Afghan Interpreters: Security Clearance

Debate between Lord Pannick and Earl Howe

Monday 17th June 2019 Lords Chamber

[Earl Howe]

Yes, it may, and the noble Lord is right that that is certainly a risk if it is perceived that the UK is treating anyone unfairly. We are very conscious of that. At the same time, it is not fair on the individual who applies to work—in these cases, for NATO in Afghanistan—to overlook their personal security, that of their families and the measures that would be needed to protect both the individual and their families in those circumstances.

[Lord Pannick (CB)]

My Lords, the noble Earl has said on three occasions now that security clearance is a matter of assessing not just the individual’s loyalty but their personal safety and that of their family. Can he explain how the individual’s personal safety is at greater risk now than when they were in Afghanistan?

[Earl Howe]

My Lords, the threshold for MoD security clearance is as it is because of the intensity of operations and previous security incidents that have occurred in theatre. The protection of our personnel is the highest priority. We are talking not always just about immediate protection from armed force but protection from the risk of coercion and exploitation.

Investigatory Powers Bill

Debate between Lord Pannick and Earl Howe

Monday 11th July 2016 Lords Chamber

[Earl Howe]

It is really quite difficult for me to answer the noble Lord’s question on the “Five Eyes”: it has to be a question for the other members of that group. The approach we have taken is consonant with our general wish, as a country, to hold Ministers to account for important decisions taken about national security and privacy, rather than to consign those decisions to the court. Nevertheless, we believe there is a role for a judicial commissioner to approve what Ministers do. That double lock is the formula which most people in the other place were comfortable with. That is probably all I can say on that score. I hope that the noble Lord will reflect on the case of Lee Rigby, which is a good example of how a Minister was directly accountable to Parliament, albeit in secret session but nevertheless fully accountable to a committee of Parliament. I am sure there are other examples where that has occurred.

[Lord Pannick]

Before the Minister sits down, could I test his patience? Will he write to me on the question that I raised, which is whether or not the Bill will expand the scope of the authorisation powers of the Secretary of State to new areas or whether it simply continues the existing scope of those powers? If the Bill does confer an authorisation power on the Secretary of State in relation to a wider scope, could he please explain why?

[Earl Howe]

I should be happy to write to the noble Lord on that point.

--- Later in debate ---

[Earl Howe]

My Lords, in moving Amendment 38, I will speak also to Amendments 117, 118, 120, 155, 157, 162, 163, 165, 166, 203, 220 and 223. I recognise that the Opposition and the Scottish National Party raised concerns about trade union protections in the Public Bill Committee in the other place. I know that it has been suggested that investigatory powers may have been used in the past to interfere with legitimate trade union activity.

Allow me to repeat what was said in the Commons. The agencies have never been interested in investigating legitimate trade union activity. The Security Service Act 1989 and the Intelligence Services Act 1994 limit the activities of the agencies. Both Acts make it explicit that the agencies cannot act to further the interests of any political party. It goes without saying that all the agencies take these duties very seriously.

The Government therefore agreed an opposition amendment on Report in the Commons to what is now Clause 20 of the Bill, making explicit that legitimate trade union activity would never be sufficient grounds of itself for an interception warrant application to be considered necessary.

These amendments read across protections from that amendment to all the relevant provisions in the Bill. It would still permit public authorities to apply for a warrant or authorisation, or issue new or varied data retention notices under Part 4, relating to members or officials of a trade union considered to be a legitimate intelligence target, but it makes explicit that legitimate trade union activity would never be sufficient grounds, of itself, for a warrant, authorisation or notice to be considered necessary. Accordingly, I beg to move.

[Lord Pannick]

The noble Earl recognises in his amendment that legitimate trade union activities would not of themselves be sufficient to establish the necessity of a warrant. I wonder whether the Government’s position is that they also recognise that legitimate trade union activities could not be relevant to the issue of a warrant, because the amendment does not go that far. If the Government do not recognise that, can they give a practical example of where legitimate trade union activities—I emphasise legitimate—could even be relevant to the issue of a warrant?

[Earl Howe]

I cannot do so and I am not sure that it is necessary for me to do so, because if, as I have explained, legitimate trade union activity is never sufficient grounds of itself for a warrant, the question of relevance does not arise.

Medical Innovation Bill [HL]

Debate between Lord Pannick and Earl Howe

Friday 23rd January 2015 Lords Chamber

[Earl Howe]

I am grateful to the noble and learned Lord. Obviously, I must take account of his expert view, but the fear that I was about to articulate is that if you require a doctor to register the details and results of whatever innovative treatment he or she may have administered on some kind of data-capturing scheme in the way suggested by the noble Lord, Lord Hunt, that would constitute part of the requirement for the doctor to demonstrate that he or she has acted responsibly, and thus not negligently. Therefore, if the amendment were accepted, the result could be that a failure to record would be part of the picture when deciding whether a doctor had acted negligently.

If that point is accepted—I expect the noble Lord, Lord Pannick, to take me to task on it—my submission is that that would be a disproportionate requirement.

[Lord Pannick]

I understand the noble Earl’s concern that if there is an obligation to report the results, that might have an effect on the common law Bolam test, but surely it would not, because of the contents of Clause 2(1), which states:

“Nothing in section 1 … affects any rule of the common law to the effect that a departure from the existing range of accepted medical treatments for a condition is not negligent if supported by a responsible body of medical opinion”.

I therefore understand that under the Bill—the noble Earl can tell me whether I am right or wrong—the doctor has two means of defending himself or herself. One is the Bolam test at common law; the other is to take advantage of the procedures of the Bill. If one of the procedures of the Bill is a duty to report, that does not affect the general Bolam test under Clause 2(1).

[Earl Howe]

My Lords, I take the point made by the noble Lord, Lord Pannick. My point was not that the amendment would alter the effect of Clause 2(1). It would not have an effect on the common law, but it would create a more burdensome test under the Bill. That is troublesome to me, because to do that would in itself impose requirements which go beyond the current Bolam test of negligence. It would mean that the test of clinical negligence was more burdensome under the Bill than under the common law.

Mental Health (Approval Functions) Bill

Debate between Lord Pannick and Earl Howe

Wednesday 31st October 2012 Lords Chamber

[Earl Howe]

My Lords, I again express my sincere gratitude to noble Lords who have spoken in this debate for recognising both the seriousness of the issue and the need for rapid action to resolve it. The expertise and wisdom that noble Lords bring to bear on these difficult questions has been extremely valuable. Regardless of the urgency, this is a matter that demands proper scrutiny, and that is exactly what the House is providing today, albeit within abnormal time constraints.

It is also important to record, once again, our appreciation of the invaluable help and advice that we have received from partners such as Mind, Rethink and the Royal College of Psychiatrists. Their primary concern is naturally those whom they represent so ably, but we are genuinely grateful for the mature and calm way that they have responded. We shared the same ultimate objective—to do what is best for the patients affected by a technical error.

I shall now do my best to address the questions put to me. Perhaps I may begin with the questions posed by the noble Lord, Lord Pannick, who relayed the concerns of the Constitution Committee. One of those concerns was why the Bill is drafted as it is, bearing in mind that the source of the mischief was the inappropriate delegation by strategic health authorities, resulting in the technical irregularity to which I have alluded. The answer to that question is that because we do not know the exact administrative arrangements that were in place before 2002 when SHAs came into being, it was impossible to limit in the way that the noble Lord suggested the framing of Clause 1. He suggested an addition at the end of Clause 1(1) specifying whether or not the SHAs had legal power to delegate. I can understand why the noble Lord made that suggestion, but we wanted to make sure that we captured any events of which we are currently unaware that may have occurred prior to 2002, before strategic health authorities were set up.

[Lord Pannick]

My Lords, because we are not going to have a full Committee stage, I hope that the Minister will indulge me in relation to this matter. Is there reason to think that there is any problem whatever other than delegation? I appreciate that it may relate to events prior to 2002, but surely it is only improper or possibly improper delegation of functions that is the mischief here.

[Earl Howe]

The main mischief, I respectfully suggest to the noble Lord, is that the panels which approved the clinicians involved did not, strictly speaking, have the direct power to do that. That is the issue that the Bill tries to capture. The Bill deliberately does not include a comprehensive list of which bodies or persons believed in good faith that they were exercising the approvals function in the past. If we limited the Bill in the way that the noble Lord suggests, we would run the risk of failing to cover some of the approvals given by bodies that we may otherwise have failed to list. I ask the noble Lord to accept that the way in which the Bill is drafted is in the form of a blanket, which gives us certainty that we may not inadvertently have left out any bodies prior to 2002 that may have been guilty of a similar lack of authority.

Health and Social Care Bill

Debate between Lord Pannick and Earl Howe

Tuesday 13th March 2012 Lords Chamber

[Earl Howe]

My noble friend expresses the position exactly. In answer to the noble Lord, Lord Wills, if a court in the future were to arrive at a judgment that all of us here would consider adverse, of course the Government would intervene. However, in our view, it is now highly unwise at this point to try to frame an amendment to put these matters beyond doubt in the way that the noble Baroness seeks to do because any attempt to do so is almost certain to lead to ambiguity and doubt about the applicability of the Act in other areas. That is the point. Of course I can pick holes in the drafting of this amendment, but that is not the central issue. The issue is the wider one to which I alluded earlier.

[Lord Pannick]

Would not any court regard this amendment as specifically designed to deal with the YL problem? It would not regard it as casting doubt on anything else.

[Earl Howe]

No loophole is created by YL. That was closed in Section 145 of the Health and Social Care Act 2008. While I listened with care to the noble Lord, Lord Low, who set out the background to the YL case very ably, I disagreed with him completely. This is not unfinished business from YL. That matter was decisively closed by the previous Government in the 2008 Act.

I move to another point raised by my noble friend Lord Lester. The Government have established an independent commission, due to report at the end of this year, which is looking across the board at how human rights are protected in the UK to see whether things can be done better. The topic of Section 6 of the Human Rights Act featured in various responses to the commission’s consultation last year and has already featured in the commission’s discussions. The Government’s view is that the receipt of the commission’s final report will provide the right moment for us to consider rights protection in the round, including any issues surrounding the scope and operation of Section 6.

I recognise the noble Baroness’s point about the amendment made in 2008 to specify that providers of residential care are bound by the Human Rights Act. However, that does not change my argument. As the noble Lord, Lord Low, reminded us, the 2008 amendment was necessary in order to overturn the contrary court judgment in the case of YL, but the Government at the time deliberately resisted any wider change for the very reason that I am resisting wider change today. I realise that my response is not the one that many noble Lords wish to hear.