Deregulation Bill
Lord Dubs Excerpts(9 years, 7 months ago)
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Lord Deben
My Lords, I believe that my noble friend will realise that my earlier intervention had a degree of mischievousness to it, as I had come in specifically to address this particular amendment. I do so for three reasons. First, sometimes we on this side of the House have been disappointed with the Deregulation Bill, because quite a number of things have been deregulated that really do not seem to have been very important. There has been a tendency to add up the number of things that we have got rid of. On one occasion my noble friend had to justify the removal of a statutory right from someone who was still able to exercise it voluntarily—not, I thought, one of the biggest things that we have ever done in government. I am particularly concerned that when we have an opportunity to make a change that is really worth while, we should do it.
The second reason for my concern is that sometimes one of the ways you can judge the validity of a proposition is to see who opposes it. For much of the time in my period in the House of Commons, there were one or two Members on my own side from whom, when I knew they were in favour of something, I was almost automatically on the other side. I believe that that is true of both sides of the House: we all have bellwethers, who are always extremely useful if we have not quite grasped what is behind the issue. My noble friend’s characterisation of the dual position of Fox News is one that deserves considerable investigation. The reason that people do not want that is because they make money out of it. We therefore have to ask ourselves some very simple questions. Should they make money out of it? Is it in the public interest that they make money out of it? Is it money that could be better spent somewhere else?
That brings me to my third point. Torn aside from all the history, the phrases, the arguments and the discussions, this is a simple matter. We once had a different system, and we had different rules to deal with that system. The system has changed but the rules have not. Would it not be sensible to change the rules now that the system has changed? If there is a big reason for deregulation, and there are several, the biggest of all is that many Administrations suffer from the inability to get rid of good things when they become bad. You can go round the whole Continent of Europe and find all sorts of bits of regulation that were frightfully good at the time when they were put forward but which now get in the way of trade, make it more difficult for people to innovate, and distort the market.
I am not always known for my upholding of the free and unfettered market, mainly because most markets are neither free nor unfettered. However, I wish to say that here there is an obvious way in which a Conservative-led coalition can make the market freer. In those circumstances, seeing as it appears to have the support of the Opposition as well as that of its coalition partners, there is not much reason for saying that this is not a sensible amendment. I therefore hope that my noble friend will find it possible, if not to give way on this occasion, at least to indicate that he has every intention of giving way at a more amenable moment, but before the Bill passes.
Lord Dubs (Lab)
My Lords, I have enjoyed listening to the speeches on the amendment moved by the noble Lord, Lord Grade, who gave a very powerful indictment of the present situation. I do not know what the Front Benches will say to this.
When I was first in the Commons in 1979, a small Bill or measure was working its way through—I cannot remember what it was—and both the Front Benches were passionately in favour of it. I ended up in the Lobby, voting against it with friends, who said, “When both the Front Benches agree, we’d better all be careful”. I do not know about that. However, when Governments are in difficulty, our brilliant officials put forward a number of ideas or thoughts. One is to say, “Accept the principle, but not now”. That is pretty much what Governments do in order not to have to do anything. The other thing they could say to get out of it is, “Well, we’re going to have a review”, because that puts it all into the long grass. Or they can say, “This measure has other implications, and we’ve got to think about those”. Those are all stock excuses that the civil servants, in their brilliant and imaginative ingenuity, pull off the shelf and say, “Here, Minister; these will get you out of the mess you’re in”.
The Minister is in a bit of a mess, because people with far more experience in the industry than me have all united to condemn this anomaly, which, frankly, in logical terms, cannot be defended. I bow to the experience of many Members of this Committee who have far more media experience than I have. I served for a brief time on the ITC and for a slightly longer time on the Broadcasting Standards Commission, but we on the commission certainly did not deal with matters of this sort, so I accept that noble Lords here have far more experience in this than I have.
I suspect that the Minister will say that he accepts the principle, and then there will be a big “But”; I look forward to hearing that. However, we are in a ridiculous position if he does not accept it anyway. We have a brilliant creative industry in Britain; our television creativity is second to none. We are allowing it to be weakened by this anomaly, which dates back many years as a way of protecting a small and up-and-coming cable industry. The time has come to say, “No, there’s no point in this”.
We have to support our creative industries and, in terms of competition, have at least a semblance of a level playing field, which we simply do not have at the moment. We are allowing the public service broadcasters to subsidise the pay TV platforms, and surely that is not right in any approach to competition policy. In a normal situation, one would say that these things have to be negotiated freely between the parties and, where they cannot be negotiated freely because of anomalies, we should get rid of the anomalies. Good heavens, I am in the Labour Party and I am arguing for competition—what is going on here? What we do not want is this partly hidden subsidy.
Of course, as has been said, Virgin Media and Sky are willing to enter into such a process for the channels not covered by Section 73—in other words, ITV2, ITV3 and ITV4. It does not make sense even in those terms, any more than it makes sense in terms of what News Corporation is doing in the United States. There are many ridiculous defences of the present position and they just do not stand up at all. I would argue that Section 73 has outlived its useful life. It defies logic, it defies fairness, it defies competition policy and it might defy even the ingenuity of the Government to defend it.
Lord Stevenson of Balmacara
My Lords, this has been a very interesting and useful debate, again, on this topic. I say “again” because although when the noble Lord, Lord Grade, introduced the topic he said that he could not think of a more perfect vehicle for this amendment, he might like to reflect on the fact that we have had this argument before on four other occasions—this is the fifth time this issue has come up—and every other vehicle has also been seen as a perfect vehicle for this amendment. I rather suspect, although I would not wish to impugn any of his motives, that there are people on a mission to do a particular thing who are looking for any vehicle that comes along to hook their amendment to. That is not necessarily wrong, though; this is a complicated topic.
Section 73 is part of a very complex web of regulations that provides equilibrium in the UK broadcast market—at least it has done for some 28 years, as we have heard. Its focus is on consumers, who have of course already paid for public service broadcasting content through the licence fee or through indirect taxation, paying for advertising costs on the goods that they purchase. It is a question of whether or not the arrangements that were set up in 1988, not on a temporary basis, are still relevant today. It is important that among all the various vested interests that we have heard about today, the consumer interest is kept at the forefront of our thinking.
Obviously, Section 73 is an old clause. It was created when the cable industry was in its infancy. It is also true, as everyone has said, that the industry has changed a lot since then. It is interesting, though, that the reason why this suddenly became prominent in people’s thinking, and why it has been raised in three successive Bills that I have been involved in, is because of a case involving catch-up television that is still going through the courts and therefore perhaps should not be excessively commented on. The point is that the judgment in the first instance will have raised legitimate concerns about the use of Section 73 as a defence for retransmission of free-to-air channels online. That, of course, is radically different from any cable commitments or any negotiations that may take place between Sky, Virgin and others that are involved in this. It is right to have in mind that the reason why this has become so topical starts with that case, which is ongoing.
Of course we would say—wouldn’t we?—that the age of things does not necessarily determine whether or not they still have value, and attempts to delete old things just because they are old cannot give much comfort to Members of this House. Is this not perhaps another candidate for the Law Commission, about which we have heard? There is an issue of whether or not this measure is still relevant and perhaps needs to be reregulated. The right thing to do is to accept that there is a big issue here and to carry out the due process to get it to a point where it is considered by a review to ensure that it still delivers good public policy objectives and is good for consumers. I think that the findings will be very useful in understanding that better.
My understanding is that the Government have announced that they will carry out a review of how Section 73 might be amended. I hope that the Minister will let us know what progress has been made—
Assisted Suicide
Lord Dubs Excerpts(10 years ago)
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Lord Wallace of Tankerness
My Lords, I am certainly aware of the judgment passed down by the Supreme Court this morning. In a preliminary consideration of it I agree with my noble friend that it indicated that it is a matter that Parliament ought to consider. The Government will take a collective view on the Assisted Dying Bill of the noble and learned Lord, Lord Falconer, to respond to that debate. It is fair to say that historically it has been a matter of individual conscience, which the Prime Minister confirmed in April this year. Therefore, it would be inappropriate for me from this Dispatch Box to indicate what noble Lords should or should not do on 18 July. I fully expect, however, that on a complex issue that raises passions on both sides—which I very much respect—your Lordships, in traditional manner, will give proper consideration to a range of arguments including, no doubt, the judgment passed down by the justices of the Supreme Court.
Lord Dubs (Lab)
My Lords, if the Government are going to take a collective view, how does that relate to individual responsibility on a matter of conscience? Surely everyone—members of the Government included —should be entitled to have an individual view on a matter of conscience such as this, and not to be bullied by the Government Front Bench.
Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Bill
Lord Dubs Excerpts(10 years, 6 months ago)
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Lord Horam (Con)
My Lords, I declare an interest as a member of the Electoral Commission. However, I am speaking for myself on this occasion and any further remarks I make in this debate are not from the Electoral Commission.
The burden of the point of the noble Lord, Lord Rooker, which I take very seriously, is that civic society plays a special role in Northern Ireland because of the nature of the political settlement there. The solution he proposes, which is to exempt Northern Ireland entirely from the provisions of the Bill, is only one possible solution to the problems. Another solution was put forward by the commission chaired by the noble and right reverend Lord, Lord Harries, which goes into the issue in some detail. The noble and right reverend Lord points out that if the registration levels were raised, and if the costs of security and safety were exempted from regulation, that would be another way of dealing with this issue, rather than exempting them from the Bill as a whole.
As to the other remarks made by the previous speaker, the noble Baroness was quite right to say that, in relation to donations, for example, which have played a very important part in the political tragedy, if you like, of Northern Ireland, delegated powers under another Bill allow the Secretary of State to bring in provisions as he thinks fit and as his judgment suggests is wise. That is a third alternative to exempting Northern Ireland entirely from the provisions of the Bill. It would be rather stark to do that, given that—I am sure the noble Lord, Lord Rooker, would agree—in essence we are trying to normalise the situation in Northern Ireland as we go along. Therefore, we could give it special attention by all means, but to exempt it totally from the provisions of the Bill would be too stark when there are alternative ways forward.
Lord Dubs (Lab)
My Lords, I would very much like to support my noble friend Lord Rooker in what he has said and the amendment he has put forward. I also very much welcome the comments made by my noble friend Lady Blood, particularly with reference to integrated education. I totally share her views that the integrated education movement in Northern Ireland is a vibrant force and absolutely crucial for the political future of education there. I only wish it had more money and even more clout than it has to influence the political parties in Northern Ireland.
I preceded by some years my noble friend Lord Rooker in being a junior Minister in Northern Ireland. Well, he was not a junior Minister: I was. I was so impressed by the vitality, energy, vibrancy and effectiveness of the voluntary sector. It is something that one has to experience in Northern Ireland to sense the way it is. Anything that would muzzle the voluntary sector would be a retrograde step. I have more recently, through my membership of the British-Irish Parliamentary Assembly, been involved through one of the committees in dealing with many parts of the voluntary sector. That vitality continues to make such an important contribution to democracy in Northern Ireland.
As the noble Lord, Lord Rooker, said, politics in Northern Ireland is a bit different. We have there a coalition compelled by legislation—although I am bound to say, as an aside, that it is quite to be expected that there will be arguments within the coalition in Northern Ireland through the power-sharing Executive. The coalition here is beginning to follow in the steps of the Northern Ireland Executive in that respect. Perhaps it is churlish of me to draw attention to that.
The voluntary sector has an enormous part to play in developing democracy and institutions, and in seeking to establish change in Northern Ireland. I very much hope that the effect of the Bill will not be to muzzle that effectiveness. That is why I welcome the contribution of my noble friend Lord Rooker in bringing forward this amendment.
Baroness Mallalieu (Lab)
Perhaps I might add a little to what the noble and right reverend Lord, Lord Harries, said earlier. I had the good fortune to be a member of his commission. I am bound to say that, before I started to hear the evidence from Northern Ireland, I had very little understanding or knowledge of the particular effects of the Bill, as it is currently drafted, on Northern Ireland.
The commissioner who went over on the commission’s behalf, Georgette Mulheir, is the chief executive of Lumos, a children’s charity. She came back with some truly powerful evidence from those from whom she had heard, and made more than one visit. Some of her work was done before Second Reading in this House, and some subsequently. I understand that latterly one of the Ministers—I believe it was Tom Brake, but I shall be corrected if I am wrong—went over on one occasion and took some evidence, but that was of course after the Bill had been drafted and gone right through another place, and after our Second Reading here.
If I had not had the benefit of the material that we had heard, I would have had no idea of the damage that the Bill as currently drafted could have in Northern Ireland. What came back was that non-governmental organisations’ participation in the democratic process over there is one of the key components of the peace process. The engagement of young people in campaigning, and the close co-operation with all-party groups, was viewed by virtually everyone as a way of strengthening the possibility of lasting peace in Northern Ireland and a real alternative to a return to violence—which, after all, was the way in which young people participated in politics in Northern Ireland for far too long.
The commission’s view at the end of the day related both to the limits—the registration limit and the spending limit—which in our view it would be wholly wrong to lower, and of course to the way in which coalitions work. One of the most powerful examples of how unintended consequences can occur with a Bill such as this—and I cannot believe that the Government wanted to produce this result—was the example given in the commission report about the Human Rights Consortium in Northern Ireland, a group of 180 small organisations from right across the political divide. It would be hard to think of a more disparate group. It got together to campaign for a Bill of rights. Under the Bill as currently drafted, that coalition would have fallen foul of the registration threshold, the spending limits and, in some areas, the constituency limits. It would have been wholly impossible for that group to get together, knowing that it would face the regulatory burdens of the Bill, with a criminal sanction at the end of it. I cannot believe that an organisation such as that, which was working hard and involved people who had never spoken to one another sitting down and campaigning together, is something that the Government would wish to destroy. That, in effect, would be the result of the Bill as it stands.
Whether the right course is, as my noble friend Lord Rooker suggested, to take out Northern Ireland altogether, I am not sure—because, of course, transparency should go across the board in the United Kingdom. However, unless there are changes to the thresholds, to the way in which groups can get together to work, and to the regulatory burden that is imposed, the amendment will deserve to be supported at a later stage.
I am bound to say that the commission spent a lot of time looking at many areas that we are going to come on to. This is not a Bill that can be tinkered with and cherry-picked, in the sense that the amendments put forward by the commission stand or fall together as a package. This House may have to make a decision when eventually we hear what the Government’s views are. Not a single government amendment has been put down today—because, we are told, they are listening, as I am sure they are. The question is: will they act to put the Bill right? If at the end of the day they have not done so, we would be better off with the present state of play for the next election.
Most important of all—it is one of the commission’s recommendations and makes sense from all that has been said by those noble Lords who have spoken and who know about Northern Ireland—the issue needs to be looked at in real detail, not in the rush of a couple of months or weeks. It needs people to sit down and produce a proper piece of legislation, not something cobbled together in a rush since July, as this Bill has been. If that cannot be done before the Bill leaves this House, it will have to be done after the 2015 election. If the changes are not made, I am bound to say that I hope that we will look closely at the whole of Part 2 at the end of the Bill’s passage through this House, to see if we would not be better off without any of it until after the next election, when the job can be done properly.
Succession to the Crown Bill
Lord Dubs Excerpts(11 years, 4 months ago)
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Lord Dubs
My Lords, I give this Bill my enthusiastic welcome. The issues have been debated frequently, there has been a succession of Private Members’ Bills, one of which I introduced to this House about nine years ago, and nobody can say that the topic is not pretty well understood.
I shall refer briefly to The Future of the Monarchy: The Report of the Fabian Commission, which came out about 10 years ago. It embodied many aspects of the Bill, but went a bit further. It may well be that this is the first time that the Fabian Society has produced a report that has been taken up by a Government other than a Labour Government. I am sure George Bernard Shaw and the Webbs would have been delighted if they had known that this would happen. The Fabian Commission included two Members of this House and a former Clerk of the Parliaments. Indeed, the right reverend Prelate the Bishop gave evidence to it. So there has been a great deal of discussion about this, but we may need to wait perhaps 30 years to know where the impetus for this Bill came from—whether it came from the Conservative Party or the Liberal Democrats—but perhaps that is not important today.
When I introduced my Bill, the main objection to it was that the issue was too all-embracing and too difficult to be the subject of a Private Member’s Bill, and on the basis of that argument, I withdrew it. Since then, 15 other Commonwealth countries have been consulted and this Government have worked very hard to bring the Bill to the present position. I think we should all be delighted that it is now before us.
The clear point, which has been stated by many Members of this House, is that as a country we are totally opposed to discrimination on grounds of gender or religion. It is wrong that there should be discrimination at the highest level in our country. In the words of the Fabian Society report:
“It should no longer be acceptable for the monarchy to embody what are effectively forms of institutionalised discrimination”.
That is very good. Of course, I fully understand that, given the happy event expected by the Duchess of Cambridge later on this year, it is important that the Bill becomes law before she has a son or a daughter. And there can be no doubt that the Queen herself has clearly demonstrated how ably and effectively a woman can do the job. I believe that history may well judge her to have been our most effective monarch. That is a big statement, but she must certainly be on the shortlist for such an accolade.
In passing, I remind the House of the Queen’s visit to Ireland a couple of years ago. By any standards, her visit was a breathtaking success and further improved our good relationship with Ireland. Although we do not talk about it very much now, in Ireland they still talk about the success and importance of that visit, and how well the Queen handled all the issues that arose.
Another matter that has been referred to in a number of speeches, including in the Minister’s, is the effect of the principle in this Bill on the nobility. I know that newspapers have written about it quite enthusiastically and have interviewed a number of Members of this House. It is clearly not for this Bill, and others may judge how to take it further on a future occasion.
Dealing with gender discrimination in the Bill is absolutely straightforward; nobody has argued with that proposition. The same clearly cannot be said of religion. Indeed, most speeches so far have been concerned with the difficulties caused by the reference to Catholicism in the Bill. Let me therefore tiptoe into areas of controversy.
It is clear that the obvious difficulty is the position of the head of state as Supreme Governor of the Church of England. I am not persuaded that that could not be brought to an end without the Church of England being disestablished. I do not understand why our monarch has to be the Supreme Governor. Surely the Church of England could be the Established Church without that happening? If the head of state were no longer to be the Supreme Governor of the Church of England, many of the difficulties described in the Bill would disappear immediately. That would be a much more sensible position. Obviously, the alternative would be to disestablish the Church of England entirely, but I am not arguing for that. I am simply saying that the position of the head of state as Supreme Governor should be questioned. I am not sure that it does the church any good, and it would certainly make the Bill much more straightforward.
I have absolutely no intention of dealing with that matter at later stages of the Bill. The most important thing is for the Bill to become law as soon as possible, but it is only reasonable that a Second Reading debate gives us an opportunity to float issues. This I have done.
I would like there to be a position in which the monarch herself or himself could in future be a Catholic, or of no faith, if he or she wished. That would be a better outcome than the present one. In any case, although we are talking about the Church of England—I am not an expert on all religions—we are also talking about the Queen as the sovereign in Scotland, Wales and Northern Ireland. All sorts of difficulties arise other than the Queen being Supreme Governor of the Church of England. That is an additional argument for making the change that I have suggested.
These are clearly issues for the future. Today, I repeat my warm and enthusiastic welcome for the Bill, and wish it a speedy passage into law.
Justice and Security Bill [HL]
Lord Dubs Excerpts(11 years, 7 months ago)
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Lord Dubs
My Lords, briefly, I support the amendments. I make one specific comment. Having listened to the speeches of my noble friend Lord Beecham and the noble Lord, Lord Pannick, I say simply that there is a very thin line between their arguments in support of the amendments and Amendment 45 and the other group, which seek the removal of CMPs. The line is so thin that I believe that I could use the case of the noble Lord, Lord Pannick, in particular, which he put so eloquently, to come to a different conclusion: to support our amendments. That is an argument for later. In the mean time, I hope that the House will support the key amendments when we come to votes.
Baroness Berridge
My Lords, I speak as a member of the Joint Committee on Human Rights and as the fourth name on this group of amendments. Normally, I take very seriously the advice given by our Government —so much so that I took the advice of the Government’s Chief Medical Officer early last week not to seek antibiotics for a cough and cold, so I apologise. I am living to regret following that advice and I apologise for any resultant disturbance to your Lordships’ proceedings this afternoon.
It is the judge’s court, not the Government’s, so it should be the judge’s decision or discretion as to the fairest way to proceed with the case before him or her—whether that is by using public interest immunity with all its flexibility, as outlined by the noble Lord, Lord Pannick, or by using a closed material procedure.
It is so important that this House stands firm on that principle, not only to protect the credibility of the judicial process but to safeguard the interests of the other party to that litigation. The Government, who are one party to the litigation that we are considering, usually have control over the other place, so it is only this Chamber that can protect the other party to the litigation and keep the important procedural powers in the hands of the judge by your Lordships accepting this group of amendments.
These amendments, particularly Amendment 37, reflect the view of David Anderson, the independent reviewer of terrorism legislation when he stated to the joint committee that this ensures that cases are not tried in closed material procedure that could otherwise be done under public interest immunity, nor will cases be struck out that can be tried in a closed material procedure. The judge must retain a wide procedural discretion, which, if these amendments are accepted, I accept may mean that our judiciary will begin a new balancing act: balancing the unfairness of the exclusionary nature of PII against the unfairness of the closed material procedure, which leads to the claimant and his or her lawyer being absent. I believe it is very important to retain this judicial discretion and to leave these matters in the hands of our judiciary, who have shown that they can be entrusted with such fine balancing acts. My name is therefore on these amendments.
Justice and Security Bill [HL]
Lord Dubs Excerpts(11 years, 7 months ago)
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Lord Dubs
My Lords, in the earlier debates this evening, we discussed the CMPs at great length. As I said in passing, many of the arguments against or seeking to modify the CMPs could easily have ended with a move to abolish them altogether. So in one sense, the case has already been made, except that I have to go back over it briefly. We are talking about probably the most fundamental aspect of the Bill: whether or not we should have anything like CMPs on our statute book at all.
CMPs represent, as was said earlier, an absolutely fundamental change in our judicial system—more fundamental than, perhaps, was fully appreciated. For the things that will fall under CMPs, it is the end of our adversarial system, when judges will no longer have to hear both sides of an argument in order to come to conclusions. It has been said by people who are more expert than I that if you take away one side, then injustice is virtually guaranteed. Our adversarial system depends upon two sides: two parties. Without that, our system can hardly be assured of providing justice. Indeed, it may well not do that at all.
We are, after all, talking about 350 years of applying a principle and doing this in practice. If we depart from such a fundamental principle, we are damaging our basic freedoms. It means that citizens can no longer challenge the powers that be in court and be heard openly in doing so. It takes away one of the most fundamental rights of the British citizen: that they can go to court, that they can challenge authority and the powers that be. That will no longer be possible.
Indeed, this will tarnish the reputation of British justice. I understand that at least one newspaper in Russia has already commented—approvingly or not, I do not know—that these proposals will provide secret courts. Maybe the Russian paper thought that that would be a good idea, or was seeking to justify something in that country. Certainly, however, if other countries are already commenting before we have even passed the legislation, we ought to be pretty careful about it.
Of course, as has been said before, the system will work on whispers. The Minister or the Government will whisper to judges and the decisions will be made accordingly. Indeed, David Anderson QC, the independent reviewer of terrorism, who has often been quoted this evening, has said that these measures cannot be justified on security grounds. He had other reasons for justifying them in terms of cost or not paying people money, but, on security grounds, he did not think that they could be justified.
One of the concerns, which has been expressed quite frequently, is that if you give a Government powers, even on a limited basis, they will inevitably start using them more widely. This is no disrespect to any Minister—it is simply the way the system works. We can all visualise a civil servant saying to a Minister, “Well, Minister, you know you do have the powers to do this, and they’re on the statute book”, and the Minister will say “Hmm, I forgot that”, and then “Can I get away with it?”, or “Will Parliament notice?”, or words to that effect. This is how Governments of all colours work. We therefore have to be careful that when we give powers that are intended to be limited, they will inevitably be used more widely. The special advocates themselves—all those consulted in a survey, which was almost all of them—said, I believe, that this whole idea was “incurably unfair”.
I want to give one example. I have lots of them, but I do not want to trespass on the time of the House too much. I have a document here which was in fact produced by the Ministry of Defence in court, so I am not giving away any secrets, though it was headed “Confidential” before it went into court. It is produced by an organisation called the United Kingdom Detention Oversight Team, or UKDOT. Its job is to visit detainees in Afghanistan who are held by the Afghan authorities. I will quote from this document, because it came out in court because we did not have CMPs. If we had had CMPs, it is almost certain that none of this would have been known. The document is headed “Electric Flex-Redux”.
“The team arrived. On arrival we interrupted an interview (we conduct our interviews in one of the two interview rooms) which caused the interrogator and prisoner to vacate the room in haste to accommodate the UKDOT. In the interview room we found on the floor behind the interviewer’s desk the same UK socket electric flex the UKDOT had seen on a previous visit”—
It refers to the visit in September and then continues:
“We took a photograph of the flex (see photograph) and after a few minutes a guard appeared and, in an uncomfortable silence, removed the flex: no explanation was offered and, for fear of causing a scene, none was asked for”.
I have here a photograph of the flex lying on a carpet. There may be an innocent reason for this, and this is not an investigation of how this operated. The point is, this would never have come out if we had had the legislation that the Government wanted. Therefore, I argue that the CMPs would help cover up things that we ought to know about. It would not have come to light if the CMP had been in use at the time.
I will conclude with the following. I was a member of the JCHR some time ago, when we produced the first report on these proposals, although I was not a member when it produced a second report. However, both reports have a number of things in common, one of which is that they said that the Government had produced no evidence to substantiate the use of CMPs. In the end, that is the most crucial argument. We are stumbling along, setting a very dangerous precedent, as far as our judicial system is concerned, and we are doing it without the evidence that would justify such a dramatic and drastic change. All we have is the say-so that there are a number of cases in the pipeline—and I do not doubt the Minister’s good will—which might or might not come under this system, and which might or might not contain something important that would be revealed if we did not have CMPs. No evidence produced by Government could justify this major piece of legislation. I beg to move.
Lord Strasburger
My Lords, when I spoke to your Lordships’ House on Second Reading, I highlighted how the injection of closed material procedures into our civil justice system would infect it with unfairness and corrupt it with secrecy. Currently, the British people hold their courts in high regard, and respect their decisions. This is partly because our judges are seen as incorruptible, independent and wise, but the main reason is that court decisions are the result of a fair and transparent process. In an adversarial system such as the English one, the right to know and challenge the opposing case is not merely a feature of the system—it is the system.
Judges do not have the resources or power to investigate the merits of the case themselves. They depend upon the process in which both sides assemble and present their evidence, and then challenge each other’s cases. They then judge which case is the stronger in the light of those mutual challenges.
The Government have stated that,
“protecting the public should not come at the expense of our freedoms”.—[Official Report, 19/6/12; col. 1660.]
This seems to be precisely the cost that the Government wish to exact in the name of greater security. In fact, the Bill does very little to provide the public with greater security, while giving an unacceptably high level of protection to the security services from exposure of their alleged wrongdoings by the civil courts.
The Government would need to advance the most persuasive reasons to justify such serious damage to our civil justice system. They have completely failed to do so. That is the conclusion that the Joint Committee on Human Rights came to. It stated:
“We remain unpersuaded that the Government has demonstrated by reference to evidence that there exists a significant and growing number of civil cases in which a closed material procedure is ‘essential’”.
Listen to the clear opinion of the special advocates, the government-appointed lawyers who spend much of their time working at the coalface in this dark and murky part of our legal system. A memorandum about the Bill, which was signed by 59 out of 67 of them, states that,
“the Government would have to show the most compelling reasons to justify their introduction”,
referring to the CMPs. It went on to say,
“that no such reasons have been advanced; and that, in our view, none exists”.
The Government have completely ignored this highly authoritative condemnation of the need for the Bill. The only comments that I can recall are an admission by the former Lord Chancellor that,
“the evidence of the special advocates most unsettled me”.
But he has done nothing to correct his unsettled condition and I presume that he is still unsettled, as I am.
The Advocate-General for Scotland (Lord Wallace of Tankerness)
My Lords, this has clearly been an important debate with passions expressed on both sides of the argument. Following the votes that we have already had —on amendments which my right honourable friend the Deputy Prime Minister was talking about; the House has had an opportunity to consider the amendments emanating from the JCHR report—the Bill looks very different from that which arrived on Report. The CMP process has now altered with the wishes already expressed by this House. I therefore urge noble Lords not to remove these clauses altogether after such time has been taken to scrutinise and amend them. My noble friend Lord Lester summed it up very well: there is no point in spending a long time before the Dinner Break putting these safeguards, as he described them, into the Bill, only to simply take them all out after the Dinner Break.
Lord Wallace of Tankerness
This is the Bill as the House has now passed it. The House has accepted that CMPs are needed. The Government will and should properly reflect on the steer that this House has provided as the Bill moves to the other place. Crucially, we believe that closed material proceedings are absolutely necessary and are, indeed, a significant improvement on the current system.
I am not going to rehearse all the arguments that we have been through on a number of occasions. I will just pick up one or two points that were made in debate. The noble Lord, Lord Dubs, talked about a system of “whispers”. The closed part of the proceedings will not be a cosy chat between the judge and the government lawyers. The non-Government parties will be excluded from the proceedings, as will members of the public, but the interests of the excluded parties will be represented by special advocates, about which I will say a word in a moment. In other words, the closed proceedings will look much like open proceedings in that they will have counsel for the Government and counsel who are special advocates representing the interests of the excluded party and making submissions to the judge.
I understand the concerns that are expressed about the special advocate, but it is also fair to say that the special advocates themselves sometimes underplay their own abilities. The noble and learned Lord, Lord Woolf, said that he has read the transcripts in the case of M v Secretary of State for the Home Department, and had been impressed with the openness and fairness with which the issues in closed session were dealt with by those who were responsible for the evidence in that case before the SAIC. He went on to say that while the procedures that the SAIC adopts are not ideal—no one is pretending that this is a perfection of justice or making that argument—
“it is possible by using special advocates to ensure that those detained can achieve justice and it is wrong therefore to undervalue the SIAC appeal process”.
The noble Lord, Lord Dubs, also referred to what he said were “cover ups”. This was echoed by a number of contributors to the debate. This completely misunderstands the whole purpose of closed-material proceedings. I share the view of those who have expressed in these debates that they abhor torture. The Government abhor torture. The Government do not condone it, and nor do they seek others to conduct torture on their part.
My noble friend Lord Thomas said that we should assume a case where there has been malfeasance on the part of someone acting on behalf of the British Government. The point is that if there were such as case, it is important that these issues are properly considered and investigated. The point under the present situation, with public interest immunity certificates, is that if public interest immunity is successfully asserted, none of that evidence will actually be before a judge. It is important that that evidence should be before a judge. It is important that there is fairness for the claimant, and there is not necessarily fairness for the claimant if the claimant has to settle because important information cannot be considered in open court and we have not allowed them the opportunity of closed material proceedings. While there may be some satisfaction in getting a financial settlement, it might not be a satisfaction if you have indeed been wronged and do not have a court judgment to confirm that. It is not only the security services, on which we have perhaps focused our debates, for which the present system can act unfairly. It is unfair, too, on someone with a just claim who cannot get it properly vindicated in the courts because evidence cannot be brought before them. That makes the point that that is also, as has been said, unfair to those who believe that they have a proper defence and cannot deploy it. In our first group of amendments today the noble Baroness, Lady Manningham-Buller, indicated that that has the effect of lowering morale in cases where people believe that they have done no wrong and they have a proper defence but cannot deploy it.
Lord Dubs
My Lords, we have been over these issues a number of times this evening, so I shall confine myself to making some very brief points. Of course, everyone is against torture. It is abhorrent and criminal. We are all opposed to terrorism and will do nothing to weaken the security of our country. Had I not left my London residence late and had left at the usual time, I would have been going through Edgware Road on the day of the bombings. I therefore felt fairly close to that, although I was a quarter of a mile away at the time. I certainly would do nothing that would weaken our safety and security.
I do not think that there are widespread cover-ups in our society but there have been a number. We have had a number of inquiries which were intended to reveal to people what actually happened when there had been a suspicion of a cover-up and what happened when there had been a cover-up. Hillsborough is only one example and there are several. The argument is not so much that we are hiding cover-ups but that we should be open and transparent. People should see that there are no cover-ups. I fear that the CMP will make people feel suspicious about the integrity of our justice system.
I would like to use many arguments to rebut what the Minister said but the hour is late. I wish to test the opinion of the House.
Lord Taylor of Holbeach
My Lords, I have a speaking note for this amendment and I will not take the risk of moving it formally because it adds a new clause to the Bill. I hope noble Lords will forgive me if I explain this quite lengthy and complex clause, although it is simple enough in its intention. It would allow intercept material to be adduced in closed material procedures in national security cases in employment tribunals.
Intercept material is excluded from legal proceedings under Section 17 of the Regulation of Investigatory Powers Act 2000, but an exception already applies in limited circumstances by virtue of Section 18 of that Act. The section lists those specialised proceedings, including the Special Immigration Appeals Commission and cases relating to terrorism prevention and investigation measures proceedings, where intercept material can be used in the closed part of the proceedings. It is the Government’s objective to find a practical way to allow the use of intercept evidence in court. Section 18 does not currently include employment tribunals, and the amendment seeks to change this. The change would enhance the effectiveness and fairness of employment tribunals, it would be consistent with the objectives of this Bill and wider government policy, and it will help protect national security. Perhaps I may take these issues in turn.
The first is consistency with the Bill and its effectiveness. By allowing intercept material to be adduced in a limited number of cases where such material may be available, the amendment would enable employers to defend claims, for example, for unfair dismissal with a broader set of evidence than is currently available. The ability to adduce intercept material in CMPs is consistent with the wider provisions of this Bill, in particular paragraph 9 of Schedule 2, which includes a provision for an amendment to Section 18 of the Regulation of Investigatory Powers Act to allow for intercept material to be admitted in any Clause 6 proceedings. This further amendment would bring employment tribunals in line with the small number of specialised civil proceedings in which the disclosure of intercept product is already permissible.
Perhaps I can now address the question of operational necessity. This amendment does not represent an academic exercise. There will be cases before employment tribunals where an employer is not properly equipped to defend its actions as it is unable to adduce the full breadth of material available. For example, there will be cases where the Government are defending a claim for unfair dismissal following the removal of a former employee’s vetting clearance. Currently, if the vetting is based on intercept material, it would not be possible to adduce that material in support of the vetting decision. The national security vetting system is designed to provide an assurance that those with access to sensitive information do not pose a security risk. It is very important that an assessment of the risk is made on the basis of all the relevant material, regardless of the source.
Where a decision is made to withdraw vetting clearance it is important to the integrity of the system that the decision can be maintained and is capable of being defended from legal challenge. Where intercept product or intelligence based on intercept is integral to the decision, its unavailability in employment tribunal findings could result in employers wrongly losing their case and an adverse impact on the national vetting system. Furthermore, departments may become reluctant to rely on information provided by the security and intelligence agencies for fear of not being able to defend decisions taken. It is also important that those bringing proceedings in employment tribunals can be confident that the tribunal has access to all the information on which a decision was made so that decisions can be properly examined.
I believe that the widening of the number of settings for a very small number of important cases in which intercept material can be considered should be welcome. I hope that noble Lords will see fit to support this important amendment. I beg to move.
Lord Dubs
My Lords, I do not dissent from the Minister’s reasoning, and indeed am grateful to him for explaining the issue. However, he has opened the door to a much wider issue that I want to touch on but not debate, because the hour is too late and this is not the Bill on which to do it.
The Minister will be aware that many noble Lords, including those of us on the Joint Committee on Human Rights, have for a long time been arguing that intercept evidence should be permissible in criminal cases as a way of bringing people to justice who otherwise cannot be brought to justice and have to be dealt with in other, less sensible ways, such as control orders, TPIMs and things like that. If the Government are so anxious to justify the use of intercept evidence in these instances, I wonder why we cannot take a step further and consider very seriously the use of intercept evidence in criminal cases where we would have a proper system of justice and where people who are guilty of offences, or thought to be guilty, could actually be brought to trial as opposed to being dealt with in the way that they are. This is a bit of a thin end of the wedge, but it is important and I would like to feel that the Government will think hard about it.
On the Joint Committee on Human Rights, we were on two occasions able to meet civil servants dealing with this, who always said to us that they were looking at it but that it was difficult. I can see it is difficult, because it is hard enough in this case and even harder in criminal cases. Will the Government consider looking seriously into the use of intercept evidence in criminal cases now that they have this as a very useful precedent?
Baroness Hamwee
My Lords, I will follow that by asking whether the Government are satisfied that the objections that they have told us there are to the use of intercept evidence in other cases do not apply in the case of employment tribunals. I have been listening to the introduction of this amendment, wondering whether I am in favour of it because I am in favour of the use of intercept evidence or against it because, presumably, the intercept evidence could be treated as closed material. I am rather torn on this, but the question that the noble Lord, Lord Dubs, raises is a very important one.
“( ) Section (Application for public interest immunity) applies in disclosure proceedings to which this section applies.”
Lord Dubs
I will be very brief. We now come to the Norwich Pharmacal issues: applications for public interest immunity. In this group there are two points to which I would like to draw the attention of the House. First, there is subsection (4) in Amendment 65, where we would exempt from open disclosure any matters that are the basis of,
“any agreement with foreign intelligence services that intelligence is shared confidentially and cannot be disclosed without the consent of the intelligence service which provided the intelligence”.
That is accepted in this amendment.
However, the amendment really seeks to say that there are certain domestic and international wrongs that should not be kept quiet or confidential. They are listed. They are matters of the utmost seriousness: genocide; murder; torture; slavery; cruel, inhuman or degrading treatment; child abuse; or,
“serious breaches of the Geneva Conventions”.
It is my contention that these matters are so serious that they ought not to be protected with confidentiality under the Norwich Pharmacal procedures, but that they should be made open and publicly known. If they are to be made open and publicly known, of course that fact in itself will possibly deter people from being involved in such criminal activities. I think that this is a worthwhile amendment. I beg to move.
Baroness Kennedy of The Shaws
I, too, feel strongly that this is an issue of some importance and I thank my noble friend Lord Dubs for raising it. I know that it is too late an hour for us to consider voting but, when these matters are taken up in the other place, I would really like this to be considered. In any consideration, one wants a judge to recognise that there are some things that basically cannot be covered even by national security or by any control principle that operates between intelligence services.
If we were to discover that there had been crimes of such an egregious nature, such as genocide, murder, torture, slavery, and all the most horrifying of crimes that we can document, and that those crimes would be covered by some kind of secrecy, that would be a source of great shame to us. That must be something that is taken into consideration when looking at ways of introducing new procedures into our courts. In the end, any consideration of such serious human rights abuses has to trump even issues of national security.
Lord Wallace of Tankerness
My Lords, I thank the noble Lord, Lord Dubs, for moving this amendment. We now move on to the Norwich Pharmacal part of this Bill. I thank the noble Baroness, Lady Kennedy, and my noble friend Lady Williams for their important contribution on an issue that, going by the earlier debate, is of considerable importance with regard to human rights and serious breaches of human rights.
The noble Lord, Lord Dubs, highlighted two points: one relating to serious breaches involving, for example, torture; and the other part of his amendment that relates to the control principle. To put this in context, the approach taken by this Bill is consistent with other legislation that has been passed by Parliament. For example, in the Freedom of information Act 2000, Parliament explicitly ruled out a right to access intelligence material; and the Evidence (Proceedings in Other Jurisdictions) Act 1975 and the Crime (International Co-operation) Act 2003 provide for exemptions from disclosure of evidence into overseas proceedings where such disclosure would prejudice the United Kingdom’s national security.
First, I will indicate why limiting the protection offered by legislation to the control principle, which I think is what the noble Lord was seeking to do, does not go far enough. We appreciate that it is important that this is recognised and, of course, as has been said numerous times in our debates, it is essential that the originator of the material remains in control of its handling and dissemination. However, it is often the fact as well as the content of the sharing arrangements that needs to be protected. Certifying information as subject to a control principle agreement could reveal the fact that such a highly sensitive relationship exists. Countries may not thank us for revealing that fact, and might come under pressure to end co-operation with us.
Moreover, there are also some considerable difficulties in identifying what qualifies as control principle material, and these difficulties could lead to further uncertainty and litigation. Perhaps I might be allowed, even at this time of night, to indicate again evidence given by Mr David Anderson QC in June to the Joint Committee on Human Rights, when he discussed these practical difficulties. There may be correspondence between the intelligence services commenting on control principle material, or assessments based on a mix of domestic and foreign material, and it would often be very difficult to distinguish between them.
It is important that we respect human rights and that we take seriously human rights violations, and that we take measures to ensure that there are effective remedies available. I spoke at some length in Committee about what the Government do, both in the United Kingdom and overseas, to promote and uphold human rights. It bears repeating that the United Kingdom Government stand firmly against torture and cruel, inhuman or degrading treatment or punishment. As I indicated in a previous debate, we do not condone it, nor do we ask others to do it on our behalf.
We work on human rights around the world through bilateral contacts, membership of international organisations and development aid and assistance, and in partnership with civil society. Our efforts worldwide on combating torture are guided by the Foreign and Commonwealth Office Prevention of Torture Strategy 2011-2015. The United Kingdom is working to strengthen legal frameworks to prevent and prohibit torture, develop the will and capacity of states to prevent and prohibit torture, and help organisations on the ground to get the expertise and training they need to prevent and prohibit torture.
In recent months the United Kingdom has made its position on torture clear in public statements on countries of concern, lobbied to strengthen adherence to the convention against torture and the ICCPR, and delivered in-country training to officials of other countries on handling complaints of torture in places of detention. In addition, the Government devote significant resources overseas to combating torture. This work is often done behind the scenes, but there is also much work in providing consular assistance as well as in lobbying and capacity-building projects.
In the Norwich Pharmacal context, however, the Government believe that such disclosure is not the most effective solution to the problem. Disclosure in a single case can have far-reaching long-term effects on the United Kingdom’s national security and international relations, making it harder for the United Kingdom to act as a positive influence on human rights world wide. It is not in any way the case that we do not take these matters seriously. I hope I have indicated that there is a very extensive programme of work and commitment on the part of the United Kingdom Government to tackle torture, but we do not believe that using the Norwich Pharmacal procedure is the way in which to do that. In these circumstances, I invite the noble Lord to withdraw his amendment.
Death Penalty: Global Abolition
Lord Dubs Excerpts(11 years, 8 months ago)
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The Advocate-General for Scotland (Lord Wallace of Tankerness)
My Lords, the Government regularly raise the death penalty with countries that retain it and fund civil society campaigns around the world in support of abolition. There is some progress. Last year, only 21 countries carried out executions, which was a decrease by more than one-third over the past decade. However, more needs to be done and we are working towards ensuring that more countries than ever support a resolution against the death penalty at the United Nations later this year.
Lord Dubs
I thank the Minister for that helpful Answer. Will he confirm that the newly appointed Minister of Justice in Japan has said that he takes a cautious stance on the death penalty? What efforts are the Government making to nudge him down the path towards at least a moratorium? Does the Minister further agree that getting abolition would be easier if it were not for the bad example set by the United States?