Defence Reform Bill
Lord Roper Excerpts(10 years, 8 months ago)
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Lord Roper (LD)
My Lords, like the noble and gallant Lord, Lord Craig, I want merely to express my gratitude to my noble friend the Minister for having brought forward an amendment which, as he explained, goes somewhat further than the amendment we considered on Report. Like others who have been involved in these discussions, I am very grateful that he has taken so much care to ensure that this matter is properly dealt with and that we have in the statute a very good basis so that if at some stage we come to consider the introduction of Part 1, we will have useful material for the parliamentary consideration. I have great pleasure in saying that I am keen to support the amendment.
Lord Palmer of Childs Hill (LD)
My Lords, all credit is due not only to the noble and gallant Lord and my noble friend Lord Roper but to the Labour Front Bench for starting this ball rolling and developing it into an affirmative or, perhaps I should say, slightly super-affirmative Motion, to which I hope the House will agree.
Defence Reform Bill
Lord Roper Excerpts(10 years, 9 months ago)
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Lord Rosser
I was talking about our view that Part 1 should be withdrawn and about what happened in Committee. The Government declined to withdraw Part 1. We felt, and still feel, that it should be deleted because it provides for an untested and untried major change in defence procurement which the Government do not now intend to introduce and for which they cannot and will not be able to produce any evidence that it will provide a better alternative at some time in the future than either the existing arrangements or, significantly, the further developed DE&S model, which is not even yet up and running. That will now be a matter for a future Government, if that future Government decide to proceed with the GOCO option.
In Committee, we also moved an amendment, which we regarded as very much second-best behind the withdrawal of Part 1, for a super-affirmative order which would be required to be passed by both Houses before Part 1 could be brought into force. We have included a similar amendment in the group that we are discussing. I do not intend to go through in detail the arguments that we put forward in Committee in support of the super-affirmative. They are recorded in the Hansard of the Committee stage. They set out in detail what the super-affirmative would provide for as set out in these amendments.
The super-affirmative order is not something novel. It has been used by this Government. They added the super-affirmative procedure to the recent Crime and Courts Act in respect of any future order made by the relevant Secretary of State to modify the functions of the National Crime Agency. That super-affirmative provision in the Crime and Courts Act requires the Secretary of State to consult the persons who would be affected by an order to modify the functions of the National Crime Agency and lays down minimum periods for consultation and subsequent scrutiny. It also requires the Secretary of State to have regard to any recommendations or representations made by Parliament during the scrutiny period with the subsequent option of laying a revised draft order. I again simply make the point that we are not talking about a minor change that might be made in the future on the basis of affirmative orders but about an untested and untried major change in defence procurement involving more than £10 billion of taxpayer expenditure each year.
The amendment that has been moved by the noble and gallant Lord, Lord Craig of Radley, is an improvement on the current provision in the Bill, and we heard from the Minister—if I understood him correctly—that he will come back with an amendment at Third Reading which will be in line with that moved by the noble and gallant Lord. However, while that amendment provides for a White Paper and an impact assessment, it does not provide for an independent assessment or the involvement of the Defence Select Committee prior to an affirmative order being considered. It thus appears not to provide any minimum timescale between the production of the White Paper and the impact statement for consultation and scrutiny before any vote in Parliament.
It is worth pointing out that government departments do not always produce adequate and appropriate information to support orders they place before Parliament. We had yet another example of this only last night in this Chamber in respect of a Home Office order. Your Lordships’ Secondary Legislation Scrutiny Committee had criticised the poor quality of documentation produced by the Home Office accompanying the order and had written to the Minister of State concerned to voice its detailed concerns. When the committee received the Minister of State’s reply, it found that letter equally disappointing and wrote in its report on the order being considered last night that,
“we found the letter to be no more convincing on the merits of the policy than the Explanatory Memorandum”.
Our super-affirmative would address those potential concerns about the quality of documentation as there is provision for independent assessment and the involvement of the Defence Select Committee.
I take note of the intervention by the Minister to indicate—if I can use the expression—the Government’s acceptance of the amendment in the sense that the Minister intends to come back with a government amendment which, as I understand it, will say either the same thing or much the same thing as the amendment tabled by the noble and gallant Lord, Lord Craig of Radley. Obviously we will want to look at the amendment that the Government table at Third Reading and determine whether to support it or whether to seek to amend it.
Lord Roper (LD)
My Lords, in view of the remarks made by my noble friend the Minister in his intervention in the speech of the noble and gallant Lord, Lord Craig, saying that he intends to accept the principle of Amendment 9, I can be a good deal briefer than I would otherwise have been. Broadly, I felt after the discussion in Committee and subsequent consideration—particularly after the discussions with Mr Dunne—that it would be very important to get in the Bill the assurances about the material that the Government would produce before a decision was made on the affirmative order. That, of course, was a government amendment that was introduced in Committee after representation from a number of us that a decision should be made by affirmative order and that one could not just use Part 1 of the Bill without any further parliamentary consideration.
I believe that the situation here is the right way for us to proceed. The super-affirmative procedure to which the noble Lord, Lord Rosser, has just referred was discussed in some detail in Committee, and I initially saw some advantage in having a mechanism whereby one could look at this more carefully. On further examination, I took to heart the Minister’s view that this was rather a heavy way of tackling the problem, and that it would be possible for Parliament to be properly informed so that the debate on the affirmative order could be effective and efficient with the sort of procedures that are in Amendment 9. I therefore believe that Amendments 10 and 11 are too elaborate and that the lighter proposal in Amendment 9 is the one that the House, in principle, ought to accept, although of course we will be doing that at Third Reading rather than today.
Lord Stirrup
My Lords, I, too, have my name attached to Amendment 9. I do not wish to make the mistake of failing to accept yes for an answer, so I will merely say that I am extremely grateful to the Minister for agreeing to take this away. I look forward to seeing the amendment as drafted by my noble and gallant friend Lord Craig at Third Reading.
Defence: Nuclear Submarines
Lord Roper Excerpts(10 years, 9 months ago)
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Lord Roper (LD)
My Lords, from these Benches, I add our condolences to the family of the soldier of 32 Engineer Regiment who died yesterday.
The matter of the Statement is obviously serious and the Government have been absolutely right to act in accord with the precautionary principle. I wonder whether my noble friend can say something about the possible implications for the other two Vanguard-class submarines. Is there any question of their having to be recalled at some stage and, if so, what would be the further cost? If that were to occur, would there be any other delays in the totality of the programme?
Lord Astor of Hever
My Lords, to answer my noble friend’s last question first, there will be no delay. This is a decision that we would take in 2018 and depends on the research that we are able to carry out into the prototype reactor core. I thank my noble friend for his support for the Statement.
Defence Reform Bill
Lord Roper Excerpts(10 years, 10 months ago)
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Lord Roper
My Lords, I, too, was surprised to read these words. I had looked in the draft regulations to see whether there is anything within them which would help us. There is not. There is a reference to allowable costs in paragraphs 13 to 15, but that merely refers us back to Clause 20. It does not develop the concept of allowable costs, as I believe the noble Lord, Lord Tunnicliffe, rightly suggested it should. I wonder whether the Minister will be able to tell me that this could be looked at in the final version of the draft regulations.
Baroness Jolly
My Lords, Amendment 18P would have the effect of directing the Secretary of State for Defence to provide Parliament annually with a determination of the contract profit rate and, specifically, the process that is to be used to determine the profit rate. Before considering the amendment, it will be worth while outlining the existing process that the Bill provides for.
Under Clause 17, the contract profit rate is to be determined through six steps. Three of those steps will be determined with reference to rates that are to be calculated annually: step 1, the baseline profit rate; step 4, the SSRO funding adjustment; and step 6, the adjustment for capital employed by the contractor. Two of these steps are not new; steps 1 and 6 have their equivalents under the existing regime. The rates to be used in determining these three steps must themselves be determined annually as they will reflect the most recent accounts of companies and the SSRO in relation to the SSRO funding adjustment.
The process for determining these rates is provided for by Clause 19 and has several stages. First, the Secretary of State will issue statutory guidance containing the principles that should be used in determining the rates. Secondly, the SSRO must recommend rates, having regard to the Secretary of State’s guidance, by 31 January each year. Thirdly, upon receiving the SSRO’s recommendations, the Secretary of State must then determine and publish in the London Gazette no later than 15 March each year the rates to be used. In publishing the rates to be used, the Secretary of State must also publish the reasons for any differences from the SSRO’s recommendations.
I appreciate that at first sight this may appear to be an unnecessarily complicated process, but it has been carefully considered to fulfil a number of requirements: first, for the Secretary of State to be able to set out clear guidance on the principles that should be used in determining the rates; secondly, and crucially, for the SSRO as the independent and impartial body to be free to recommend rates in accordance with its statutory aim to set a framework that delivers a fair and reasonable price. While the SSRO must have regard to the principles established by the Secretary of State, it should also be free to consider any other matters that it considers relevant to the setting of the rates. It must be able to recommend the rates that it considers will provide a fair and reasonable return to contractors and value for money to the Government, even if that means not following the principles set out by the Secretary of State.
The amendment would require that the powers conferred by Clause 19 should be contained in regulations made by statutory instrument and therefore be subject to the same level of parliamentary scrutiny as the other regulations. While I appreciate that Parliament should exercise an appropriate level of oversight in these matters, I do not think that this proposal is proper in this instance. First, I note that this would form a potentially unhelpful precedent across government, since, as far as I am aware, none of the other regulatory bodies—such as for the railways or water—are subject to this degree of parliamentary scrutiny, even though they deal with issues of great national significance. Secondly, the Secretary of State for Defence is already subject to parliamentary oversight for his powers over the defence budget and is therefore accountable to Parliament for how he discharges these powers. The amendment would add an unhelpful degree of additional and overlapping scrutiny for this specific area of his responsibility.
In addition, this is clearly a very technical and complex issue and there is a risk that making this area subject to parliamentary debate would lead to the politicisation of profit rates which ought to be set through impartial and expert judgment. There would be scope for Parliament to be subjected to lobbying by the various interest groups, a factor that could result in pressure to set the rates either too high or too low.
Baroness Jolly
This group of amendments relates to the regulations that are to be made by statutory instrument under Part 2 and the consultation and parliamentary procedures by which those regulations may be made. There are seven amendments in this group, and I will deal with the government amendments first.
The Bill currently provides for two separate sets of regulations to be made by statutory instrument. The first is the single-source contract regulations—SSCRs—which are introduced under Clause 14(1). The SSCRs would contain all the regulations with the exception of those made under the second set of regulations, the penalty regulations, which are introduced under Clause 33. The penalty regulations would provide maximum penalty amounts under the civil penalty compliance regime provided for in Part 2. Drafts of both these statutory instruments were placed in the House of Lords Library on 22 January 2014.
The Bill provides for different parliamentary processes for these two sets of regulations, with the SSCRs to be made by the negative procedure under Clause 42(4) and the penalty regulations to be made by the affirmative procedure under Clause 33(7). I have previously discussed the recommendations of the Delegated Powers and Regulatory Reform Committee’s report on the Bill. The recommendations that the SSCRs should be subject to a first-time affirmative procedure and that the regulations made under Clause 14 should always be made by the affirmative procedure have been accepted, and the government amendments in this group make the necessary changes to the Bill.
In order to make the recommended changes to the parliamentary process, it was considered that simplifications could be made in order to allow all the regulations under Part 2 to be made in one statutory instrument rather than the two currently provided for, being the SSCRs and the penalty regulations. Amendment 19 therefore provides for provision about maximum penalties to be made under the SSCRs rather than in separate regulations. Amendments 20 to 22 make some simplifying amendments to accommodate the fact that there is now just one set of regulations, not two, and Amendment 23 provides for the new parliamentary process by which the unified SSCRs may be made. I will now address each of these amendments in turn.
Amendment 19 is a simplifying amendment. It removes the current provision for the maximum penalty amounts to be made via a separate statutory instrument—the penalty regulations—and instead provides for this to be done in the SSCRs as with all other provisions for regulations under Part 2. There is no change to the scope of provision that will be made under Part 2 as a result of this amendment, but using a single statutory instrument for all regulations under Part 2 allows for simpler provision for the parliamentary process to be used for that one statutory instrument.
Amendment 20 follows on from Amendment 19. Clause 33(6) currently provides for the penalty regulations, as a separate statutory instrument from the SSCRs, to vary the maximum penalty amounts for two purposes: first, for “different purposes” and, secondly, specifically by reference to the value of contracts. As a result of Amendment 19, the maximum penalty values will now be included in the SSCRs, while Clause 42(2) already provides for the SSCRs to make different provision for different purposes, which is a standard provision for regulations. Therefore the part of the current subsection (6) providing for different provision for different purposes is no longer required. This amendment replaces the current subsection (6) to provide only that different provision for the maximum penalty amounts may be made by reference to the value of contracts.
Amendment 21 deletes Clause 33(7), which dealt with the parliamentary process for the penalty regulations. It is no longer required because the provisions for maximum penalty amounts will now be in the SSCRs rather than in a separate statutory instrument. So this will now be covered by the parliamentary process for the SSCRs under Amendment 23.
Amendment 22 simplifies Clause 39, which provides for the review of Part 2 and the regulations made under it by the SSRO and the Secretary of State. As there will now be only one statutory instrument, the SSCRs, Clause 39(1) can be simplified to refer only to the review of the SSCRs, rather than the more general “regulations under this Part”.
The first four amendments of the group that I have now outlined make simplifying provisions in order to make all regulations under Part 2 via one statutory instrument, the SSCRs. Amendment 23 addresses two of the recommendations of the Delegated Powers and Regulatory Reform Committee relating to the parliamentary process under which the SSCRs should be made.
To begin with, it removes the current Clause 42(4), which provides that the SSCRs should be subject to the negative procedure, and replaces it by a provision reflecting those recommendations on the parliamentary process for the SSCRs: first, that they should be affirmative the first time that they are made; secondly, that any changes to the regulations related to Clause 14 should always be affirmative, as this governs which contracts will be subject to Part 2 and thus sets the scope of Part 2; and thirdly, that the affirmative procedure will also apply for any changes to regulations made under Clause 33, which relates to maximum penalty amounts and was previously to be contained in the penalty regulations. These were always to be subject to the affirmative procedure, so there is no change to the procedure as a result of this amendment. Finally, the SSCRs will follow the negative procedure for all cases other than those just outlined.
Lord Roper
My Lords, I welcome the Government’s amendments to these various clauses. They are a very full response to the report of our Delegated Powers and Regulatory Reform Committee of last December, which was responded to by the noble Lord, Lord Astor, in his letter to the committee published earlier this year. It seems that in these amendments the Government have taken fully the points that were made by the report. We are very well served by that committee, which ensures that there is the technical scrutiny to ensure that parliamentary control is maintained when there are questions of delegated powers. I feel that the Government have responded fully to the proposals of the committee. I am not sure whether it has yet had a chance to respond to the letter of the noble Lord, Lord Astor, or if there are any further points that we may need to come back to on Report, but I understand that it is generally satisfied with these amendments.
Lord Tunnicliffe
My Lords, at this point I have no objection to the government amendments, but that may be partly because I do not understand them. I shall find them easier to read when the Bill is reprinted for the Report stage but, as I say, I have no comment or objection at the moment.
I may be about to contradict myself when speaking to Amendments 22A and 23B. Amendment 22A is prompted by the industry, which has argued that the regulations arising as a result of the review should be made and updated in an open and transparent manner. It argues that an industry-wide consultation should be undertaken, the Secretary of State should have regard to that consultation and the regulations should be laid before Parliament. Amendment 23B argues essentially that the penalties regulations should be passed by the affirmative procedure on every occasion. These are penalties which could have dramatic effects.
I think that this is the last time I will speak, so I should like to congratulate the Minister on her marathon performance. I recall from when I occupied her place that it can seem a bit futile, but I know that what she has read into the record will be held to be of great value by both parliamentarians and those outside. I thank her and her officials for their efforts, and I look forward to reading with great care the products of our discussions. I also look forward to her letters.
Defence Reform Bill
Lord Roper Excerpts(10 years, 10 months ago)
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Lord Dubs (Lab)
My Lords, I want briefly to add my support for these amendments and to make one point. When the visiting forces legislation and other legislation governing the use by the United States of airbases in Britain was enacted, the technology was at a very simple stage. We did not have sophisticated techniques such as drones; we did not have any of these things. The legislation was designed for a different age when things were very simple. Because they have changed so much there is a need to look again at the way in which these bases operate. That is my simple proposition.
I understand that, when questioned on this point, the Minister said:
“There is no requirement for an additional agreement regarding the use of RAF Croughton by the United States visiting forces … The Department has no plans to review this arrangement nor review the activities undertaken by the US at the base”.
The US has been a great ally of ours. We were delighted when its forces came here and we welcomed them. Their airbases in Britain helped defend us in the war and we must not forget that, but things have moved on. The problem is that activities that were fully understandable to us, and we were happy about, when these bases were first established may now be considered in a different light. We are at least entitled to have a better understanding of what goes on there and to be assured that the uses to which the bases are put are compatible with our system, our laws and our approach to using some of these very dangerous weapons.
We need to look again at this issue. I am not saying that we should close down American bases. I share the view of the noble Baroness, Lady Stern, on drones: they have their good points and they have their bad points. However, we need to be careful before we allow even the friendliest of our allies to use bases for purposes about which we do not know enough and certainly have unease.
Lord Roper (LD)
My Lords, I shall speak briefly to this group of amendments but my remarks apply also to a later group. Comments made on this issue will, inevitably, cross from one group to the other.
Many of us have benefited from the advice which the All-Party Parliamentary Group on Drones received from Jemima Stratford QC and Mr Tim Johnston of Brick Court Chambers, which is obviously of great value. However, before we look at this issue again on Report, noble Lords may find it valuable to read the very important interim report that Ben Emmerson QC delivered to the General Assembly on 18 September 2013, which not only considers the way in which remotely controlled aircraft have been used by both this country and the United States in various parts of the world but makes a detailed inquiry into the complications and difficulties of international humanitarian law. He has not come to a conclusion on these matters but his report is of considerable value in explaining the complexities and ambiguities. Members of this House would benefit from reading that report as well as Jemima Stratford’s opinion.
Lord Judd (Lab)
My Lords, I speak in support of these amendments. The point that has already been made cannot be stressed too strongly—namely, that rules, regulations and definitions that have been adequate to date need to be reviewed in view of the immense and unforeseen scale of development in modern warfare. It would be irresponsible to assume that the current rules and definitions, which were drawn up in the past, respond adequately to the new realities.
I have absolutely no doubt that the service in which I was privileged to serve, the RAF, is fully committed at the most senior levels to implementing not just what the law says but the spirit of the law. I am sure that that is the case. If it is the case, I cannot see how reviewing the sufficiency and adequacy of existing legislation can do anything but strengthen its position. It is good that these points have been brought forward.
It is very difficult to share my next point with the Committee, as it is not clear whether the issue should be raised now or on later amendments. Reference has been made to the overlap in this regard. I am deeply concerned about whether we as legislators are taking the psychological implications of the new developments seriously enough. I am sure some of those involved in the operations are taking them very seriously. If I put it crudely, it is not out of any hostility to the people concerned; it is just to try to bring home the starkness of the reality with which we are dealing.
I was talking the other day with a good friend whose son has just got a very good engineering degree. What does he want to do with his engineering degree? His ambition is to work in computer games and eventually perhaps have his own firm, I think. There has been terrific change in the nature of this kind of activity and what it can involve. I hope I will not be accused of being irresponsibly sensational, because it does not seem to me that it is irresponsibly sensational at all. It is taking into account the realities of life. When did we begin to drift into a situation where the mental and psychological processes about playing very advanced computer games and the processes of sitting in the Nevada desert, or wherever it is, operating a machine became blurred? How do we continue to take, as we have always tried to take, the responsibility of recognising that war is a last resort and a very grave step to take? How do we now undertake warfare in the context of all sorts of humanitarian obligations and the rest? The Geneva conventions are just one example. I think that for all these reasons there has been a certain degree of complacency among legislators about what is happening and its significance, and I am sure that it is time that this was reviewed. I cannot stress strongly enough my appreciation of those who have brought this amendment forward.
Lord Roper
Perhaps I might just ask the noble and gallant Lord one question. In the report by Ben Emmerson that I quoted there is a reference to the way the United Kingdom considers targeting intelligence. It says:
“The United Kingdom has informed the Special Rapporteur that during its operations in Afghanistan targeting intelligence is ‘thoroughly scrubbed’ to ensure accuracy before authorization to proceed is given”.
Could the noble and gallant Lord explain to those of us who are not so well informed how one “scrubs” intelligence?
Lord Stirrup
First, one has to decide upon the reliability of the intelligence, because intelligence is not knowledge—there is no certainty about it. What degree of assuredness can we attach to the intelligence? What sort of cross-referencing is there? Then, everything else about the target—its structure, the things around it, the possibilities of collateral damage and all the issues properly raised under the law of armed conflict; that is, the military utility of attacking the target versus the possible risks of doing so—is gone into at great length. Certainly as far as the United Kingdom—and, in my experience, the United States—is concerned, it is done with a lawyer looking over one’s shoulder the whole time. When I was responsible for these sorts of targeting decisions in the five months after 9/11 when I was at United States Central Command, my lawyer and I were essentially joined at the hip. It had to be so and I welcomed it.
Lord Roper
My Lords, I apologise for omitting to thank my noble friend Lord Hodgson for these interesting amendments and my noble friend Lady Miller, and the noble Baroness, Lady Stern, for their contributions. I turn to a point made by my noble friend Lord Hodgson in moving the amendment when he quoted from the useful and interesting opinion received from Jemima Stratford. As I mentioned, there is an ambiguity in the approach to international law in the United States and in this country which raises some of the problems that we are having to consider today, in particular the problems that would arise—I realise that the Minister is unable to discuss the transfer of intelligence between allies—if intelligence were able to be used for targeting purposes.
I am extremely grateful for having had the chance to read the interesting interim report of Ben Emmerson QC. The problem is that the United States considers itself to be involved in a non-international armed conflict with al-Qaeda and its associated forces that are transnational in character. That is not merely its view; it is the position endorsed by the United States Supreme Court in the judgment of Hamdan v Rumsfeld. There is a problem in it having that position which, as we heard from the noble and gallant Lord, Lord Stirrup, is not the position in this country. There is a difference in the interpretation of the law. Indeed, the final report of Mr Emmerson will, I hope, help us to clarify it, but that is the problem that faces us at this stage.
We also have to realise that the United States can pray in its own defence some of the UN Security Council resolutions that were passed in 2001 following 9/11. If we look at UN Security Council Resolution 1368 of 2001, or UN Security Council Resolution 1373, we see that they almost gave the United States authority to deal with al-Qaeda wherever it was met. As I say, there is a difference in the interpretation of international law and an ambiguity that leads to some of the problems that we are discussing today. Mr Emmerson provides an interesting discussion of these matters in his report to the UN, and I hope that if we return to them on Report, it will be possible for other noble Lords to have read it.
Lord Judd
The noble Lord, Lord Roper, has raised a crucial issue. I am sure he would agree that, having stated that there is a difference in interpretation, we then have to act in the context of what is our interpretation. The danger is that we condone from premises and territory which is ours activity that may be acceptable within the United States interpretation but which is not acceptable within our interpretation. Of course, this can realm into very controversial issues, such as where does extrajudicial killing begin and end? There is the issue of rendition, as we have seen in the past, and so on. That is why it is so crucial to remember that the Minister in his very helpful response to our previous debate gave a specific assurance that he would be able to say things at this stage of our proceedings that would completely reassure us. The point is that our territory and our premises can be used only in terms of our understanding of the legal position and our interpretation of what it is all about.
I should like to make one other point. It is not just a matter of legality. I care desperately about that because I always come back to the point that, in the end, what the hell are we defending if we are not defending the principles of the rule of law and so on? We make an absolute nonsense of our commitments if we rationalise our way out of that.
I am always very worried—and this applies in British domestic legislation too—about where the dividing line between what is effective action against terrorism and extremism and all these cruel and unacceptable happenings becomes counterproductive because it begins to lend ground to those who are trying to recruit for the cause of extremism. One of the arguments that they love to use is, “look at the hypocrisy of these people”. It is, therefore, crucial to be able to demonstrate all the time that we are operating, not only in detail but in spirit, according to the principles we say we are upholding.
Lord Roper
I am grateful to the noble Lord for that intervention. He is, of course, a very old friend. However, I feel that the Minister and the noble Lord, Lord Dannatt, in their interventions in the earlier debate, made it absolutely clear that there was no question of any American remotely piloted aircraft being controlled from United Kingdom territory. I think that was the assurance that the noble Lord, Lord Judd, was seeking.
On the other point, there is a perfectly good and important debate as to what is wise and what is unwise. I agree that there is a question of potential counterproductivity and that is why there is a dilemma in considering how these things should be used—whether there is going to be a net benefit, or a net disbenefit. That is a matter which has to be assessed on each occasion.
Lord Hodgson of Astley Abbotts
The noble Lord, Lord Judd, has raised a point and I think that my noble friend has answered half of it. He has answered the point about action coming from here. What we need to find out is whether information is being passed on which others take action. If we are doing that, we are assisting an illegal act. We need to be clear about that. It is not just doing things, it is sending information that other people act on.
Lord Roper
The noble Lord is obviously right about that. I was really treating the somewhat narrower point on the earlier amendment which we had been considering rather than the wider range of activities which could take place and which was very much discussed when we were looking at the question of extraordinary rendition.
I only replied en passant to the second point which my noble friend Lord Hodgson made. I mentioned that, although we have had a very clear assurance about nothing being done from the United Kingdom, unfortunately, the Minister was unable to cover the second issue which he raised.
Baroness Miller of Chilthorne Domer
I apologise to the Minister but, as the noble Lord, Lord Rosser, does not appear to be going to give an opinion, I would like to ask him a question. His Government were farsighted enough to bring in the Regulation of Investigatory Powers Act—and obviously they were concerned that the legislative framework kept up with technology. Does he support, in principle, the idea behind our Amendment 15 that its reach should be extended to cover visiting forces? In his opinion, is that something that we should aim to do?
Defence Reform Bill
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Lord Robertson of Port Ellen (Lab)
My Lords, I declare an interest in that I work for the Cohen Group, a Washington-based consultancy led by a former Secretary of Defence, William Cohen.
I support the idea and concept of a GOCO. However, I also recognise the powerful case made by my noble friend in relation to secondary legislation. We should consider the GOCO because something radical needs to be done about defence procurement. I was Secretary of State for Defence for two and a half years, too brief a period to get to terms with the scandal that has been the continuing story of defence procurement in this country. The story of cost overruns and time overruns is deeply disturbing and worrying.
Over the past weekend, I took part in a security conference in Munich. There was a special session with a number of talented and experienced people talking about European defence and the crisis of diminishing defence budgets in the face of both existing and emerging threats. I made the point in that discussion that we were unlikely to get defence budgets stabilised or increased. Unless the case can be made to the general public that there are threats that need to be dealt with, defence budgets will continue to go down. At the moment, advocacy of the need for defence is missing.
At the same time, the case is consistently undermined by the fact that we do not use existing defence budgets properly or effectively. First, there is a multiplicity of defence projects across Europe which duplicate in many areas what we could do; a focus on items of capability which are related to the Cold War and not to future threats; and the sheer number of tanks and hopeless aircraft in the European arsenal which relate to yesterday’s enemy and not to the future. Secondly, and importantly, a large amount of money is wasted on the way in which we procure defence. As Secretary of State, I thought it was important that we should deal with that issue and look at it radically. In the strategic defence review of 1998, which I supervised, we made radical changes to defence procurement. I am sad that I did not stay there long enough to pursue it. My successors also tried and failed to get to grips with it as well. The term “smart defence” was coined by me at a press conference during my time at the Ministry of Defence, but it has become less and less smart as time has passed.
The saga continues and will do so until something radical is done. The thinking at that time was put together by me and my special adviser, Bernard Gray. He was employed by me—I took him away from the Financial Times, where he was the defence editor, in order to be my special adviser—and I frankly admit that we would not have had such a good and long-lasting defence review if it had not been for Bernard Gray’s clear thinking and his powerful purpose during that time. People criticise him now, but I believe that he is one of the few people who has the intellectual grasp and dynamic conviction to drive through the required changes. The noble Lord, Lord Levene, was appointed by Lady Thatcher to look at defence procurement, and he made a good fist of it then, but again he moved on before it could be fully put into practice. If my private sector experience since I left NATO has taught me anything, it is that execution is a critical area to focus on to get outputs instead of just excellent inputs.
The GOCO concept is certainly radical—and my noble friend is right that it is in many ways untried—but many people are watching us because many countries have exactly the same problem. We have to look at that. It is sad that the process failed, and that only one competitor—if that is the right word—was left standing at the end, but the process produced a number of proposals, as part of the tendering, that indicated that major savings could be made. There may only have been one left at the end of the day, but each competitor put forward proposals that would have saved the taxpayer money and made sure our troops got equipment much more on time. DE&S+ is second best, but it has to be tried, given the situation. The radical nature of what we have to do is utterly justified by the fact that our troops do not get the equipment at the right time and in the right form, and the taxpayer also pays well over the odds for it. If we do not think radically, the same old mess will continue.
However, my noble friend has made a powerful case for the GOCO, having been shunted into a siding, remaining there until it is a reality and we have had time to test it properly—and secondary legislation is not the right way to do that. Therefore, Amendment 25 is a good way of making sure that when the day comes, as I am sure it will, when we go down the GOCO route, there will be the proper scrutiny that the idea deserves.
Lord Roper (LD)
My Lords, I believe we should give consideration to Part 1 at this time, and that it should remain in the Bill. I am therefore unable to support the suggestions by the noble Lord, Lord Rosser, that these clauses do not stand part of the Bill. His points about the gap between now and when the GOCO comes into effect are important; that is why I asked the Secretary of State, when he came to see some of us, for an assurance that there would be an opportunity for Parliament to make a clear decision before Part 1 came into operation. That is why the Minister tabled Amendment 24, suggesting that there would have to be affirmative Motions in both Houses. My noble friend Lord Palmer and I have added our names to that, because it is in response to the request that we made to the Secretary of State. Since then the noble Lord, Lord Rosser, has tabled Amendment 25.
The case for a super-affirmative resolution needs to be examined. It will be useful between now and Report to consider the value and possibilities of such a procedure, perhaps making rather more explicit the scrutiny which would be given in this House, as well as by the Defence Committee of the House of Commons, of any proposal at the time when it is put forward. The super-affirmative procedure is a useful development of recent years, and there is a case for its consideration.
Lord Rosser
This group also contains Amendment 9. Amendment 7 addresses the issue of scrutiny and transparency over increases in the cost of defence contracts, whether entered into by the Secretary of State or a contractor acting on behalf of the Secretary of State. The second amendment provides for scrutiny of financial assistance given to a contractor by the Secretary of State under the terms of Clause 2.
The form of scrutiny provided for in the amendments is parliamentary, through reports to both Houses, and with two other requirements as set out. The Secretary of State would not be able to approve any adjustment of the total price provided for in the contract or provide financial assistance to a contractor unless the required reports had been laid.
With the responsibility for keeping within the original financial terms of the contract likely to become more remote from the Ministry of Defence and the Secretary of State if the provisions of Clause 1 are implemented, there is a need to be precise about what checks and controls will be in place and how Parliament will be kept advised and aware of increases in the cost of defence contracts. Likewise, with the Secretary of State being given power under the Bill to give financial assistance to a contractor on terms and conditions that the Secretary of State thinks appropriate, there is a need to be precise about what checks and controls will be in place over the use of that power and of taxpayers’ money, and how Parliament will be kept advised and aware of how and when the power is being used.
In that regard, perhaps the Minister could give some examples of the kind of circumstances in which this power for the Secretary of State to give financial assistance might be used and is intended under the terms of Clause 2. It would be helpful if the Minister could say whether the new DE&S organisation that will come in from April as a bespoke central government trading entity with greater private sector involvement and new freedoms and flexibilities will lead to any changes in the current arrangements for reporting on or dealing with any increases in the cost of defence contracts or changes in the role of the Secretary of State in that regard. I beg to move.
Lord Roper
My Lords, I would be grateful if my noble friend in replying to this debate could give us more information on why Clause 2 is necessary and what sort of financial assistance we are discussing here.
Lord Astor of Hever
My Lords, Amendment 7 would require the Secretary of State to withhold approval on any relevant contract price change until a detailed report has been laid before both Houses setting out the circumstances why the increased price is required. The amendment also requires the Secretary of State to write to the chairs of the relevant parliamentary committees, which I assume to be the House of Commons Defence Select Committee and the Public Accounts Committee, telling them that the report has been laid. Although I fully support the principle of being transparent with Parliament regarding the performance of the defence equipment programme, I do not believe that this amendment is appropriate, as it would significantly constrain the operational freedom of the Secretary of State and the department. The amendment is also not required as the performance of the equipment programme is already regularly reported on, including by the National Audit Office, and scrutinised by Parliament.
In addition, the proposal would introduce significant practical issues. Under the proposal, every change of price within a contract managed by the future GOCO would require a report to be laid before both Houses. Given that DE&S manages many thousands of contracts, this requirement could impose an unmanageable burden on the GOCO and the department. Gaining better control over the schedule delivery and cost of the equipment programme is a fundamental part of the likely future GOCO arrangements, and that will not be helped by imposing an excessively burdensome reporting constraint on the GOCO. Indeed, it could result in the opposite effect. The amendment also provides no mechanism for how contract price changes would be approved while Parliament is in recess. It is clearly unreasonable for the day-to-day operation of the department and GOCO in delivering equipment and support to the front line to be constrained in this fashion.
Turning to Amendment 9, it is important to stress that Clause 2 of the Bill is designed as a fallback option to be used as a last resort in circumstances where a GOCO company is in need of financial assistance and unable to obtain it from the commercial market at acceptable rates. We would expect a future contractor to be a financially robust company that would only very rarely need to seek financial assistance from the market and that, should it need to do so, the assistance required would be available on acceptable commercial terms. Therefore, the power to provide financial assistance to the contractor from the Secretary of State is anticipated to be required only in extremely rare circumstances and as a last option to prevent the business from becoming insolvent and ensure business continuity. Clearly, continuity is critical and must be ensured when the business in question is the provision of defence equipment procurement and support services that are vital to supporting our troops on the front line. That risk must therefore be effectively managed. A further important point is that the Ministry of Defence would seek to claw back any financial assistance provided under this clause through deductions from future contractual payments to the GOCO.
The effect of the amendment is to require the Secretary of State to withhold approval for the grant of financial assistance until a report has been laid before both Houses setting out why financial assistance is required and until he has written to the relevant chairs of the parliamentary committees telling them that the report has been laid.
The purpose of this amendment is about ensuring transparency to Parliament—a principle, as I said in my opening remarks, that I fully support. I understand and agree with the desire for Parliament to be kept fully informed and to have the opportunity to consider and comment on the provision of financial assistance from Government funds. However, although the amendment seeks only to constrain the ability of the Secretary of State to provide financial assistance—to the extent that he could not do so until the report has been provided to Parliament—it would have the effect of introducing a time delay to the provision of such assistance, which could have very significant consequences if assistance is required urgently to ensure business continuity.
Lord Roper
Before my noble friend sits down, could he explain—I thought I understood this but now understand it less—whether the reference in Clause 2 to “a contractor” is to the GOCO contractor or to an individual company that is supplying goods to the Ministry of Defence? That is not totally clear.
Lord Astor of Hever
My Lords, I totally agree with my noble friend. Before Committee I had a long debate with the team about this, and we changed my speaking notes radically. We changed “‘contractor” to “GOCO” in many cases. The answer to my noble friend’s question is GOCO, but the terms “contractor” and “GOCO” are interchangeable as far as the Bill is concerned. One can use both when describing provisions in Part 1 of the Bill, but for consistency and clarity we have decided, in my speaking notes, to use the term “GOCO” as far as possible. I note that a “contractor” slipped through the net.
In the light of what I have just said, I need to resist these amendments as unnecessary, and I hope the noble Lords will withdraw Amendment 7 and not move Amendment 9.
Energy Bill
Lord Roper Excerpts(11 years, 5 months ago)
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Lord Oxburgh
Returning to the amendment, the message here for the Government is that with this Bill they are taking quite extraordinary powers, and those powers are going to have to be exercised to a degree that was probably not anticipated when the Bill was originally drafted, simply because we have run out of time to do things in a more orderly way. Whether or not we need annual reports, the important message for the Government to get is that, given that these extraordinary powers are there and will be required, that also imposes on the Government a requirement for an extraordinary and conscientious degree of reporting over that period.
Lord Roper
My Lords, like the noble Lord, Lord Oxburgh, and indeed the noble Baroness, Lady Worthington, in moving her amendment, it seems to me that, given that we have an annual energy statement, which is a useful document, it is not as if we are inventing a demand for a new document. The argument is always made that there would be costs involved, but on this occasion what is being asked is merely that something which already appears should become a statutory document. I therefore await with interest what the Minister has to say.
Lord Roper
“( ) An order under subsection (1) or (10) is subject to annulment in pursuance of a resolution of either House of Parliament.”
Lord Roper
My Lords, Amendment 50G is tabled in my name and that of my noble friend Lord Teverson. This amendment is parallel to some discussions that we had during our previous day in Committee when we were considering a nuclear regulatory organisation and taking up references in the report of your Lordships’ Delegated Powers and Regulatory Reform Committee. Two paragraphs of the report discussed the possibilities of modifying licences under Clause 127(1) and orders about domestic supply contracts in Clause 127(10).
As the noble Lord, Lord Whitty, has made clear, this gives power to the Secretary of State to intervene in an area that until now has been the responsibility of the regulator. The argument put forward by the department in the memorandum that it sent to the Delegated Powers Committee was that there was no need for any form of parliamentary scrutiny because all that we are giving the Secretary of State power to do is something that could already be done by Ofgem. That needs to be examined rather more carefully, which was also the view of the Delegated Powers Committee. This is the single instance in the Bill when the Secretary of State is given power to modify the licences without parliamentary scrutiny; in each of the other six cases, the negative procedure is indicated. We have already seen the discussions. This is an area of considerable public and political interest. Therefore, if the Secretary of State is to intervene and in some sense override the position of the regulator, it appears to the Delegated Powers Committee that he ought to be answerable to Parliament and that, as in other cases under powers conferred elsewhere in the Bill, it should require the draft negative procedure. As on the previous occasion, we have not seen the reply from the department to the Delegated Powers Committee so we would like an assurance from the Minister about how she is going to reply to the report.
Clause 127(10) is a very complicated power to make orders about domestic supply contracts. Similarly, it seems surprising that this order-making power is subject to no parliamentary control. Although paragraph 358 of the memorandum that the department submitted to the Delegated Powers Committee explained why the definitions could not appropriately be included in the Bill, it did not really explain why there is no provision for parliamentary scrutiny. This amendment is put forward by my noble friend and me in order to give the Minister an opportunity to explain what the reaction of the department to the report of the Delegated Powers Committee is likely to be.
I tabled a request for a debate on clause stand part before I had had a chance to see the amendments tabled by the noble Lord, Lord Whitty. In view of the long discussions that we have had on them and on the amendments tabled by my noble friend Lady Maddock and me, I have no intention of pursuing that debate. I beg to move.
Lord Grantchester
My Lords, Amendment 50G would require the Secretary of State to present proposals to Parliament before making any changes to the terms of licence conditions under powers in Clause 127. However, while the Secretary of State is obliged to consult suppliers and Ofgem as well as any other person he thinks relevant, he is not obliged to present the proposals to Parliament for scrutiny. The Delegated Powers and Regulatory Reform Committee questioned the appropriateness of this in its report on the Bill, and drew attention to Clause 127(10). It stated:
“As is candidly acknowledged in paragraph 358 of the memorandum, the distinction between discretionary and principal terms ‘is central to the function of the clause’. It therefore seems to us surprising that the order-making power is subject to no Parliamentary control, and that paragraph 358 -while explaining why full definitions could not appropriately be included in the Bill - does not explain why there is no provision for Parliamentary scrutiny”.
Why do the Government deem it necessary to consult the industry and Ofgem but not Parliament or consumers?
Throughout the Committee’s scrutiny of the Bill, several noble Lords have highlighted the extensive enabling powers given to the Secretary of State. This fifth report of the Delegated Powers and Regulatory Reform Committee is also highly critical, rather uniquely for that committee, in stating that there is little provision in many chapters in the Bill,
“that does not involve the delegation of legislative powers”.
We offer our support to this amendment in order to ensure that any such order is given appropriate scrutiny by Parliament by the negative resolution procedure, as recommended by your Lordships’ Delegated Powers and Regulatory Reform Committee.
Baroness Verma
My Lords, I am extremely grateful to my noble friend Lord Roper for raising the issue in Amendment 50G that would make the use of powers set out in this clause subject to annulment resulting from a resolution of either House. Noble Lords will be aware that the Delegated Powers and Regulatory Reform Committee has recommended that the power of modification conferred by Clause 127(1) and the order-making powers in Clause 127(10) should require the draft negative procedure. We are looking at these recommendations, along with the others made by the committee, and will respond to it in due course. I therefore hope that my noble friend will withdraw the amendment.
Lord Roper
My Lords, I am grateful to the Minister for that reply. We await with interest the full response from the department to the Delegated Powers and Regulatory Reform Committee. I understand that it has already received a substantial response from the department that it will consider at its meeting tomorrow, and that it is possible that when we meet on Thursday we will have the results of its report and the department’s response, which will perhaps be of value to us. I shall withdraw the amendment at this stage, but if we do not have a satisfactory response on Report then it will be necessary to return to it. I beg leave to withdraw the amendment.
Defence Capabilities: EUC Report
Lord Roper Excerpts(12 years, 2 months ago)
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Lord Roper
My Lords, I find myself rather more in agreement with the majority of the members of the committee than I do with the noble Lord, Lord Gilbert. I congratulate my noble friend and his sub-committee on the report and on securing this debate. The noble Lord, Lord Gilbert, is of course right in one matter. Although the report is the result of the work of the sub-committee, it is the last report which, as chairman of the European Union Committee, I agreed before ceasing to be chairman of that committee, and therefore he quite rightly says that my name appears on it. I am sorry I missed the errors to which he has drawn attention. I read it at the time and I thought that it was a very good report.
Like many reports from the European Union Committee, this one will be extremely valuable for the wider discussion of ESDP issues not only in this House, but outside. Although, as the noble Lord, Lord Gilbert, has said, a number of things in it have been said before, they are put together in a context and with a relevance that, given the current situation, I believe to be particularly useful. Perhaps I may also say a word about the ministerial response from Sir Gerald Howarth as he now is, but who at the time was the Minister for International Security Strategy. It was a helpful and positive response, perhaps more positive than some would have expected him to make. But, again, it shows the value of the committee in holding the Government to account on areas of their activity. Given that ESDP and CFSP are intergovernmental matters, it is of particular importance that national Parliaments should be monitoring them and paying them proper attention. That is because these are not areas in which the European Parliament has co-decision, they are matters for which national Parliaments have primary responsibility in terms of watching the activities of their own national Governments.
Rather like the noble Lord, Lord Hannay, I have to say that the progress which has been made on defence has in many ways been disappointing. Progress since Lisbon is not as significant as one might have been expected, and the report sets out some of the reasons why that has been the case. One should perhaps look at those. It is clear that falling defence expenditure has made life more difficult. Also, as a number of noble Lords have said, there are difficulties in generating forces because of the vast numbers of non-deployable forces, and the fact that in our defence expenditure, we are not using the money. We are big spenders, but we are bad spenders, a point made particularly by the noble Lords, Lord Teverson and Lord Robertson of Port Ellen. Over the period there has been a certain UK reticence about European defence because of the historic misgivings that more European defence means in some way less NATO. That I believe has changed with the French return to the integrated military command of NATO and indeed has been reinforced in some ways by the UK/French treaties.
One of the other ways we have seen declining capabilities is that in spite of a good deal of discussion about pooling and sharing, and now in NATO of smart procurement, relatively little progress has been made. The noble Lord, Lord Robertson of Port Ellen, mentioned the AWACS and, since then, there has been the collective purchase of air transport aircraft by a number of countries. We talk about duplication, and one of the areas in which there is great duplication is in the 27 ministries of defence and structures of Armed Forces that do the same thing in many different places. We cannot get rid of them quickly, but there ought to be economies in co-ordination. However, any rationalisation of this sort would mean a loss of jobs in some parts of those ministries of defence and, indeed in the command structures of the Armed Forces. This has certainly led to considerable institutional resistance to pooling and sharing. Over here as elsewhere, turkeys do not usually vote for an early Christmas. We have to see that as one of the resistances to change in a number of areas of co-operation.
The discussion that we had on the Floor of the House yesterday following the Question of the noble Lord, Lord Anderson, on the European Defence Agency showed the continuing value of the agency, and it is important that the sub-committee has also been examining that in recent months. But, again, one can regret, as is discussed in the report, that it has not fulfilled its potential; it should have been able to do more and one should not be too complacent about it. We await the imminent decision of the Government, which we now expect in the late autumn—I am not quite sure when the autumn gets to be late. The review of the European Defence Agency being carried out by the Government may explain the extraordinary omission of defence from the list of topics in the review of the balance of competences announced by my right honourable friend the Foreign Secretary yesterday. In the Written Statement in Hansard, there is a list of all the departments that are going to be considered in the balance of competences, but, for some reason, defence is omitted. Perhaps the Minister will be able to explain the omission in his reply.
Relations between NATO and the European Union are obviously of great importance and our noble friend the High Representative has followed the example of her predecessors. One can have good relations personally between the secretaries-general of the two institutions, but while we still have the problems of Cypriot attitudes within the European Union and of Turkish attitudes within NATO, the chances of our being able to use the facilities and the Berlin Plus machinery, apart from Althea, are held back. That is another barrier to effectiveness in co-operation and it has certainly handicapped our development.
There is one point to which consideration might be given again—again, it depends on what future role the British Government play in the European Defence Agency. The Turks had certain access to one of the predecessors of the European Defence Agency, of much smaller capacity, which existed under the WEU—as did the Norwegians, even though they were not members of each. The Norwegians have been allowed to have access to and membership of the European Defence Agency. That is the sort of thing that might—I repeat, might—help a little in facilitating relations with Turkey, if that issue could be re-examined. I do not know whether it is practical, but at least it might be of some advantage.
Having said that things have gone wrong, I very much agree with the noble Lord, Lord Jay, that, on the positive side, there have been successes. There have been missions, of which I shall give three examples, where the European capacity has provided added value, which is what we are looking for. The first of those was the deployment of EUFOR in Chad in 2008-09. It was certainly very helpful in preventing the difficult situation in Chad being affected by the disruption in Darfur. It would not have been something that NATO would have undertaken and is therefore a particularly good example—Mali may well be of a similar kind.
Similarly, although at first sight the fact that we have parallel anti-piracy operations of EU NAVFOR Atalanta and of NATO might seem a bad example of duplication, they have in fact provided extra flexibilities, with countries which might not wish to be associated with an operation which was exclusively NATO having been able to come in and involve themselves because of the European Union parallel activity. The existence of the EU NAVFOR operation has provided added value there.
Finally, after a period in which NATO ceased to have an active presence in Bosnia and Herzegovina, the European Union military and police missions in that very difficult part of the west Balkans have certainly played an important, indeed critical, role in assisting the maintenance of stability. The EU was able to bring a range of competences to play.
In conclusion, I once again congratulate my noble friend and the sub-committee on producing an extremely valuable and comprehensive report. I ask my noble friend the Minister to reassure us that the omission of defence from the review of European Union competences does not mean that the Government have taken the view that the European Union has no competence in this field.