Attorney-General’s Legal Advice

Debate between Lord Browne of Ladyton and Earl Howe

Wednesday 25th September 2019 Lords Chamber

[Earl Howe]

My right honourable and learned friend has said, in terms, that he accepts the court’s judgment—the Government got it wrong. He has been clear that it is now right that we ensure that any future decisions of this nature conform to the judgment of the Supreme Court. If my noble friend is requiring my right honourable and learned friend to make an apology for the legal view that he took during the course of the case, I do not think that is appropriate. The Supreme Court has disagreed with the Government’s legal view, but that is not the same as saying that the Government’s position was not tenable in the first place.

[Lord Browne of Ladyton (Lab)]

My Lords, with respect, the noble Earl, Lord Howe, did not answer the question that the noble Lord, Lord Campbell, asked. The fact is that nobody believes that the Government sought the Prorogation of Parliament to prepare a Queen’s Speech—not even the government Ministers or other people who are peddling this. The evidence that was not the reason was found in the papers presented to the Scottish court, which revealed the real thinking of the Government. The question the noble Lord, Lord Campbell, asked was: why, in the context of the litigation, was no ministerial statement, far less a prime ministerial statement, put before the court to explain in their own words—not through their lawyers— why the Government sought a Prorogation? Why did the Government not have the courage to put that into a statement? Was it fear that government Ministers would perjure themselves if they did this and swore an oath in that statement?

[Earl Howe]

My Lords, I have already given the reason why that did not happen: any advice that was given to the Prime Minister would have been covered by legal privilege, and it was judged inappropriate to disclose anything of that nature to the court. The Government have been clear about why we need a Queen’s Speech—we want to deliver what the public want and we urgently need to consider how to advance that work in advance of a Queen’s Speech. It was against this background that the Prorogation of Parliament was sought.

Torture Overseas: Ministry of Defence Policy

Debate between Lord Browne of Ladyton and Earl Howe

Monday 20th May 2019 Lords Chamber

[Earl Howe]

My noble friend is absolutely right: torture is never justified, and the Government will not countenance a situation where they are complicit in it. The internal MoD guidance was intended to have exactly the same meaning as the consolidated guidance. We now realise that there is scope for ambiguity. That ambiguity will be removed when the guidance is revised, and we will do that upon receipt of the Information Commissioner’s comprehensive advice on how the government-wide guidance should be amended.

[Lord Browne of Ladyton (Lab)]

My Lords, in June 2018 the Intelligence and Security Committee published a report, as has already been referred to. Recommendation JJ, which can be found on page 103 of annexe A, specifically says that the consolidated guidance,

“is insufficiently clear as to the role of Ministers, and what—in broad terms—can and cannot be authorised. For example, the Guidance should specifically refer to the prohibition on torture enshrined in domestic and international law to make it clear that Ministers cannot lawfully authorise action which they know or believe would result in torture”.

The Government gave a very long response to that, with which I will not take up the House’s time—others can read it for themselves—but in the last sentence the Government promised to,

“consider this recommendation further in light of any proposals from the Investigatory Powers Commissioner”.

How on earth has it come about that someone in the Ministry of Defence can draft a policy document in the light of that specific recommendation in the terms that have been revealed today and not even seek the IPCO’s views on it? There is something fundamentally wrong with the way in which that part of the MoD operates and it has to be fixed.

[Earl Howe]

The noble Lord should bear in mind that this has never been a live issue in the Ministry of Defence. The point that he makes is also weakened by the fact that the Investigatory Powers Commissioner does not judge every piece of paper that happens to circulate across government; he or she will judge a department by its actions. To date, the commissioner has judged the Ministry of Defence to have acted entirely in accordance with the consolidated guidance.

If I mis-spoke in responding to my noble friend Lord King and referred to the Investigatory Powers Commissioner as the Information Commissioner, I apologise. I did not mean to do that.

Modernising Defence Programme

Debate between Lord Browne of Ladyton and Earl Howe

Tuesday 18th December 2018 Lords Chamber

[Earl Howe]

My Lords, I can deal very quickly with the second part of the noble and gallant Lord’s question. The Ministry of Defence stands ready to support other government departments if called upon, and if we find that the resources of those departments are insufficient in themselves. Having said that, we have received no formal bids as yet from other departments, despite the fact that we have asked them what they envisage requiring. There will be approximately 3,500 personnel standing ready in case of need to meet such situations.

Resilience has been a major theme of our deliberations. There are quite a number of strands to that. One is to look carefully at how we can enhance our chemical, biological, radiological and nuclear defence capabilities, investing further in Porton Down. We are also, as the report makes clear, enhancing our ability to share submarine threat data with our closest NATO allies. We are improving our secure communications, protecting our networks from cyberattacks and improving our ability to exchange information with NATO partners, as I have said.

We are also clear that we need to invest in improving power-generation capabilities for both Type 23 and Type 45 Royal Navy ships, enhancing their overall capability and productivity. There has been criticism, as I am sure the noble and gallant Lord is aware, of the extent to which some Royal Navy ships have been kept in port rather than being deployed. We are clear that we need to enable the Royal Navy to do better in that area.

The other obvious example of improving resilience is increasing the provision of spares and support to enhance global deployability and presence, particularly as regards the helicopter fleet.

[Lord Browne of Ladyton (Lab)]

My Lords, I woke this morning to the news of the transformation fund of £160 million. Clearly, that was what the MoD briefed last night from this Statement because that was what the Secretary of State wanted the media to focus on—and they have done, for most of today. So I too will focus on this in your Lordships’ House.

Since the Statement was first made, the MoD has briefed further that the fund will be used in part to look at artificial intelligence and its uses in a series of new programmes, as well as—this is the phrase that I understand was used—tackling threats to submarines. These must be new threats. The Statement itself expresses another ambition for it, saying:

“This fund will be available for new innovative military capability which allows us to stay one step ahead of our adversaries”.


This seems a heroic ambition for £160 million. I say that because, in 2014, Google paid £400 million for a University College London spin-out called DeepMind. The 2017 accounts of that business show that Google DeepMind staff costs are in excess of £200 million a year. So it does not seem that £160 million will go very far in that challenging environment.

In order that your Lordships’ House and others who will have to do so can assess what this money will be used for and whether that is a justifiable use with any significant result, can the Minister explain—either today or in writing—what series of new programmes this money will be deployed to develop? What are these new threats to our submarines that need to be tackled and are not already accounted for in the MoD budget?

[Earl Howe]

My Lords, the defence transformation fund means that £160 million will be available next year from within the MoD’s existing budget, and we are looking to make a further £340 million available as part of the spending review. That will be part of our bid. The transformation fund has been established, in general terms, so that we can respond rapidly to new opportunities to invest in technologies that are game changing, and projects that move us forward at pace in areas that represent priorities. It will complement the innovation fund, as I have explained, although that fund will in itself more than double next year. It is too soon for me to itemise the projects and technologies that this money will be spent on. This is work in progress, but we are clear that the fund will perform a very useful function in enabling all the commands to focus their minds on priorities and potentially game-changing areas of activity. As further information becomes available, no doubt noble Lords can ask me about that and I shall be happy to provide further details in due course.

Defence: Helicopters

Debate between Lord Browne of Ladyton and Earl Howe

Thursday 14th June 2018 Lords Chamber

[Earl Howe]

The noble Baroness raises some very important points and I understand the emphasis that she attaches to this aspect of UK industry. Our approach to rotary capability will be considered as part of the modernising defence programme, as she mentioned. It is worth remembering that we already have a long-term close relationship with Leonardo helicopters, which represents the design and manufacturing capability in the south-west, through our strategic partnership arrangement—a 10-year arrangement from 2016. That arrangement is unique and it enables us to maintain a continuing dialogue with the company to ensure that we are speaking the same language on capabilities, needs and requirements.

[Lord Browne of Ladyton (Lab)]

My Lords, another NATO summit is imminent. This brings to mind the frustrations of 15 years of shortfalls in NATO’s helicopter capability, which was much-needed in Afghanistan. Despite the fact that most of our European allies had helicopters available—at one stage I counted over 1,000—we could not get 17 into Afghanistan. Our stand-alone capability reminds me of the relevance of this Question. We have an opportunity with the MDP for the noble Earl and the MoD to sit down with Leonardo, Boeing, Airbus and other providers of our helicopter capability. Will the noble Earl refresh his memory of the 2005 defence industrial strategy, which is still the last strategy any UK Government have had and is still relevant? He may want to look at page 90 in particular.

[Earl Howe]

My Lords, I shall do exactly that. I am grateful to the noble Lord for his suggestion. We are on track to share headline conclusions from the modernising defence programme by the NATO summit in July. At that stage we expect to describe what the changed strategic context means for defence policy and planning, including the area in which the noble Lord is interested; how our overall approach needs to evolve, as surely it must; and how we intend to pursue improved capability in the new domains of warfare.