in that context. It provides an opportunity for your Lordships’ House to continue to be constructive, analytical and forensic in consideration of the withdrawal agreement and the political declaration.

Following discussions and consultations, we have tabled a Motion in my name to provide an opportunity for your Lordships’ House to express its opinion on the outcome of the Prime Minister’s negotiations. I will speak to it now, but it will not be formally moved until the conclusion of our debate on Monday. I have just been informed that an amendment to my Motion has been tabled, although I have not had sight of it yet. I do not know what it says, but I hope that might become clearer in the next few days.

The aim of my amendment is to frame the next few days around three key issues that are at stake. First, as noted, it is for the elected House of Commons to determine this matter. When we debated the withdrawal Bill in this House, my noble friend Lord Monks tabled a successful amendment saying that the Prime Minister should obtain a mandate from Parliament for her deliberations with the EU. At that time the Government were adamant that Mrs May could not be constrained by Parliament, yet had she sought a parliamentary mandate then, even just for the basic principles, she might not be facing such an uphill and perhaps even impossible struggle. Yet as we heard from her last night, she has again conceded that principle. While it is exceptional, the Government are—probably as I speak—releasing their own legal advice, having been forced to do so by MPs. The House of Commons faces its most important Division for 75 years, so how could it have been against the national interest, as the Government then claimed, to provide MPs with vital legal information? I am pleased that, following last night’s vote, the Government have had to accept that they were wrong, but the Prime Minister just made her job harder.

Secondly, the Motion is clear that the option—or indeed the threat—of a no-deal exit is emphatically rejected. While some may fondly imagine that the only consequence of no deal is that we step back in time and pick up where we left off 45 years ago, the reality is so very different. The world outside has not been static, just waiting for us. To crash out of the EU without arrangements in place for co-operation on trade, agriculture and fisheries, crime and security, consumer and employment protections, energy and the environment would be grossly reckless and irresponsible. It would leave the country in the curious position of being outside the EU but having essentially to accept free movement, due to a lack of alternative immigration arrangements. It would leave our UK citizens in the EU without security in employment or in retirement. Initially, planes would be grounded and, regardless of the number of lorry parking spaces made available on our motorways, major ports would experience tailbacks and costly delays, with huge implications for the nation’s food security and exports. Our already overstretched police forces would no longer have access to EU databases but would be left to rely on patchy, outdated and cumbersome procedures for exchanging vital information on cross-border crime. The lack of certainty for businesses would have a hugely detrimental effect on our economy and investment. There are no circumstances in which a no-deal scenario could be of any benefit to the UK.

Thirdly, the Motion regrets that the Prime Minister’s negotiated settlement is inadequate. The Government initially argued against a transition or implementation period, claiming they had everything in place: it would all be done by March 2019. This deal proves how empty a boast that was. The Government are now forced to accept that such a breathing space is essential as they have not been able to reach agreement on multiple issues. The declaration outlines what both sides hope can be achieved, but it offers zero certainty. Should the deal we are debating be accepted by the other place, the Government would then bring forward what they call an implementation Bill, but nobody has any idea what it will be implementing. Our future economic prosperity, our security and our place in the world are all weakened by this agreement.

Since the publication of the political declaration, it has become clear that the envisaged trade and security relationship is below par. Even if the Prime Minister had got everything on her Chequers shopping list—and we should be clear that she is nowhere near—the result would be slower economic growth. There is no provision for a permanent UK-EU customs union, nor for continued participation in the European arrest warrant. While the EU has stated that the UK can enjoy an unprecedented level of third-country security co-operation, we have no idea whether we will have access to databases such as the second-generation Schengen Information System. On Northern Ireland, the Prime Minister produced a backstop that literally nobody is happy with—not her Back Benchers, not the DUP and certainly not the Labour Party.

What does the Prime Minister’s deal offer us? It is a wish list, with decisions to be made later. In the words of the latest Brexit Secretary,

“we have agreed to strike an ambitious new flexible and scalable relationship that allows us to combine resources worldwide for maximum impact”.

If only there was some existing international organisation that allowed the UK to maximise its contribution to global affairs. The deal before us represents a blind Brexit, with no certainty or clarity for the future. It does not deserve our support.

When the Prime Minister claims it is the best deal, what she means is that it is the best deal she has been able to negotiate. Those red lines Mrs May set at Lancaster House were never a great starting point for a strategy. Throughout, she has sought to appease one or other of the rival factions in her party. In a Statement last week, the Lord Privy Seal described Brexit as,

“building a brighter future of opportunity and prosperity for all our people”.—[Official Report, 26/11/18; col. 503.]

On what basis can that claim be made? What is the evidence? Where is the detail?

The Government’s economic analysis was modelled on a White Paper produced post-Chequers. That is not even government policy any more. We have been told that countries are queueing up to sign trade deals with us. However, the US President clearly thinks otherwise. The Prime Minister’s most positive interaction at the G20 summit was meeting her Japanese counterpart who, echoing our Motion today, pleaded with Mrs May to rule out no deal. The Chancellor of the Exchequer admitted that the deal leaves us worse off, saying:

“There will be a cost to leaving the European Union, because there will impediments to our trade”.


The options being presented by the Prime Minister are her deal—which would leave us worse off—or a catastrophic no deal. That is a Hobson’s choice, and not one that any responsible Government should ever seek to force their Parliament to take.

Let us be very clear: the Government have mismanaged this entire process. Every time there has been a fork in the road with decisions to be made on the direction ahead, the Prime Minister has taken the wrong turn. No responsible Government would ever trigger Article 50 without having some kind of blueprint for negotiations and ensuring buy-in from Parliament. No responsible Government would ever alienate their closest allies before talks had even begun by refusing to protect the rights of their citizens who have made this country their home. Surely, no responsible Government should ever talk up the chance of falling off a cliff-edge, forcing businesses to implement contingency plans that result in the loss of UK jobs.

It is little wonder the Prime Minister is living life on the edge, taking each week—or rather each day—as it comes, or that our country is so divided. That division is not the only tragedy of Brexit. Imagine if that energy, intellect, enthusiasm and money had been channelled into some of the great issues of our time: eradicating homelessness and poverty, tackling climate change, preventing disease and resolving conflict. For the first time since the Second World War, we have generations of young people without the hope, optimism or confidence in the future that their parents and grandparents had. Whatever the eventual outcome of the wider debate on Brexit, there is an obligation on all of us to address that and prove that the current state of our political life is not the norm. Parliament and politics should and must be a force for good.

The public were promised outcomes that were never realistic. Over the next few days, your Lordships’ House will do what it does best: scrutinising the agreements and highlighting the many issues and inconsistences within them. On Monday, before the Commons takes its own binding decision, I will ask your Lordships’ House to vote on the Motion standing in my name. There are just three points: first, it is for MPs to make the decision; secondly, no deal can never be an option; thirdly, even if the Prime Minister thinks it is the best deal she can get, it is inadequate. We hope our debate, the evidence we have already provided through our Select Committees and the work of our EU committee will be useful to MPs as they deliberate. As part of being helpful to the other place, we hope your Lordships’ House will want to express the view that the Prime Minister is wrong to impose this as a choice between her deal or no deal.

[Lord Butler of Brockwell (CB)]

My Lords, before the noble Baroness sits down, I apologise that I was not able to give her more notice of the amendment I have put down to her Motion. For reasons I shall give when I speak, I wholeheartedly go along with the first two legs of her Motion, but I cannot agree with the condemnation of the draft agreement in the last part.

[Baroness Smith of Basildon]

I am sorry that the noble Lord was not able to speak to me before. However, the point I am making does not differ from his, and I stand by it: the deal offered by the Prime Minister is inadequate.

Tax Credits (Income Thresholds and Determination of Rates) (Amendment) Regulations 2015

Debate between Lord Butler of Brockwell and Baroness Smith of Basildon

Monday 26th October 2015 Lords Chamber

[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.

Proposed Changes to the Standing Orders of the House of Commons

Debate between Lord Butler of Brockwell and Baroness Smith of Basildon

Tuesday 21st July 2015 Lords Chamber

[Lord Butler of Brockwell (CB)]

My Lords, I beg to move the Motion standing in my name on the Order Paper, and I shall do so briefly.

The purpose of this Motion is to enable the House to ask for a Joint Committee of both Houses on the Government’s proposals on English votes for English laws. I should first repeat that I welcome the fact that the Government are grasping the nettle of English votes for English laws. At the same time, it seems to me undeniable that their proposals are not just procedural but raise serious constitutional issues. They give a subset of Members of the House of Commons—English or English and Welsh Members—a right of veto on legislation which Parliament would otherwise pass. It seems to me right that Scottish MPs should not have the power to determine legislation affecting only England, or England and Wales, but the Government’s proposals are not the only way of achieving that. The McKay commission and the Democracy Task Force, chaired by the right honourable Kenneth Clarke MP, both suggested simpler and, in my view, less objectionable alternatives which ought to be seriously considered by Parliament.

There are many other problems with the Government’s proposals. The noble Baroness, Lady Boothroyd, has raised her concern that they require the Speaker in another place to make determinations which will be politically controversial and, as the noble and learned Lord, Lord Judge, has said, could cause the privileges of Parliament to be challenged in the courts. Others have argued that the right way to deal with matters of this constitutional importance is by legislation, not by changes to Standing Orders in the House of Commons. That is a view which I share.

When people with experience and expertise from such a different range of perspectives as the noble Baroness, Lady Boothroyd, the noble and learned Lord, Lord Judge, and the noble Lords, Lord Norton of Louth, Lord Forsyth, Lord Lisvane and Lord Reid, all express concern about the Government’s proposals, these concerns demand serious examination. It would not be sufficient to have a debate in which concerns can be expressed but not resolved before the Government rush the proposals through in September by a vote of the majority in another place. At present, when there is both a Conservative majority in the House of Commons and a Conservative majority in England and Wales, the problem is not urgent. Surely it is more important to get the proposals right than to rush them through.

This House has great experience and expertise to contribute on this matter. The proposal for a Joint Committee of both Houses did not originate in this House. It was made by the opposition spokesman in another place. The purpose of this Motion is to enable our House to support it and to indicate our willingness to take part. I beg to move.

[Baroness Smith of Basildon (Lab)]

My Lords, I rise briefly in support of the Motion of the noble Lord, Lord Butler of Brockwell. He helpfully raised this issue last week in a QSD that he introduced, so the noble Baroness and the Government have had an opportunity to consider it.

I should be clear: we do not see this Motion as challenging the principle of what the Government are seeking to achieve—I am sure that that is not its intention. That is not our role or, as a House, our responsibility. However, it is our role as a revising and scrutinising Chamber to consider the implications of proposed changes for how we as a Parliament operate, and whether changes being proposed have any implications not just for how we do business but whether they impact negatively on our work.

Palace of Westminster Committee

Debate between Lord Butler of Brockwell and Baroness Smith of Basildon

Thursday 9th July 2015 Lords Chamber

[Baroness Smith of Basildon (Lab)]

My Lords, on a point of clarity with regard to the first issue of the Joint Committee of the Lords and Commons, my understanding, from all the conversations I have had with the noble Baroness the Leader of the House, is that there will be completely equal representation between both Houses. I think that she has heard the mood of the House—that is what this House expects. I think she said that that was likely, but she did not give the guarantee that the House is seeking. Can I therefore press her, because that is my understanding of the present situation anyway, to give a guarantee that there will be equal representation between both Houses?

On the noble Baroness’s second point, in which she responded to my noble friend Lord Grocott, as much as we welcome the QSD in the name of the noble Lord, Lord Butler, next week on 16 July, that does not replace the need for a proper debate on the proposals for English votes for English laws, which impact on the work of your Lordships’ House. It is all very well for the noble Baroness to say, “We are not affected by it”, but we are. It affects how legislation is conducted in Parliament, and we are part of that process. I know that when she responded to the debate on the Statement the Government made last week she rejected the notion, but she will have heard that noble Lords across the House are very concerned at the lack of debate in this House on that issue, and I urge her to reconsider. It is the view of the Official Opposition and, I think, of other noble Lords around this House, that there should be a full debate, perhaps on a Motion that can be divided on as well. To deny this House the opportunity to debate this in government time is totally unacceptable.

[Lord Butler of Brockwell (CB)]

Further to the point made by the Leader of the Opposition, I understand that in another place the Government have decided not to go ahead with the changes to Standing Orders next week but to have a two-day debate on them. Does that not strengthen the case for there also being a full debate in this House, in addition to the Question for Short Debate?

Counter-Terrorism and Security Bill

Debate between Lord Butler of Brockwell and Baroness Smith of Basildon

Wednesday 4th February 2015 Lords Chamber

[Lord Butler of Brockwell]

The way the noble Baroness talked about the relationship between the independent reviewer and the board underlines the importance of the point made by the noble Lord, Lord Thomas, about clarifying whether the board is to be supportive or consultative. She talked as if the board was going to be part of the support staff for the reviewer, which would be excellent—but in that case, it is rather funny to call it a board. Why not just call it his staff?

[Baroness Smith of Basildon]

I think that there is probably an element of face-saving in calling it a board. The amendment makes clear that it would act under the,

“direction and control of the Independent Reviewer”.

So he can make of the board—or whatever you want to call it—what he will. That is an opportunity for him, and I am sure that he will not be slow to take it.

Data Retention and Investigatory Powers Bill

Debate between Lord Butler of Brockwell and Baroness Smith of Basildon

Thursday 17th July 2014 Lords Chamber

[Lord Butler of Brockwell (CB)]

My Lords, I rise in defence of the Minister because the Intelligence and Security Committee discussed this point with the director of GCHQ on Tuesday morning in the short time available. There have been developments since 2012 that have affected the attitude of the providers—for example, the activities of Mr Snowden. The committee was satisfied that there is a serious risk of loss of visibility of people who ought to be under observation and that the Government’s arguments that this is an urgent matter were justified.

[Baroness Smith of Basildon (Lab)]

My Lords, I rise briefly because I think that perhaps my noble friend Lord Davies has been misunderstood. I do not think that he doubts for one instant the emergency situation that necessitates this legislation. His argument is that the Government could have acted sooner. I will not enter into a debate as we had a long debate yesterday, but it remains our contention that the Government could have acted sooner on this issue. But there is a time imperative now on this legislation.

Northern Ireland (Miscellaneous Provisions) Bill

Debate between Lord Butler of Brockwell and Baroness Smith of Basildon

Monday 3rd February 2014 Lords Chamber

[Lord Butler of Brockwell (CB)]

My Lords, I was one of those contacted by the chairperson of the Northern Ireland Civil Service Commissioners about this matter and I support the amendment. As the noble Lord, Lord Empey said, this is a simple matter. It really should be straightforward and I cannot see that there can be a serious objection to the amendment that the noble Lords, Lord Empey and Lord Alderdice, have tabled.

In the Constitutional Reform and Governance Act 2010, the provision was made to enshrine in statute the obligation of the Civil Service Commissioners that appointment to the Civil Service should be on merit following fair and open competition. We have always taken that as a constitutional principle of our Government. That Act did not apply to Northern Ireland—not that it was deliberately excluded for any particular reason, but it simply did not apply. However, exactly the same principles should apply, and I think everybody would want them to apply, to the Northern Ireland Civil Service. Indeed, because of the divided history of the Northern Ireland community there is a particularly strong reason why they should apply.

I was very pleased to hear what the noble Lords, Lord Empey and Lord Alderdice, said, because over many years I worked with members of the Northern Ireland Civil Service, as it were from the inside rather than working with them from a political perspective. My experience was exactly the same as theirs, as I would have expected: that members of the Northern Ireland Civil Service were politically impartial and appointed on merit. It took 150 years before these principles of fair and open competition were embodied in statute in Britain, following the Northcote-Trevelyan report. Once they have been embodied in statute, it seems to me that the same thing should be done for Northern Ireland, and before a question of devolving this function should take place. I strongly support the amendment. I hope the Government will say that they see no objection to it.

[Baroness Smith of Basildon (Lab)]

My Lords, I am grateful to the noble Lords who have spoken on this. I too support the principle of the amendment before us. It is a very important principle. I was also contacted by the Northern Ireland Civil Service Commissioners and they make a powerful case. They were established, as noble Lords will know, by the Civil Service Commissioners (Northern Ireland) Order 1999. The principle is that a person shall not be appointed a situation in the Civil Service unless a selection is made,

“on merit on the basis of fair and open competition”—

the merit principle. The commissioners have the power to consider, make decisions, and have appeals made to them under the Northern Ireland Civil Service code of ethics, and their notepaper says:

“Ensuring appointment on merit and safeguarding ethics”,

which is, indeed, their role.

Noble Lords from different backgrounds have made important points, and I will also make a point, having served as a Minister in Northern Ireland and in Whitehall. The Northern Ireland Civil Service is a much smaller unit. Everybody knows everybody else in Northern Ireland, and sometimes it seems—I am sure that other noble Lords will confirm this—that everybody knows everything about everybody else in Northern Ireland. Many senior Northern Ireland civil servants had a profile that was not known here in Whitehall, but they were known across Northern Ireland in their respective roles as Permanent Secretaries. Therefore this is not just about things being done in the right and proper way and about there being impartiality; the perception of impartiality must also be there for all those who are appointed, and for others.

Justice and Security Bill [HL]

Debate between Lord Butler of Brockwell and Baroness Smith of Basildon

Monday 19th November 2012 Lords Chamber

[Lord Butler of Brockwell]

My Lords, this amendment is in my name and that of the noble Marquess, Lord Lothian. I shall couple with it Amendment 23. I am grateful to the Opposition, who have given their support to these amendments. They relate to circumstances in which the ISC may consider operational matters. At the moment, these are defined in Clause 2(3), which states:

“The ISC may … consider any particular operational matter but only so far as the ISC and the Prime Minister are satisfied that

(a) the matter—

(i) is not part of any ongoing intelligence or security operation, and

(ii) is of significant national interest, and

(b) the consideration of the matter is consistent with any principles set out in, or other provision made by, a memorandum of understanding”.

The problem is that that is too restrictive, but I want to make clear at the outset that the ISC does not aspire to consider current operational matters unless the Government have some particular reason for asking it to.

The reason why the wording is too restrictive is that at present there are three tests that have to be passed by an operational matter for the ISC to continue to consider it. The first is that it,

“is not part of any ongoing intelligence or security operation”.

The second is that it,

“is of significant national interest”.

The third test is that,

“the consideration of the matter is consistent with any principles set out in, or other provision made by, a memorandum of understanding”.

However, the preface to that is that the ISC and the Prime Minister must be satisfied that those conditions are met. That would curtail the present operations of the ISC considerably.

I shall cite one example. When the SIS operation in Libya went so badly wrong and it got into the newspapers, the first thing that happened, quite rightly, was that the chief of SIS wrote a letter to the committee to explain what had gone wrong. If the words of this provision were taken literally, he could have done that only if he had first cleared his lines with the Prime Minister. I could repeat lots of examples of matters where something appears in the press and the heads of the intelligence agencies then report to the ISC. However, the provision says that before any operational matter can be considered, the Prime Minister has to be satisfied that the three tests are passed. My first amendment would omit the words,

“the ISC and the Prime Minister are satisfied that”,

so that the provision would read, “The ISC may consider any particular operational matter but only so far as” the three tests were passed. In other words, it would remove the hurdle of satisfying the Prime Minister, which certainly does not apply at the moment. To have to satisfy the Prime Minister in each case would add a new and cumbersome bureaucratic procedure, which I doubt very much that the Prime Minister would welcome, let alone the ISC.

Doing that alone, however, is not sufficient, and that is where Amendment 23 comes in. That amendment says that the three tests would have to be passed before the ISC could consider an operational matter, and one of those tests would be that it was not part of any ongoing intelligence or security operation.

As I said, the ISC has no aspiration to consider an ongoing operation, unless the Government ask it to. It normally looks at operations retrospectively, but there are circumstances in which it suits the Government to ask the ISC to look at an ongoing operation, so Amendment 23, which my noble friend and I have tabled, states:

“The ISC may, notwithstanding subsection (3), consider any particular operational matter if the relevant Minister of the Crown agrees to consideration of the matter or it is consistent with the memorandum of understanding”.

An example of where this was necessary was cited by the noble Lord, Lord King. When he was chairman of the committee, it was asked by the Home Secretary of the day to consider the Mitrokhin case. That was a circumstance in which it suited the Government to ask the ISC to consider that operational matter. It would be very quixotic if the ISC had to say to the Government, “Sorry, you may have asked us to look at this matter because it would help you, but I am afraid we’re not allowed to because there is an absolute ban on it in the Bill”.

The purpose of these two amendments is to give more flexibility to the Government about the circumstances in which the ISC may look at an operational matter. It is not the ISC’s wish, in normal circumstances, unless the Government want it to, to look at matters retrospectively. The purpose of this amendment is to increase the flexibility which has been removed by the current drafting of the Bill. I beg to move.

[Baroness Smith of Basildon]

As noble Lords will see from the Marshalled List, we have added our names to Amendments 18 and 23, as the noble Lord, Lord Butler, noted, and we have also tabled Amendment 24 in this group.

The noble Lord, Lord Butler, has proved a worthy proponent of his Amendment 18, which would return the procedure for determining whether a matter should be considered by the committee back to the status quo by removing the requirement for the committee to seek the approval of the Prime Minister before making any such decision. It seems absolutely clear that the committee is bound in statute to abide by the remit set out in Clause 2 and it should not have to seek the approval of the Prime Minister to determine that it had done so. I agree with the members of the ISC and the noble Lord, Lord Butler of Brockwell, who have argued that not only is this overly bureaucratic but it is a step backwards from the current position where the committee itself determines, on the basis of given criteria, whether a matter falls within its remit.

Amendment 23, to which we added our name, and Amendment 19, which was tabled by my noble friend Lord Campbell-Savours, address the same point, but in a slightly different way. The Bill reflects the status quo by incorporating operational matters, which the committee has been de facto undertaking for some time, into the formal remit of the ISC. However, it seems overly prescriptive for the Bill expressly to prohibit the committee from reviewing ongoing operational matters. All Members of your Lordships’ House fully accept that there are security issues to do with reviewing operations that are current and may risk compromising individuals involved. However, there may be rare cases where an operation carries on for a long time and, despite the risk being minimal, it is still considered current by the standards of the Bill. It seems much more reasonable to make a general stipulation against the review of ongoing operations but to allow the committee to review such matters in special circumstances if it has the express consent of the relevant Minister.

Opposition Amendment 24 is a repeat of that tabled by my noble friend Lord Campbell-Savours in Committee. It would require the ISC to consider a request by a Select Committee to review a certain matter related to the ISC’s remit as well as any request to provide the Select Committee with information. It should be clarified that under no circumstances would the amendment require the ISC to act on any such request from a Select Committee, for instance, to disclose sensitive information or that simply would prove to be unmanageable for the committee’s workload. It would be a request. However, fostering greater communication and collaboration of Select Committees in Parliament could be only a positive development for the ISC.

--- Later in debate ---

[Lord Butler of Brockwell]

My Lords, this may be the last amendment that we consider this evening. I can move it very briefly indeed because I am very grateful to the noble and learned Lord, Lord Wallace, for putting his name to it and therefore take it that we are pushing at an open door. This amendment would remove the words “a draft of” in relation to the report submitted to the Prime Minister. The committee does not and never has submitted a draft of the report; it submits its report. The Prime Minister can then ask for certain redactions to be made before it is published. However, it is by no means provisional. I take it from the fact that the noble and learned Lord, Lord Wallace, has put his name to this amendment that the Government will accept the removal of the words “a draft of”.

[Baroness Smith of Basildon]

My Lords, since we are considering the last group of the evening, I confess to being envious of the noble Lord, Lord Butler. I have been in your Lordships’ House a relatively short time in comparison with him, but I have never had an amendment signed by both the Official Opposition and the Government. I congratulate him on that achievement.

There is not very much that I can say on this amendment that will not be said even better by others. However, I will say something regarding our Amendment 27. This is a revised version of an amendment which I tabled in Committee. This amendment would amend the grounds on which the Prime Minister may exclude matters from the annual reports. These are currently broadly defined in the Bill as that which the Prime Minister considers,

“would be prejudicial to the continued discharge of the functions of the Security Service”.

It goes on in that vein. We have argued that the primary reason for the Prime Minister to request the redaction of material contained within the annual report should be on the basis of national security, or that it risks a disclosure of sensitive information as defined in the Bill. Again, we have reservations that the reason given in Clause 3(4) is a bit of a catch-all provision which allows the Prime Minister to prohibit the publication of material perhaps considered too critical and which may damage the reputation of government agencies.

Of course, we acknowledge that there may be circumstances in which the Government will need to prevent the publication of material. That may not be only on the basis of national security or the sensitivity of information. It could also be where the information might threaten the UK’s economic interests. However, it would be better to make such additional criteria transparent and accountable, in order to prevent any misrepresentation of the role of the Intelligence and Security Committee. Amendment 27 allows the Prime Minister to prohibit publication on grounds in addition to national security and the sensitivity of information, along the lines defined in the Bill, but also requires that the scope of the information must be set out in the MoU with the Intelligence and Security Committee. It is a moderate and reasonable amendment and I hope that the Minister will give it his consideration.

Justice and Security Bill [HL]

Debate between Lord Butler of Brockwell and Baroness Smith of Basildon

Monday 19th November 2012 Lords Chamber

[Baroness Smith of Basildon]

My Lords, much of the debate regarding this amendment was covered in the debate on the previous group of amendments. I will therefore keep my comments brief. We put our names to the amendments proposed by the noble Lord, Lord Butler, and the noble Marquess, Lord Lothian. We considered that the arrangements that they are proposing for the ISC, which is a variation of a statutory parliamentary committee, to be the next best option were the Select Committee option to fail.

In the previous debates, I referred to a committee being strengthened in its independence by the privileges and status afforded by being a creature of Parliament rather than a creature of the Executive, while retaining robust safeguards over the constitution and the work of the committee in the interests of national security. The idea of a security committee that is covered by parliamentary privilege and also bound by safeguards established by statute is of course attractive, as it would give the absolute guarantee needed on issues such as the disclosure of sensitive information and the appointment of members. However, my concerns lie—the noble Lord, Lord Butler, also acknowledged these deficiencies—with the argument raised by my noble friend Lord Campbell-Savours that parliamentary privilege conferred in this way would be suspect and potentially challengeable in the courts. That makes me nervous and I am sure that it makes other Members of the House nervous. If my noble friend is right that the present statutory committees of Parliament are not covered by privilege, it is difficult to see how statute can provide for it in this case, for the fundamental reason that the committee will not be a fully fledged body of Parliament.

In Committee, the noble Lord, Lord Henley, said that discussions would take place. The noble Lord, Lord Butler, referred to that. I am very concerned that, if I understand correctly, the noble Lord, Lord Butler, said that no discussions on the issue have taken place with the Government. There is an overwhelming desire on all sides of the House to get the issue right.

[Lord Butler of Brockwell]

Perhaps I may do justice to the Government. There have been discussions. My complaint is that they do not seem to have reached a conclusion.

[Baroness Smith of Basildon]

I do not know whether that is better or worse. It is disappointing that the Government have not been able to reach a conclusion, given the overwhelming desire on all sides of the House to get this right and to ensure that the committee has the privilege that it will need to do its job properly. I remain concerned about the process that is being used. I wait with interest to hear what the noble Lord will say about the consequences of pursuing parliamentary privilege in this way. Without assurances that the committee will have full privilege, I will have serious reservations about the viability of the proposed amendments, despite the fact that I fully support the aims behind them.

--- Later in debate ---

[Baroness Smith of Basildon]

My Lords, as ever, my noble friend Lord Reid has summed up the point I was making. The Minister did not refer to an emergency situation but to departments that would not have a Secretary of State and therefore it would be downgraded. It is entirely appropriate to ask that a decision as serious as to withhold information from the ISC should be taken only at the highest levels in government, and that means the level of Secretary of State.

[Lord Butler of Brockwell]

My Lords, I also support the amendment. It is no answer to say that if the information is held by the Cabinet Office, where there is not a Secretary of State, it should be at some other level. Any intelligence information held by the Cabinet Office will belong either to the Home Office, the Foreign Office or some other department where a Secretary of State is responsible. It is not the case that provision ought to be made for an exception where the Cabinet Office is involved. I support the amendment moved by the Opposition.

[Baroness Smith of Basildon]

My Lords, I should like to test the opinion of the House.

Justice and Security Bill [HL]

Debate between Lord Butler of Brockwell and Baroness Smith of Basildon

Monday 9th July 2012 Lords Chamber

[Lord Butler of Brockwell]

I accept that, and we will be coming to some other amendments where I will be arguing that we should have our cake and eat it. We are entitled, however, to have our cake and eat it. For the reasons I have been arguing, I do not think that it is advantageous to have this as a Select Committee because I do not think it can be like any other Select Committee. I do think, however, that it requires special arrangements to give it the privileges of a Select Committee, and I do not withdraw that argument.

[Baroness Smith of Basildon]

My Lords, the noble Lord, Lord Campbell-Savours, has done this Committee a service in degrouping his amendments. It is a broader and deeper debate than the one we had on the first two amendments. It has been extremely helpful. The noble Lord, Lord Elystan-Morgan, hit the nail on the head when he described it as a useful debate with a lot of consensus. I disagree with the noble Baroness, Lady Hamwee, who said this was a polarised debate. I am not convinced that it is. This is less about what we expect the ISC to do and how we expect to do it than the structure that can best achieve those objectives. There seems to be a fair amount of agreement on the kind of objectives we are seeking. I wrote down a couple. The idea of a veneer of expertise has now been firmly laid to rest. I hope that we will not hear that expression again either in your Lordships’ House or outside. I was intrigued when the noble Lord, Lord Deben, mentioned to the Minister the comments from civil servants. I felt the ghost of “Yes Minister” creeping into our debates. Civil Service Ministers sometimes have to make a decision and challenge civil servants on some issues.

The areas of broad agreement were the independence from the Executive and the issue of parliamentary privilege. I thought the comment of the noble Lord, Lord Campbell-Savours, about the power to take evidence under oath was a powerful one. Security of information caused considerable concern for those who are not keen on having a Select Committee structure but who also, like the noble Lord, Lord Campbell-Savours, want to protect security of information if there is any question on that. There is the same point even if the structures are different.

The issue of public hearings came up. I am not sure how relevant that is in terms of structure in that amendments have been tabled about the kind of public hearings there could be and what form they could take. My own view is that they are valuable. They certainly should never be automatic but we have that debate coming up. I am unclear whether a Select Committee would have to have public sessions unless the Committee wanted to have it. It is the best structure for achieving that.

We have also heard from a number of noble Lords about ensuring public confidence in whatever structure the Government decide to go ahead with. It was helpful that in the last debate the Minister, if I understood his words correctly, said he wanted to look at the best means of achieving these ends and consider all implications. I hope he can say that in the context of this debate as well. It has been a broader debate in that noble Lords have been thinking carefully about powers, independence and structure, and I hope the Minister finds that debate and those comments and views helpful.

Public confidence is an issue to take into account. It can be well served by public hearings or it can be badly served by public hearings, and we will debate that further today. Public confidence does have an impact on how sensitive or highly confidential information that is relevant to national security is dealt with. So I am interested in what the Minister has to say. I hope that he will take on board all the comments made in the last debate and in this debate. I hope that he is smiling because he agrees with me rather than because he is amused by what I said. I hope that he will say—as I hope I would say if I were sitting in his seat—that he will take this away and take into account not only the comments that were made in the previous debate but the wide range of views expressed in this debate. They are moving in the same direction and seek that, whatever structure the Government want to proceed with, the comments of the House should be taken into account to ensure that the Government get it right, protect national security, safeguard sensitive information and also secure parliamentary independence and public confidence.