Advisory Committee on Business Appointments

Lord Morris of Aberavon Excerpts

Monday 10th September 2018 Lords Chamber

[Lord Young of Cookham]

My noble friend makes a good point about honour. When one joins your Lordships’ House we subscribe to the Code of Conduct, and part of that is an injunction to act,

“always on … personal honour”.

Those words have been used for centuries to describe the conduct that one should follow in the House. The former Foreign Secretary seems to defy the laws of political gravity. I certainly take my noble friend’s point: once you are no longer a Minister you are not subject to the Ministerial Code, so there is no formal sanction. However, as my noble friend suggested, I will certainly pursue her suggestion with the Cabinet Office. But at the end of the day, a Prime Minister is free to appoint whomever he or she wants, but I hope that whoever may hold that office will take into account the behaviour of Ministers when they defy the Ministerial Code.

[Lord Morris of Aberavon (Lab)]

My Lords, some years ago I served on this committee and grew increasingly frustrated by the revolving doors, but could not interest the then Prime Minister in any changes. Is it not the time to have an independent and thorough review of its workings; to tighten things up and lengthen the period before which officeholders can take up new posts—and, better still, to warn them early in their careers that they will not be able to glide as quickly into new posts; and to have sanctions where there are breaches?

[Lord Young of Cookham]

I take very seriously the suggestions of the noble and learned Lord, who served on this committee. The ACOBA is monitored closely by a Select Committee in the other place—the so-called PACAC committee—which has produced a series of reports making a number of recommendations, to which the Government have responded. We propose to tighten the current non-statutory scheme with increased transparency, awareness and monitoring, and we are also sharing any letters with prospective employers so that they are aware of any restraints on those who join their organisations. Finally, most of the people who come before ACOBA are people in public life with a high profile—indeed, many of them are Members of your Lordships’ House—and I suspect that many will not want to take the reputational hit of being publicly criticised by ACOBA. The prospective employer may wonder why they should take on somebody who has so recently flouted the rules of their previous employer.

Digital Forensic Services

Lord Morris of Aberavon Excerpts

Monday 12th March 2018 Lords Chamber

[Lord Young of Cookham]

On the specific issue of disclosure, which is important, the noble Lord will know that the Attorney-General has instituted a review, which will examine existing codes of practice, protocols, guidelines and legislation, as well as case management initiatives and capabilities across the whole criminal justice system, including how digital technology is used. Alongside that, the CPS and police forces are looking at any current cases to see that no cases go forward where there is a doubt about the disclosure process. The Government continue to monitor progress to ensure the police and the CPS deliver on the actions they have committed to undertake on the important issue of disclosure.

[Lord Morris of Aberavon (Lab)]

My Lords, have any doubts been raised or thrown against the findings of any one of these laboratories? Will the Attorney-General consult the Criminal Cases Review Commission, whose job it is to investigate miscarriages of justice, so that assurances can be given that no one has been wrongly convicted on the basis of evidence of this kind?

[Lord Young of Cookham]

The noble and learned Lord raises a very important issue. Where a laboratory is suspected of having fallen short of standards, procedures will be under way to ensure that retesting takes place. I understand that that is happening as we speak. I will draw to the attention of the Attorney-General the suggestion the noble and learned Lord just made.

European Union (Withdrawal) Bill

Lord Morris of Aberavon Excerpts

Tuesday 30th January 2018 Lords Chamber

[Lord Morris of Aberavon (Lab)]

My Lords, it is always a pleasure to follow the noble Lord, Lord Norton, whose views on the law are treated with the utmost respect in this House. I will follow him in one respect: on the legal consequences of Clause 11, which is important to the devolved Governments in Scotland and Wales.

I will confine my remarks to that particular clause, which I believe is sufficiently contentious for me to make a fundamental objection to it on Second Reading. The Scottish Secretary made a commitment on behalf of the Government that it would be amended by the Report stage in the Commons. The Government have failed to do so. It would have been of enormous value to this House if that promise had been kept. Is it that Whitehall cannot get round to facing the fact that more than 20 years after the event, there are other legally constituted Governments in other parts of the United Kingdom in addition to Westminster?

Mr Stephen Crabb, the former Welsh Secretary—he understands devolution—let the cat out of the bag when it was reported that he addressed the Conservative Party conference last year and said:

“We still have to get the Cabinet Secretary to put pressure on departmental permanent secretaries to take devolution seriously”.


I want to say in passing that with devolution, surprisingly, the involvement of Wales in decision-making in Brussels seems to have been less, not more. When I was Welsh Secretary, I frequently attended the Agricultural Council of Ministers when Welsh agriculture was discussed. On one occasion, at the Prime Minister’s request, I chaired the Employment and Social Affairs Committee during our presidency. The big question is whether Clause 11 undermines the principle and practice of devolution now accepted after years of battling.

The Government have been accused of a Westminster power grab in the Bill, at the expense of the devolved Administrations. Such colourful language may not be justified, but the question remains of how the present proposals were put before Parliament without meaningful discussions first taking place with both devolved Administrations. The explanation may lie with the intermittent and sporadic meetings of the Joint Ministerial Committee, where proposals could have been hammered out and agreed. If I may spell out what I understand to be the legal position, as it stands, there would be a new restriction on the legislative and executive competence of the devolved institutions—a new set of shackles whereby they cannot change retained EU law. So, instead of the devolution settlement, where there is equality between the devolved institutions and the UK Government in terms of freedom to set policy in devolved policy areas within the EU framework, there would exist a situation where the UK Government can unilaterally lock down the devolved institutions’ opportunities to shape such policies.

I believe that the Bill, as it stands, fundamentally redraws the architecture of devolution—the architecture referred to by the noble and learned Lord, Lord Wallace of Tankerness. In my view, and that of the Welsh Government, the principle of effective equality between the UK Government and the devolved institutions in areas that are clearly devolved needs to be retained in the post-Brexit world.

Astonishingly, the Bill would give Ministers of the Crown powers to make rectifications of retained law in areas of devolved competence without consultation with the devolved institutions to reach over into areas of devolved competence. The granting of powers to a Westminster Minister to change an Act of a devolved institution without any input from those legislatures is totally unacceptable.

I now turn to the issue of legislative consent, which of course is a political convention only, as the Miller case commented. The Government have come exceedingly reluctantly to the need for legislative consent. It has had to be dragged out of them. On 21 June, the Prime Minister stated:

“There is a possibility that a legislative consent motion may be required by the Scottish Parliament”.—[Official Report, Commons, 21/6/17; col. 62.]


The Leader of the Commons the following day kicked it into touch. Confirmation had to be dragged out of the Government and I am grateful to the noble Lord, Lord Bourne, who said that we would be seeking consent from the three devolved bodies. The issue is of such serious constitutional importance that the two First Ministers of Scotland and Wales have sent a joint letter to the Government stating that neither the Scottish Parliament nor the Welsh Assembly would give legislative consent that the Government acknowledge is needed to the Bill in its present form. That letter, which the two Governments have sent, is very important. Hence, there is an urgency for getting back to the table for meaningful discussions. As I have said on previous occasions, once devolution is given, it cannot be taken back.

Public Bodies: Appointments

Lord Morris of Aberavon Excerpts

Thursday 25th January 2018 Lords Chamber

[Lord Young of Cookham]

I welcome the noble Lord to the Back Benches, although it means that Ministers are now exposed to the forensic questions for which he is renowned. I believe he is referring to Toby Young. Perhaps I may make it clear that although Toby Young is the son of a life Peer, he is not the son of this one but of Michael Young, founder of the Consumers’ Association and the Open University: a good and great man, notwithstanding his support for the Labour Party.

On the serious issue that the noble Lord raises, the Commissioner for Public Appointments, whom I mentioned in my reply, is reviewing the Toby Young appointment and has already referred to the need for due diligence about social media. We await his report with interest, and it may be that we need to revise the Governance Code on Public Appointments, which at the moment has a section on standards in public life and handling conflicts and includes something on the lines of potential embarrassments and so-called skeletons in the cupboard, before anything goes to Ministers. We are aware of the growing importance of social media in this respect.

[Lord Morris of Aberavon (Lab)]

My Lords, will the Cabinet Office expand the pool from which appointments are made to limit the same people moving seamlessly from one quango to another when each quango obviously has different needs?

[Lord Young of Cookham]

I think that criticism is more relevant to some of the appointments of non-execs in the City than to public appointments, but I take on board the noble and learned Lord’s point. Each case is looked at on its merits against the background of the criteria, but if he is concerned that the same people are going round and round, I will certainly pass that on to the Cabinet Office to see whether we need to review the procedure.

Government Contracts: Steel Industry

Lord Morris of Aberavon Excerpts

Thursday 25th February 2016 Lords Chamber

[Lord Bridges of Headley]

Blow me down with a feather: my noble friend is wanting to leave the European Union. That is a surprise at quarter past 11. I am sure that he is right about his facts. The challenge at the moment is obviously Chinese steel. Chinese excess steel capacity is estimated to be roughly double the EU’s annual steel demand and 25 times the UK’s steel production. That is the real challenge we face.

[Lord Morris of Aberavon (Lab)]

My Lords, on the assumption that the Government made speedy and early representations to the European Commission regarding the dumping of Chinese steel, are they satisfied that the Commission has acted effectively and promptly to protect the British steel industry?

[Lord Bridges of Headley]

My Lords, there is always more that we can look towards the EU to do. For example, we are pleased that the European Commission is investigating where there is evidence that state support for steel industries is not compliant, as regards Italy and Belgium. My right honourable friend the Secretary of State for Trade and Industry was one of the signatories to the letter to the European Commission only a few weeks ago that called for further action.

Chilcot Inquiry

Lord Morris of Aberavon Excerpts

Thursday 22nd October 2015 Lords Chamber

Asked by

[Lord Morris of Aberavon]

To ask Her Majesty’s Government what is their assessment of the case for discharging the Chairman and members of the Chilcot Inquiry, and inviting the Cabinet Secretary to set out a mechanism for an interim report to be produced on the basis of the evidence gathered.

[Lord Morris of Aberavon (Lab)]

My Lords, I welcome at last the opportunity to debate the Chilcot inquiry. I have been very critical of the scandalous delays in publication. It may well be that the members of the committee will, after all, turn out to be knights in shining armour and produce an authoritative report that completely justifies its delays—in which case, I would withdraw my criticism. This committee was set up in June 2009, but it is still not able to give us a firm date for publication. Sir John recently promised to write to the Prime Minister in November with a timetable but, crucially, will not give a date for publication. The proposed legal action of some of the families of the 179 soldiers killed may have moved him. They are the ones most directly concerned in the establishment of the truth as to why we went to war. They have been badly let down: justice delayed is justice denied.

As an ex-Law Officer, I am concerned with upholding the rule of law in all its manifestations. A public inquiry is set up where there is widespread public concern on an issue of great importance. Although the cynical may portray it as kicking something into the long grass, we have no means other than that: to identify distinguished persons, be they lawyers or others, to identify the facts, deliver an authoritative judgment and publish their conclusions in good time for lessons to be learned. Respect for good governance is undermined if reports do not see the light of day before issues become dimmer and dimmer in public memory. Failure to publish reports in a timely way is indeed kicking it into the long grass.

The Franks committee into the Falklands War took about six months. Prime Minister Brown accepted the Cabinet Secretary’s recommendation to accept it as a model, and probably its terms of reference, the choice of members and perhaps also the mistaken advice to choose a non-statutory inquiry without the controls of the Inquiries Act 2005. I believe that the committee’s remit into an eight-year war might have been more tightly drawn. In the view of the noble Lord, Lord Butler, the terms of reference are so wide as to be almost infinite.

Sir John has said that he was not given the opportunity to discuss the scope of the inquiry. The Cabinet Office was in such a hurry that he was given only 10 minutes to decide whether to accept the chair or not.

I trust that the inquiry has concentrated on two fundamental issues, rather than chase every hare. First, what was the cause of the war? Did the Government believe the claims about Saddam Hussein’s weapons of mass destruction or was the aim regime change, which has no basis whatsoever in international law? Was this the real motivation? Secondly, when was the decision taken to go to war? Was it at Crawford or Camp David, in April 2002, in discussions between Prime Minister Blair and President Bush? Even the British ambassador was excluded from those discussions and apparently no note was taken. If the decision was taken then, any subsequent discussions at the United Nations would have been a charade. It might explain why, blaming the apparent unwillingness of the French, no further effort was made to get an agreed political solution at the Security Council. In my memoirs I say that the Chilcot Inquiry may tell us.

The saddest feature of the inquiry process was the strenuous efforts of the Cabinet Office to block the committee from having access to whole swathes of vital documentation, including notes from Blair to Bush. Eventually, the Cabinet Office’s arguments could not be sustained and the committee deserves our congratulations on winning this argument. However, the agreed redactions and the agreement to publish just some of the documents will need very close examination. Sir John is not clear as to how much time was lost in the argument. At one stage the evidence was 13 months, but it could have been up to two years. The Minister’s comments on these two aspects will be of great interest.

The lost time is not the most glorious period in the history of the Cabinet Office. I presume that the committee has not considered the memorandum, disclosed last weekend, from Secretary Powell to President Bush. Sir John has stated that he has seen 30 minutes from Blair to Bush and records of conversations between Powell and Jack Straw. However, he did not have access to the archives of foreign Governments. Assuming the validity of the memo, will the committee need to reflect on it and will it affect its conclusions and the date of publication? Regrettably, there was no counsel to the inquiry, which can do the spade work, assemble the evidence and save a great deal of time.

The next cause of delay is the doctrine of Maxwellisation—briefly, in common law, fairness to all concerned. The criticised should have the opportunity to comment before publication. The Times has published some very important letters on Maxwellisation—for example, from Sir Robert Francis and Sir Stanley Burnton. In my view, the process of Maxwellisation, much criticised by a Select Committee of this House on which I had the honour of serving, is open to criticism for statutory inquiries. This doctrine and the fear of judicial review have been elevated to a far higher level than previously envisaged. We do not know how much time has been lost, how many witnesses were involved, and what has been deemed a reasonable time for replies. In his evidence, Sir John kept his cards very close to his chest.

The Prime Minister, who complained so much when the inquiry was set up about its estimated time of one year, has since been wringing his hands as he says the inquiry is independent. It may now be counterproductive to dispense with the committee’s services, although I have been calling since 1 July—and indeed earlier—for the Cabinet Secretary to assess the evidence and produce an interim report for Parliament to consider what further action could be taken. If this had been a statutory inquiry, Section 14 of the Inquiries Act 2005 would have allowed the Minister, with notice, to pull the plug and bring the inquiry to an end. Every public inquiry, one way or another, is subject to the will of Parliament. In this instance, I have a feeling that we went down the wrong way in not having a statutory inquiry with the controls of such an inquiry.

Chilcot Inquiry

Lord Morris of Aberavon Excerpts

Wednesday 1st July 2015 Lords Chamber

Asked by

[Lord Morris of Aberavon]

To ask Her Majesty’s Government what progress is being made regarding the publication of the Chilcot Report.

[The Parliamentary Secretary, Cabinet Office (Lord Bridges of Headley) (Con)]

My Lords, in his letter of 15 June to the Prime Minister, Sir John Chilcot indicated that he would only be in a position to provide a realistic timetable for publication once the inquiry had received and evaluated the remaining responses from those individuals who had been given the opportunity to respond to the inquiry’s provisional criticism. In his reply, my right honourable friend the Prime Minister said,

“I … had hoped for publication of your report by now and we are fast losing patience”.

He also asked for an update from Sir John once the Maxwellisation process had been concluded.

[Lord Morris of Aberavon (Lab)]

My Lords, the Chancellor of the Exchequer also said that people were running out of patience with the inquiry. This must be particularly true of the families who lost lives. Will the Minister recall that, on 4 February 2015, Sir John Chilcot told a Commons Select Committee that there was,

“a settled body of evidence that may be added to, but it will not be subject to revision”.

Is it not deplorable that there was a 13-month argument with the former Cabinet Secretary about the disclosure of notes between Mr Bush and Mr Blair which proved unsustainable? Since Parliament is the ultimate guardian of the independence of any inquiry, and since this one seems incapable of reporting, should not the Prime Minister pull the plug, discharge the committee and, on the basis of the evidence already gathered, come to Parliament for its advice as to a way forward?

[Lord Bridges of Headley]

I start by saying that I entirely share the noble and learned Lord’s frustration, as I am sure do those who served and those who lost loved ones in Iraq. The general gist of his question—in fact, there were several questions rolled into one—was that we should scrap the inquiry. I cannot agree with the noble and learned Lord on that. First, the inquiry is independent of government and, most importantly of all, it has taken a long time to get this far—on that we agree—but it needs to be able to complete its work as quickly as possible so we can learn the lessons. Removing its members from office or stopping the inquiry now is not in the best interests of this work. However, I am sure that those involved in the inquiry will heed the views of your Lordships, especially those of the noble and learned Lord, on how long this is all taking.

Chilcot Inquiry

Lord Morris of Aberavon Excerpts

Wednesday 28th January 2015 Lords Chamber

[Lord Wallace of Saltaire]

My Lords, it is an independent inquiry, but I will ensure that that gets back to the inquiry itself.

[Lord Morris of Aberavon (Lab)]

My Lords, we are told that one of the reasons for the delay in publication is the issue of the Maxwellisation letters. Last week, the Government in their reply washed their hands of all responsibility and said that this was a matter for Chilcot. If it is correct that, after all these years, some of those letters have been sent out only in the past month or so, it would be utterly disgraceful. Is the committee still sitting, on how many days a week, and are the costs rising by the day?

[Lord Wallace of Saltaire]

My Lords, the Maxwellisation process is unavoidably a lengthy one. Noble Lords who served on the post-legislative scrutiny committee on the Inquiries Act last year—a particular special committee—raised the question of the length of time it took to carry through this process. There are issues of fairness and equity in making sure that those who may well be sharply criticised by a report should have the right to see those criticisms and comment on them before publication. That is the process that is now under way and, unfortunately, it does take some time.

Chilcot Inquiry

Lord Morris of Aberavon Excerpts

Tuesday 6th January 2015 Lords Chamber

[Lord Morris of Aberavon (Lab)]

My Lords, in setting up the inquiry, Mr Gordon Brown made a sweeping statement that all British documents, save those involving the most sensitive national security, would be made available. Has that promise been breached, in either spirit or form? The House also needs a clear, unequivocal statement as to who is responsible for apparently kicking publication into touch until after the election. Is it former or present Prime Ministers, Cabinet Secretaries or Sir John Chilcot and his committee?

[Lord Wallace of Saltaire]

My Lords, there were two questions there. The Government made all documentation available to the committee at the outset. The further question, which has taken rather longer than anticipated, was the subsequent discussion as to how many of those documents should be published. After all, some of them are highly classified and deeply sensitive about British foreign policy and relations with other major Governments and allies. I understand that that process is also now complete. When the report comes out, it will contain more than 1 million words and will publish substantial documentation from more than 200 Cabinet meetings. That is all agreed and under way. In terms of the publication, the Prime Minister has not intervened at any point—and nor, as I understand it, did his predecessor. It is up to the inquiry and its chairman to decide when the process is complete. As we know, Maxwellisation is part of the process of completing the report. When that is complete, it will be published.

Chilcot Inquiry

Lord Morris of Aberavon Excerpts

Tuesday 11th February 2014 Lords Chamber

Asked by

[Lord Morris of Aberavon]

To ask Her Majesty’s Government what are the reasons for the delay in the completion of the Chilcot Inquiry.

[Lord Morris of Aberavon (Lab)]

My Lords, I welcome the opportunity to debate the reasons for the delay in the completion of the Chilcot report. I will confine myself to some specific questions. Despite repeated requests over the years, I have never commented on the legality of the Iraq war. My duties as Attorney-General during the Kosovo war were difficult enough and many law officers have decisions to make concerning international law which are not easy. My only comments were in my recently published memoirs in which I said:

“The equivocation of the French before the Iraq war is not an argument for the failure to try for a further sustained effort”,

in the Security Council. I added:

“Or was the die already cast? The Chilcot inquiry may tell us”.

My interest in public inquiries goes back a long time. Cabinet Office records show that my name was suggested for the Franks inquiry into the Falklands War. In the event, more experienced colleagues were chosen. The Franks inquiry took six and a half months in all. The Chilcot inquiry was set up in June 2009. Its final public hearings were in February 2011 and we were told that it would deliver its report as soon as possible. In 2009, Mr Gordon Brown told Parliament:

“No British document … will be beyond the scope of the inquiry”,

and that the final report,

“will be able to disclose all but the most sensitive information—that is, all information except that which is essential to our national security”.

As a former Attorney-General, I fully understand those considerations. It is how they are interpreted that matters and whether the correct judgment is made in balancing. Mr Brown added:

“I have accepted the Cabinet Secretary’s advice that the Franks inquiry is the best precedent”.—[Official Report, Commons, 15/6/09; col. 23.]

In the difficulties about publishing Chilcot, has there been any departure from that precedent?

At that time, Mr Cameron made a number of challenges. He said that the Franks committee reported in just six months and suggested that, because of the longer period for Chilcot, people would conclude that the inquiry had been fixed to tide the Government over until after the election. A year seemed too long for Mr Cameron in 2009. Unless progress is made, it will be more than four and a half years in the case of Chilcot.

On 7 November, the Daily Telegraph reported:

“The Cabinet Office is resisting requests to make public ‘more than 130 records of conversations’ between either Mr Brown or Tony Blair … and Mr Bush … There is also a wrangle about making public ‘25 Notes from Mr Blair to President Bush’ and some ‘200 Cabinet-level discussions’”.

First, who is responsible for the delay? Secondly, what precisely are the reasons for it?

Public inquiries are set up to deal with public disquiet, to establish facts and to learn lessons. Not to publish is to undermine the whole object. Delay is unjust and justice to the public is denied. In January, in a Written Answer, Francis Maude said that,

“the completion of its report is a matter for the Inquiry Committee”.—[Official Report, Commons, 6/1/14; col. 1W.]

Later in the month, he said:

“The Iraq Inquiry has been provided with all of the documents it has requested”.—[Official Report, Commons, 20/1/14; col. 32W.]

Your Lordships may consider, from the very tight drafting of both answers, that they are less than frank.

In December, the noble Lord, Lord Hill, said that the Prime Minister had been updated by Sir John Chilcot, who had,

“reported that continuing discussions over certain classified documents had caused a delay to the Maxwellisation process, and hence publication of the report”.—[Official Report, 12/12/13; col. WA 139.]

That was much more transparent. Maxwellisation is the name for the way the common law has developed of providing a person who is criticised in a report with an opportunity to comment. It is nothing more than fairness. If you cannot resolve what should be in the contents of a report, both the inquiry and the criticised are in an intolerable situation. Following freedom of information requests, the Information Commissioner ruled in favour of disclosing the minutes of two Cabinet meetings in 2003 prior to and concerning military action in Iraq. The Cabinet Office—would you believe it?—had curiously argued that the public interest in favour of disclosure diminished with the passage of time. That is risible. It is the original long-grass argument.

The commissioner considered that there was a presumption running through the Freedom of Information Act that openness in itself is to be regarded as something which is in the public interest. The commissioner concluded that, in line with recent legal authority, material which,

“can provide a better understanding of how the decision to go to war was made is subject to an exceptionally strong public interest in disclosure”.

The Library has failed to find any record of an appeal and I am particularly grateful for its help.

On 31 July 2012, the commissioner said that he was disappointed that a ministerial veto, as allowed by the Freedom of Information Act, had been used to override his recent decision on the two Cabinet meetings to which I have referred. Why was the route of a ministerial veto followed rather than an appeal to the court as in the recent case of Plowden—or were the Government, in whatever manifestation, afraid of another adverse finding? Perhaps I may remind the House of the background statement of the policy of the Freedom of Information Act. It states:

“The Government considers that the veto should only be used in exceptional circumstances and only following a collective decision of the Cabinet”.

Has that policy been changed by this Government? Was the Cabinet consulted? If not, who took the decision? Was it the Prime Minister or the Cabinet Secretary?

I surmise that each and every word of Prime Minister Brown’s statement announcing the Chilcot inquiry had the blessing of the then Cabinet Secretary—if indeed he did not draft it. The crucial question is: how much wider is the veto now being used than the actual words used by Mr Brown, to which I have already referred, that restrictions in publication would be limited to that which was essential to national security?

A blanket refusal to disclose Cabinet discussions, especially having regard to the commissioner’s carefully considered and balanced ruling of the need to publish, seems miles wider than Mr Brown’s promise to Parliament. Will the noble Lord give a categorical answer to my question: Has Mr Brown’s promise to Parliament been breached, either in form or in spirit? Parliament was deceived at the time of Suez. It would be most unsatisfactory if any similar allegation over Iraq were not cleared up in this independent inquiry, which Mr Brown promised,

“will receive the full co-operation of the Government”.—[Official Report, Commons, 15/6/09; col. 23.]