Vol. 738 Monday No. 30 9 July 2012

PARLIAMENTARY DEBATES (HANSARD) HOUSE OF LORDS OFFICIAL REPORT

ORDER OF BUSINESS

Death of a Member: Lord Marshall of Knightsbridge Announcement Questions Environment: Leafleting Passports Eurozone EU: Interpretation and Translation in Criminal Proceedings Designation of Features (Appeals) (England) Regulations 2012 Public Bodies (Abolition of Environment Protection Advisory Committees) Order 2012 Public Bodies (Abolition of Regional and Local Fisheries Advisory Committees) Order 2012 Public Bodies (Abolition of the Commission for Rural Communities) Order 2012 Motions to Refer to Grand Committee Legislative Reform (Annual Review of Local Authorities) Order 2012 Motion to Refer to Grand Committee Justice and Security Bill [HL] Committee (1st Day) Arts and Culture Question for Short Debate Justice and Security Bill [HL] Committee (1st Day) (Continued)

Grand Committee Civil Aviation Bill Committee (4th Day)

Written Statements Written Answers For column numbers see back page

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for neighbourhood arts and community events, and House of Lords that the need to obtain a licence is simply too costly Monday, 9 July 2012. for many venues and small organisations, as well as being ludicrous red tape? 2.30 pm Lord Taylor of Holbeach: I cannot agree with the Prayers—read by the Lord Bishop of Chester. noble Earl. This is up to local communities to decide. They can determine the balance between propagandising Death of a Member: Lord Marshall of events and social activities and their own interest in Knightsbridge trying to prevent litter and, to some extent, being bothered by people handing out leaflets. Announcement Lord Clark of Windermere: My Lords, has the 2.36 pm Minister seen the increase of small posters advertising The Lord Speaker (Baroness D’Souza): My Lords, functions dotting our roadside, which many of us I regret to inform the House of the death of the noble regard as litter, and has he had any consultations with Lord, Lord Marshall of Knightsbridge, on 5 July. On the police as to the road safety aspects of these many behalf of the House, I extend our condolences to the small posters? noble Lord’s family and friends. Lord Taylor of Holbeach: No, I have not but fly-posting Environment: Leafleting is a problem dealt with by the Localism Act that we passed last year. The noble Lord makes an interesting Question point, but election posters spring to mind as being the 2.37 pm most obvious things that one sees on lamp posts. Asked By Lord Clement-Jones Lord Naseby: My Lords, while I imagine the House To ask Her Majesty’s Government whether they has sympathy with my noble friend’s overall answer, will review the impact of restrictions on leafleting nevertheless, the last review was 2009. Since then a under the Clean Neighbourhoods and Environment great deal has happened locally on the ground, and in Act 2005 on cultural and community events. some parts of the country there are substantial restrictions. Maybe the time is coming for another review. The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord Taylor Lord Taylor of Holbeach: I think my noble friend of Holbeach): My Lords, the Environmental Protection has to come to terms with the localism issue. In the Act 1990 was amended in 2005 to enable local authorities end this is up to local authorities to determine. I to control litter from free literature. If a litter problem believe in localism and local decision-making. Local exists, authorities may introduce controls in designated communities elect their local authorities to take care areas to make it an offence to distribute material of such matters. It is not for central government or without consent. Exemptions exist for political, charitable Parliament to determine. or religious purposes. Defra has no plans to amend Lord Foulkes of Cumnock: It might be stretching it this legislation. Authorities should work with the just a little to call it a cultural and community event, community and local businesses to minimise litter but there was a very important event in south-west problems before imposing restrictions. London yesterday and I know that all the litter has been cleared up since then. I wondered whether it Lord Clement-Jones: My Lords, over a third of would be appropriate for the Minister to take this councils now restrict leafleting and some charge exorbitant opportunity to congratulate Andy Murray on a amounts for a licence. The Minister will be aware that tremendous effort—an effort of which everyone in the many local theatres and clubs have been very badly United Kingdom, not just Scotland, should be really affected by these restrictions, with dramatic reductions proud—and to wish him one better next time round. in their audiences. Should this traditional civic freedom not be protected? Will the Government consider Lord Taylor of Blackburn: I am delighted to be able introducing a new exemption for cultural and creative to join in the noble Lord’s congratulations to Andy activities, and not treat these leaflets as no more Murray.I was in the air during this particular tournament important than a crisp packet or burger wrapper? on the way back from a ministerial conference— Lord Taylor of Holbeach: I understand the noble Noble Lords: Oh! Lord’s interest in seeking to preserve community arts and activities but I emphasise that this is a discretionary Lord Taylor of Holbeach: So I am afraid I missed power that I would expect local authorities to apply in all the excitement and only shared the disappointment any way they wish, even within a particular zone. that the whole House felt at the result. Local authorities can give their consent to any group or any event at any time. Lord Swinfen: My Lords, can my noble friend give any indication of the costs to local authorities of The Earl of Clancarty: My Lords, will the Minister clearing up litter? accept that even in this age of social networking, as the evidence suggests, there is no substitute for person- Lord Taylor of Holbeach: Yes, I can give a clue in to-person contact with the public that leafleting affords that street cleaning in the years 2010-11 cost £863 million. 903 Environment: Leafleting[LORDS] Eurozone 904

Lord Brooke of Sutton Mandeville: My Lords, is my weekend speculation about the Prime Minister’s views noble friend aware of the irony towards which he is on student visas. Can the Minister give us any insight leading us whereby local authorities will be castigated into how thinking is developing in this area? as being philistine because they intervene on cultural leaflets when recent archaeology demonstrates that Lord Henley: My Lords, I fail to see what that has the philistines were actually very civilised people? to do with the Question on the Order Paper, which, as the noble Baroness the Leader of the Opposition will Lord Taylor of Holbeach: I am sure that they were, know, is about passport personal interview offices. I and far be it from me to suggest that any behaviour by recommend that she does not believe everything that a local authority is philistine. she reads in the press. Lord Skelmersdale: My Lords, can the Minister Lord Storey: The Minister will be aware that when give us any update on dissolvable chewing gum, which you apply for a passport you have to have it countersigned I gather has been invented, as chewing gum is the most by “a professional”. In my 30 years as a head, I have horrendous litter problem on our streets? probably done 100 of these. No one has ever checked whether I am the person I am supposed to be. Can the Lord Taylor of Holbeach: I am pleased to say to my Minister tell us how many people who countersign noble friend that I am having a meeting with Wrigley those passports are checked up on? this afternoon. If I had had it last week, I could give my noble friend an answer to his question—none the Lord Henley: I cannot give my noble friend a precise less, I hope that he is reassured that this matter is answer, but I will certainly make sure that the appropriate under control and I will stick to the solution. checks are made on him before he signs any future applications to ensure that he is the noble Lord he Passports purports to be. Question Lord Roberts of Conwy: My Lords, I return to the Question. What has been the cost of these 1.5 million 2.44 pm interviews? Is it true that it has been in the nature of a Asked By Lord Roberts of Llandudno third of £1 billion? Is it not time that we looked at this situation? To ask Her Majesty’s Government what are their intentions regarding the future of passport personal Lord Henley: My Lords, there is a cost. That is why interview offices. we made changes to the number of interview offices. As a result of that restructuring, we are achieving a The Minister of State, Home Office (Lord Henley): saving of some £7.81 million a year. As I said in My Lords, the interview forms part of the identity answer to the original Question, they are a very important authentication process for first-time adult passport part of the authentication process. applicants and provides a deterrent against fraud. There are no current plans to alter the existing network Lord Reid of Cardowan: In view of some of the of passport personal interview offices. comments that have been made, can the Minister confirm that one of the fastest-growing crimes in this Lord Roberts of Llandudno: I thank the Minister for country is based on identity theft and that, in the his response. Does he agree that, when we have had midst of identity theft, one of the largest areas is the 1.5 million interviews in the past five or six years and theft of people’s passports as an entry to identity, only 12 rejections, there is something wrong with this which then leads to further crimes, running from legislation? Does he also agree that it might be an intervention in personal details through to bank accounts opportunity for those involved with personal passport and right up to terrorism? While we are reminding interviews and the UK Border Agency to talk together, ourselves of the costs of this, let us remind ourselves and that some of the personnel and resources in the of its benefits as well. personal passport interview process could be deployed to strengthen the work of the UK Border Agency? Lord Henley: The noble Lord makes a very valid point, and I suspect that he was Home Secretary at the Lord Henley: My Lords, I cannot confirm the precise time these changes were made in 2006. We support figure that the noble Lord cites, but I can confirm that those changes, we stick by them and we have no plans there are something of the order of a quarter of a to make any further changes. million interviews a year. The noble Lord is right to say that very few are declined, but it is interesting to Eurozone find that possibly about 1,000 people a year decide not Question to come to an interview when asked to do so. That might imply that their application was not quite as 2.48 pm straightforward as it might have been. We think that Asked By Lord Dykes these interviews are an important part of the authentication process, as did the previous Government, To ask Her Majesty’s Government when they who brought this process in in 2006. As I said, we have next intend to discuss the plans for a full fiscal, no plans to change matters. monetary and banking union for the eurozone at forthcoming meetings of the European Union Baroness Royall of Blaisdon: My Lords, I am sure Economic and Financial Affairs Council and the that all noble Lords will have read in the press over the General Affairs Council. 905 Eurozone[9 JULY 2012] Eurozone 906

The Commercial Secretary to the Treasury (Lord Lord Davies of Oldham: My Lords, does the LIBOR Sassoon): My Lords, the June European Council discussed scandal and other financial scandals strengthen or a report by the four presidents on strengthening economic weaken Her Majesty’s Government’s plans for exceptional and monetary union. They will conduct further work treatment in Brussels? Do we not have a common and report back to the European Council in December interest in a properly regulated single market? Would with an interim report in October. There is likely to be not Her Majesty’s Government, particularly the Prime discussion on aspects of these issues in a number of Minister, be better involved in discussing these matters different fora before and after the December report. rather than sulking on the sidelines?

Lord Dykes: I thank the Minister for that Answer. I Lord Sassoon: My Lords, the UK is very much congratulate Her Majesty’s Government on their strong involved in the discussions in Brussels. That is why, as official support for the eurozone summit agreement I have already said, we secured important parts of the success, in stark contrast to the negative carping of EU patent court coming to London. That is why we some Tory MPs and MEPs and of a few voices in the recently secured a new British head for the European Christian Social Union in Bavaria. Bank for Reconstruction and Development. We are at the table and that is where we intend to stay. Lord Sassoon: I am grateful to my noble friend for confirming the success of the recent European Council, Lord Pearson of Rannoch: My Lords, with the leave a Council which confirmed among other things that of the House and as there are some minutes on the the single market had to be considered in the context clock, instead of going along with this madcap, dangerous of fiscal union, which brought important parts of the scheme of European financial integration, why do the new EU patent court to London, and which considered Government not encourage the eurozone countries to a raft of other growth-related matters. abandon the incurable euro and go back to their own currencies, each with their own interest rate and exchange Lord Bilimoria: My Lords, will the Minister confirm rate? Would that not be less painful and expensive that the Government keep pushing the eurozone countries than to go on trying to save the wretched thing? to go in for more fiscal and monetary union and yet do not seem to accept that that cannot take place Lord Sassoon: My Lords, as we have discussed unless there is a sovereign union in the way that there many times, 40% of our exports go to the eurozone. It is in the United States of America or a country such as is our most important trading bloc. The priority has India? Why do the Government not accept that, and to be to strengthen the eurozone countries. That is why do they keep encouraging the eurozone countries what they want do and that is what we want to see to pursue more and more fiscal and monetary integration? them do and we must help them to achieve that.

Lord Sassoon: My Lords, I am pleased to say that Lord Harrison: The United Kingdom often blames no encouragement is now needed from the UK. The the eurozone for the problems with the economy as it paper by the four presidents—the presidents of is being run by Her Majesty’s Government here. Why the European Council, the European Commission, do we not do more to help? Does the noble Lord, Lord the European Central Bank and the Eurogroup—set Sassoon, agree with Mr David Lidington, who stated out what they believed to be appropriate in relation to in replying to the Select Committee’s interrogation last fiscal and monetary union. That work will continue week that he welcomed more Europe if it meant the and the UK is participating in the discussions in and implementation of the full ambit of the single European around those reports. We are being fully supportive of market? those efforts. Lord Sassoon: On the question asked by the noble Lord Pearson of Rannoch: My Lords, would it not Lord, Lord Harrison, about the cause of the weaker be wise to ask the people of Germany and the other growth in this country, the Office for Budget Responsibility eurozone donor nations whether they agree to be and other commentators have identified the eurozone burdened with the debts of Greece, Portugal, Spain, as a major source of threat to our growth and of Italy and others, which even the Germans and the weakness. Significant parts of the eurozone are plainly other countries cannot afford for long? now in recession. I agree with my right honourable Lord Sassoon: My Lords, I thought I might have friend David Lidington about the need for more Europe been asked a question about a UK referendum, instead in many areas including, particularly, more completion of which I get a question about whether the German of the single market. That is why it is important that people will be consulted. I think I will leave that to the four-presidency proposal referred to in the Council German politicians to answer. conclusions at the end of June will include, “concrete proposals on preserving the … integrity of the Single Lord Flight: My Lords, does the Minister agree that Market”. a crucial ingredient in a successful fiscal and monetary That is critical, as are the many growth initiatives union is transfer payments between the more prosperous included in those conclusions. to the less prosperous, as occurs within the US and even within the UK? Lord Lawson of Blaby: My Lords, we all wish to see a successful European economy, but is my noble friend Lord Sassoon: Indeed, that is part of the remorseless not aware that the so-called success of the European logic of what an economic and fiscal union normally Council a fortnight ago has already disappeared, the brings with it. financial markets have put the interest rate on Spanish 907 Eurozone[LORDS] EU: Criminal Proceedings 908

[LORD LAWSON OF BLABY] Baroness Coussins: My Lords, I beg leave to ask the sovereign debt back to where it was before, nothing Question standing in my name on the Order Paper. In was achieved, nothing can be achieved in this way and doing so, I declare an interest as vice-president of the the sooner that it is realised that this project, however Chartered Institute of Linguists. well intentioned, is a terrible mistake, the better? The Minister of State, Ministry of Justice (Lord Lord Sassoon: I certainly agree with my noble friend McNally): My Lords, the Government will take the that we delude ourselves if we think that words coming steps necessary to ensure that the UK is compliant out of one meeting of European leaders are going to with the EU directive in good time for its implementation solve all the problems. Part of the problem seems to date. have been a belief that the crisis can somehow be dealt with by fine words. I believe that in the underlying Baroness Coussins: My Lords, I understand that the work— whether on the two pack, the six pack, or the company that the Government have, under the framework intergovernmental treaty—there is the beginning of a agreement, contracted to provide services to courts construct of great significance to underpin the eurozone. and the police is supplying performance data to the Government which suggest that it is doing a good job. Lord Hunt of Kings Heath: My Lords, would the However, these figures come without any independent Minister be prepared to share with us his prepared verification or audit and tell a very different story text on whether there should be an in/out referendum from the complaints we hear daily from judges and on our membership of the EU? If the Government are others about the failure to supply interpreters, or the holding out the prospect of a referendum in relation sending of unqualified people with no experience of to Europe, can he tell me why the Government refuse simultaneous interpreting and some people who were to have a referendum on the future of your Lordships’ simply incompetent—in one case not understanding House? the difference between murder and manslaughter. Does the Minister agree that the UK is at risk of expensive Lord Sassoon: I realise that I walked straight into legal action over non-compliance with the directive, this one. Now is not the time for an in/out referendum particularly Article 5 about the quality of the service, on Europe. Once Europe has settled all the matters and that we should therefore review the framework that we have talked about, we can look at our relationship agreement now? with Europe in the round. As for referenda on other matters, the legislation is starting in another place Lord McNally: No, my Lords, I do not think we are today and, no doubt, it will get here in due course. in danger of non-compliance. As I said in my Answer and, as the noble Baroness indicated, there are some Lord Teverson: Given that the eurozone is very months to go before the directive comes into play. In likely to survive in a position very similar to its position the mean time, the Ministry of Justice has a massive at the minute and that it will probably move forward interest in making sure that Applied Language Solutions to a banking union and closer economic and fiscal provides the quality and service for which it is contracted. union, what strategic preparations are the Government We are making every effort to make sure that that happens. making in the longer term to make sure that Britain is not marginalised once we get through the existing Baroness Butler-Sloss: Is the Minister aware of the crisis, however long it takes? extent of disruption and delay to criminal trials as a result of the serious inadequacies in court interpreting? Lord Sassoon: My Lords, I think the most important Not only does it lead to considerable cost but concerns thing is that we continue to be, as we are, constructively have been raised by judges across the country, particularly at the heart of all the discussions on these matters. As in London, Birmingham and Leeds. I have already said, there have been some significant achievements, as evidenced in the conclusions of the Lord McNally: My Lords, there have been individual June Council, and that is the basis on which we have to complaints about performance and there was undoubtedly continue our discussions. I would not think about it in a very poor start to this contract. However, there have the contingency planning terms that my noble friend been improvements and we are talking about a system portrays. We are there at the heart of the discussions with some 800 requests a day for such interpretation. and are continuing to focus our partners on growth In the first quarter of its operation there were 26,000 and the completion of the single market. requests in 142 languages. One has to get complaints and performance into perspective, although there is no doubt that a lot was left to be desired in the EU: Interpretation and Translation in performance of the contract in its early stages. Criminal Proceedings Question Lord Harrison: Has the Minister revised the original estimate of a £12 million saving as a result of implementing 2.58 pm the framework agreement because of all these additional Asked By Baroness Coussins costs? Have we not arrived at a situation that is no longer just succumbing to teething problems but is To ask Her Majesty’s Government whether they wholly poorly structured in the first place? expect to be in compliance with European Council directive 2010/64/EU, on the right to interpretation Lord McNally: I do not agree with that. As I said, and translation in criminal proceedings, by the agreed there were problems at the beginning of this contract implementation date of 27 October 2013. but the performance has improved dramatically. I 909 EU: Criminal Proceedings[9 JULY 2012] Justice and Security Bill [HL] 910 presume that the original estimate of a £12 million in the past 12 months. Indeed, one reason for bringing saving in this first year will probably not be achieved. in a single supplier on a new contract with very precise That is common sense but this is not a solution for just contractual obligations was to try to remove that. I this year. It is a long-term solution that we hope will, repeat that providing around 100,000 interpreters in once it is bedded down, give the service and quality 142 different languages is something of which our required. justice system should be rather proud. However, once you operate on that scale across that range of expertise, Baroness Sharples: Can my noble friend say how there will be mistakes, hiccups, wrong directions and many languages each interpreter is expected to speak? wrong turn-ups. On the whole, we expect the contract Lord McNally: No. However, there are a number of to produce at least 98% performance success, and we interpreters who speak more than one language. At intend to keep the contractor to that. the moment, there are about 1,500 interpreters under contract and they are equivalent to about 3,000 interpreter Designation of Features (Appeals) persons, which means that many of them speak two or (England) Regulations 2012 more languages. Baroness Scotland of Asthal: My Lords, will the Public Bodies (Abolition of Environment noble Lord tell the House whether the nature, number Protection Advisory Committees) and extent of complaints from the courts has gone up Order 2012 or down since the change was implemented? If it has, as we believe, gone up, what do the Government intend to do about it? Public Bodies (Abolition of Regional and Local Fisheries Advisory Committees) Lord McNally: Has it gone up since the scheme was implemented? Yes, it has, because the scheme implements Order 2012 a single supplier that will pay interpreters less than they were being paid on an ad hoc basis. That combination Public Bodies (Abolition of the of greater discipline in where and when interpreters Commission for Rural Communities) are hired and at what fee is not likely to be welcome to the interpreting community. That I understand. But it Order 2012 was the previous Administration who initiated an Motions to Refer to Grand Committee inquiry into the efficiency and effectiveness of the old 3.08 pm interpreter system. We have readily acknowledged that this new system has had teething problems, but there is Moved By Lord Taylor of Holbeach no ministerial interest or MoJ interest in having questions That the draft regulations and orders be referred such as this time and again about performance. The to a Grand Committee. supplier has contracted to a high-quality performance, and we intend to keep it to that. Motions agreed. Lord Anderson of Swansea: How is the performance of that supplier adequately monitored? Is there an Legislative Reform (Annual Review of independent monitoring system? Local Authorities) Order 2012 Motion to Refer to Grand Committee Lord McNally: There is not an independent monitoring system—there is a client. We are the client, and we do 3.08 pm not intend to pay good money for a shoddy service. As Moved By Baroness Garden of Frognal I have just said, as the client we brought this in because we intended to try to make substantial savings That the draft order be referred to a Grand for the taxpayer on a system that we believed was Committee. slipshod and expensive in its running. When the new Motion agreed. system gets bedded down, we hope that it will give high quality. The monitoring is done by the department concerned, the MoJ, and we intend to carry out our Justice and Security Bill [HL] responsibilities to make sure that the taxpayer gets Committee (1st Day) value for money. 3.09 pm Baroness Thomas of Winchester: My Lords, I Relevant documents: 3rd and 4th Reports from the understand my noble friend’s difficulties, about which Constitution Committee, 5th Report from the Delegated he has been telling the House, with so many languages Powers Committee. having to be covered. Will he tell us how many cases have had to be rescheduled because the right interpreters Clause1:TheIntelligence and Security Committee were not there, and whether that is being monitored by his department? Amendment 1 Lord McNally: There has always been the problem Moved by Lord Butler of Brockwell of interpreters not being there, or the wrong interpreters 1: Clause 1, page 1, line 5, after “Committee” insert “of being there. This is not something that has happened Parliament” 911 Justice and Security Bill [HL][LORDS] Justice and Security Bill [HL] 912

Lord Butler of Brockwell: My Lords, I will speak I do so because I am also a member of the Intelligence also to Amendment 2. These two amendments are in and Security Committee. I was first appointed to the my name and that of my noble colleague on the committee in 2006 and therefore have some years of Intelligence and Security and Security Committee, experience of it. the noble Marquess, Lord Lothian, as well as those of In looking at the first amendment I feel very strongly the noble Baroness, Lady Smith of Basildon, and the that we need to make it clear that this is more than just noble Lord, Lord Beecham. I can introduce the a committee. The problem that we have faced in terms amendments quite briefly, and I hope that we are of credibility until now, as the noble Lord said, is that pushing at an open door. It is, I think, common we were a committee created by statute but appointed ground with the Government that the Intelligence and by the Prime Minister and reporting to the Prime Security Committee will serve Parliament and the Minister—who could report to Parliament in due public better if it is made clear that it is indeed a course. Although we exercised what we thought was committee of Parliament and not a creature of the the maximum independence possible, the public Government. Since its creation in 1994 the committee perception was that we were actually a creation of, and has played an independent part, but because the committee therefore a tool of, the Executive. In that regard, less is appointed by the Government, it has often been confidence was put in the reports that we produced. difficult to convince outside observers of its independence. My belief has been that if this committee is to work I again pay tribute to the committee, as I did in my properly—which is what I believe the Bill is about Second Reading speech to earlier members of the now—we need to make it clear that this is not just a committee. It is now common ground that it has committee hanging in the ether but a committee of behaved in such a way that it has come of age and its Parliament: it is composed of parliamentarians, exercises independence and duty to Parliament can be made its oversight of the intelligence agencies on behalf of clear by adding the words that it is indeed a committee Parliament and reports to Parliament, although the of Parliament. I hope that that is agreed with the Prime Minister will ultimately have a veto over Government. appointments and also have access to the reports that Amendment 2 would have the effect that the Intelligence we produce. I believe that the simple addition of the and Security Committee would enjoy the same rights words “of Parliament” will make it clear that what I and privileges as a departmental Select Committee in am looking for can be achieved. respect of having parliamentary privilege. Perhaps I I have been told in the past that there may be may just explain that. Because the Intelligence and difficulties about the words “Committee of Parliament”. Security Committee is created by statute and is not a I am a simple Scottish lawyer, and I have worked very Select Committee of Parliament, it does not automatically hard to understand what these possible difficulties can receive the same rights and privileges as, for example, be given that, as I said at Second Reading, a committee a departmental Select Committee. That is the purpose of Parliament is what we are effectively becoming. I of writing in the Bill that it should have parliamentary hope, therefore, that the Government will accept that, privilege. This issue is important, because the committee’s because I think that the committee’s credibility in work has to be conducted in confidence and those exercising parliamentary oversight of the intelligence who give evidence to it, including not only the intelligence agencies is an important part of our developing agencies but also others, must have confidence that the constitution. security of their evidence will be protected. This is I turn briefly to the second amendment spoken necessary not only for future evidence but for past to by the noble Lord, Lord Butler of Brockwell. I have evidence, because in this litigious age there needs to be very little to add to what he said other than this. He assurance that evidence previously given cannot be talked about the need for those who give evidence sought to be disclosed as evidence in any proceedings. to the Committee to be able to do so in the To make that clear, this amendment proposes that knowledge that their evidence will not suddenly be privilege should apply to the proceedings of the made public. That is a very important part of the way Intelligence and Security Committee as it does to in which the Intelligence and Security Committee Select Committees of Parliament. works. It is particularly important in one respect. When the intelligence agencies give evidence to us Lord Campbell-Savours: Is there a precedent for they will naturally take account of how secure their this form of committee anywhere within the constitution? evidence will be. If they feel that that evidence is not secure then they quite simply will not give us that evidence. We rely on their confidence in us to ensure Lord Butler of Brockwell: There are indeed committees that they give us the maximum amount of information that are set up by statute. I can give the noble Lord upon which we can exercise our oversight. Unless we three examples: the Ecclesiastical Committee of have the protection which is the purpose of the second Parliament, the Public Accounts Commission and the amendment I believe that that confidence will not be Speaker’s Committee on the Electoral Commission. there. I hope, therefore, that the Government will Those are all similar committees which have been set accept both amendments. up by statute but are not Select Committees. Lord Campbell-Savours: My Lords, I have reservations 3.15 pm which I will deal with when I speak to my amendment The Marquess of Lothian: My Lords, I rise briefly arguing the case for a Select Committee to take on in support of the noble Lord, Lord Butler of Brockwell, these responsibilities. Parliament is being required to on both amendments, to which my name is also attached. approve wording which suggests that this committee is 913 Justice and Security Bill [HL][9 JULY 2012] Justice and Security Bill [HL] 914 controlled by Parliament, but without recognising what an original proposer of an intelligence and security the Justice and Security Green Paper of October 2011 committee, and he was interrupted by an old colleague, says at paragraph 3.19. It states: Ray Whitney—a distinguished former member of the “However, under such arrangements”— foreign service, and a Member of Parliament at the time— that is, the arrangements of a Select Committee— who said that whatever one says about the Senate “the Government would clearly have no veto on publication of intelligence committee, there is general agreement that sensitive material”. it has destroyed the American intelligence capability. I repeat: That was an exaggeration of the sort of strong feeling “no veto on publication of sensitive material”. common at the time. Having had the privilege of In other words, the provision is being introduced as a serving under the noble Baroness, Lady Thatcher, who way for the Government to secure control outside of was not the first outspoken advocate of this particular Parliament, through this half-measure of a committee, approach, I can attest that there was a lot of resistance over the publication of sensitive material. My view is to it. very simple. If they want to do that, let it be done When our committee started out it was very important through a full Select Committee structure. That is the to establish its credibility. I felt at that time—and substance of my amendment which will come later. members of the committee shared this view; I think that the noble Lord, Lord Campbell-Savours, was a Lord King of Bridgwater: My Lords, if I may intervene keen advocate of it—that it was more important to in this discussion, I seek to bring to it the “veneer of establish the trust of the agencies, to make sure that experience”—to quote the Deputy Prime Minister, as they were forthcoming with information, because they the noble Baroness on the Front Bench did on Second could switch us off at any time. After all, we were into Reading—that this House can contribute on these the “don’t-know don’t knows”, so establishing that matters. I am delighted to follow the noble Lord, Lord trust was important. I believe that that trust, confidence Campbell-Savours, who is an excellent member of the and relationship have been established now—more committee that I had the privilege to chair for a than established, I hope, given the passage of time. I number of years. In listening to this debate I am am therefore very torn between these amendments, absolutely sure that we have reached the time to move Amendment 1 or 2, which propose setting up a Committee forwards. However, I am torn between Amendment 1, of Parliament, or whether there is not an argument for the significance of which I have to admit I do not fully going straight to a Select Committee. I have learnt understand, and Amendment 3, which proposes moving something today from the noble Lord, Lord Butler. to Select Committee status. Early in our committee’s After spending a brief period of 30 years in the House discussions we considered the role of a Select Committee, of Commons, I had not understood that the PAC was and—if I can stop the noble Lord mucking up my set up under a different arrangement. One learns papers—I shall find a quote from a report that our something every day. It sounds attractive for the IC to committee produced in 1998 or 1999. We said: be on the same wavelength. “There are arguments for and against such a status, and we have not as yet formed a view on the issue … Even if thought Lord Butler of Brockwell: It is confusing but what is desirable, however, such changes would take time to introduce, set up under statute is the Public Accounts Commission, and could alter significantly the structure of relationships between not the Public Accounts Committee. the Committee and the intelligence community”. I think that, as time has moved on, we have established Lord King of Bridgwater: I have now unlearnt that sort of relationship. something which I thought I had learnt, and I am It is important to remember where we have come grateful to the noble Lord for his intervention. I from. Although the noble Baroness, Lady Manningham- certainly think that when we come to Amendment 3 Buller, rightly points out that the agencies were resistant there are strong arguments for moving in that direction, to the establishment of a committee—that certainly provided that the arrangements can be established to matches my own impression, and she knows the situation ensure security of intelligence. I think that the noble much better than I do—many serving in the agencies Lord, Lord Campbell-Savours, was with us when we wanted not only an Intelligence and Security Committee went to Washington. One is struck by the number of but, in their own interest, for that committee to be as Senate committees there. The Senate Select Committee thorough and active as possible so that it could carry on Intelligence is held in a totally secure room, and credibility. As one of the big problems facing the there are badges for all 19 government agencies that agencies was false allegation and rumour, an independent the committee oversees as part of its various and credible body would be seen to address and deal responsibilities. It is a completely different facility. If, effectively with those issues—in secrecy if necessary, as I understand it, the proposal is that the facilities will and without disclosure of operational information or now be provided by Parliament, as opposed to the other evidence, some of which might come from other separate facilities that existed in the Cabinet Office, it countries. will be necessary to think about what sort of facilities My feeling at that time was that it was critical that will match up to the requirement for total security and we should establish credibility, because although many the proper safeguarding of intelligence. of the agencies were in favour of the committee, others were nervous about whether parliamentarians Baroness Smith of Basildon: My Lords, one thing could be trusted, whether information would be secure that the debate has shown so far—and this will also or whether it would be leaked—all the problems that apply to the debate on the next amendment—is that one might advance. There was a lot of hostility. I recall the Government have not yet done enough to satisfy that, way back in the early 1980s, Jonathan Aitken was your Lordships that the arrangements for independence 915 Justice and Security Bill [HL][LORDS] Justice and Security Bill [HL] 916

[BARONESS SMITH OF BASILDON] I pay tribute to the work of the present ISC in for the committee are adequate. This debate has been highlighting the need for reform in the area, and I fully interesting. I think I understood the noble Lord, Lord support the two sensible proposals that were proposed King of Bridgwater, correctly when he said that he on the committee’s behalf by the noble Lord, Lord was quoting me quoting the Deputy Prime Minister Butler of Brockwell, and by the noble Marquess, Lord on the “veneer of expertise”. I in no way associate Lothian. We added our name for two reasons: first, to myself with that comment, nor with the one that I am show support for the direction those amendments are told the Liberal Democrat spokesperson from the moving in; and, secondly, to indicate the broad nature House of Lords made on TV today—that we are a of support across the House. House full of dead-beats and has-beens. I think that The first of those amendments relates to the ISC’s this debate will prove how wrong both those comments are. status as a parliamentary body. Because of the nature The arrest just last week of alleged Olympic terror of the information that is dealt with by the ISC, we plot suspects was a clear reminder of the vital and recognise that it cannot be subject to the same largely hidden work that the intelligence and security arrangements as other parliamentary committees are. services undertake. Part of the discussion that we are There does at times have to be a process of negotiation having now is based on the fact that the strength and between the Government and the committee that does health of our democracy in the UK depends on a very not jeopardise the vital work of the security services. fine balance between the Government, who are We also, however, fully support changes aimed at empowered to protect our national security, and the formally establishing the committee as a parliamentary strength, credibility and authority of the institutions body that is subject to safeguards and at making clear that have oversight of that power. its separation from the Executive, as is consistent with I suspect that during the course of Committee the our concept of parliamentary sovereignty. majority of debate will understandably be reserved Amendment 1 would change the ISC’s line of for the changes proposed to the judicial element of accountability, sending an important signal that the that oversight. However—and I make this point very committee is a creature of Parliament and not of the strongly—our system of democracy is, unlike that of Executive. Amendment 2 would underpin the assertion the USA, based on the concept of parliamentary by formally designating the ISC as having parliamentary sovereignty.That means that Parliament, as representative privilege under Article 9 of the Bill of Rights. I have of the public, is the ultimate check over other government one question for the movers of the amendment. I institutions—not the Prime Minister or the Government. understand that that article would also allow the A powerful security service demands equally powerful committee independence from the Official Secrets Act, and independent parliamentary oversight, and the but it is my understanding that all members of the Intelligence and Security Committee is a very important committee sign the Official Secrets Act and I am not plank in this oversight mechanism. However, it is sure why the committee would want that, unless it is widely recognised that, while the committee has in one of the other measures that are in Article 9. It some ways developed its remit in response to the might be helpful to have further explanation on that. changing nature of government intelligence and These amendments move in the right direction to counterterrorism activities, the law has not kept pace establish the independent parliamentary authority and with that change. scrutiny that, as we can see from the debate so far and The committee was set up in 1994. We saw in its the work of the ISC, is clearly required. 2009-10 annual report that the committee itself recognised that reform was necessary to maintain public confidence in its oversight function. It asserted that corporate The Minister of State, Home Office (Lord Henley): knowledge of the committee’s procedure within My Lords, I think that the final point made by the government had been lost over time and that in some noble Baroness, Lady Smith, on the Bill of Rights is cases this had led—this is a serious point—to posed to the movers of the amendment, and I will misunderstandings about the statutory independence leave them to respond to it when the noble Lord, Lord of the committee and its work and about the nature of Butler, winds up the debate. the relationship between the committee and the Prime My noble friend Lord King said that he had been Minister. The committee has suggested a number of described as having a veneer of experience in these reforms which I think we will hear more about and matters. All four speakers before the noble Baroness discuss today. and me had far more than a veneer of experience in these matters. All four have served on this Committee 3.30 pm or have been chairman, like my noble friend, and we We welcome for the most part the changes made in are very grateful that they bring their expertise to this Part 1 of the Bill, which formalises the committee’s because it is a matter that requires a great deal of remit over the wide intelligence community and provides discussion and consideration by us. it with greater parliamentary independence. However, I start by setting out what changes the Bill proposes if we compare those proposals in the Bill with the to make to the ISC’s status. The new ISC will be proposals which the ISC itself called for last year and appointed by Parliament and will report to Parliament the Government’s record more broadly in measures as well as to the Prime Minister. In parallel with the such as ditching the annual parliamentary view of Bill, the Government intend that the ISC will be control orders in the new TPIMs, we get the sense that funded by Parliament and accommodated on the the Government’s commitment to parliamentary oversight parliamentary estate, and that its staff will have the is perhaps only skin deep and could go further. status of parliamentary staff. 917 Justice and Security Bill [HL][9 JULY 2012] Justice and Security Bill [HL] 918

As both my noble friend Lord King and the noble The second amendment in the group deals with the Baroness, Lady Smith, have implied, the current ISC very significant issue of parliamentary privilege and has been criticised for being a creature of the Executive—I takes us back to the Bill of Rights. This is a matter think that was the word that the noble Baroness used. that the House has considered on a number of occasions The intention of this measure is that the ISC should in recent years. The Government’s most recent be brought much closer to Parliament. It will be a consideration of the issue came in the Green Paper committee of Parliament created by statute in the that was published in April this year. Noble Lords will same way as other bodies are, as listed by the noble be aware of the importance that privilege can play in Lord, Lord Butler, in response to the noble Lord, the functioning of this House and of another place. Lord Campbell-Savours. Parliamentary privilege includes such fundamental The noble Lord, Lord Butler, said there were three concepts as the freedom of speech of Members of this examples. The Speaker’s committee for IPSA, created House and of another place, and the prohibition on under Section 1 of the Parliamentary Standards Act 2009, courts questioning proceedings in Parliament. Both is another. Like those other statutory committees of Houses and their Select Committees benefit from that Parliament, the ISC will not have all the attributes of a privilege. Freedom of speech in the context of the Bill departmental Select Committee. The question of whether of Rights is just one aspect of parliamentary privilege. such a committee would be the appropriate route to go At present the Intelligence and Security Committee down is another matter. We will deal with it when we is a statutory committee of parliamentarians. However, debate Amendment 3, which the noble Lord will speak it does not at present benefit from that parliamentary to immediately after this group. privilege. The amendment would provide that the The two amendments that we are considering concern proceedings of the ISC would be proceedings in the status of the ISC. The first would change the name Parliament for the purposes of Article 9. That would of the Intelligence and Security Committee to the ensure that the committee’s proceedings were covered Intelligence and Security Committee of Parliament. by parliamentary privilege. The question posed by the Some noble Lords will be aware that my right honourable amendment is about the consequences of privilege friend the Lord Chancellor and Justice Secretary has attaching to the proceedings of the ISC, which would written to the chairman of the ISC, Sir Malcolm be that criminal or civil proceedings could not be Rifkind, stating that in principle the Government brought in respect of statements made by ISC members, support such a change, or one that would have a like or witnesses before the ISC, in the course of ISC effect of making clear in the Bill the parliamentary proceedings. character of the ISC. However, before we could accept Noble Lords may say that this makes very little the amendment that noble Lords proposed and which difference because the ISC members are all the Opposition support, we would need to be very parliamentarians and can benefit from privilege when clear that it would be the best means to achieve this participating in parliamentary proceedings. However, end and what all the implications of such a change it would be different for a witness, who at present would likely be, including the very tricky issue of would not benefit from privilege. Other consequences parliamentary privilege. Any change that has the possible would be that disciplinary proceedings against witnesses, impact of increasing the risk of unauthorised disclosure based on statements made in ISC proceedings, would of sensitive information should be very carefully thought be barred as such proceedings would constitute a through. contempt of Parliament. My noble friend Lord Lothian described himself as Noble Lords will understand from what I have said a simple Scottish lawyer. I always get rather worried when that there is a degree of sympathy for both amendments, noble friends describe themselves as simple, Scottish and particularly the first, but more work needs to be or a lawyer, and when all three come together I am done. I should be grateful if noble Lords accepted that even more alarmed. However, the amendment could and that it would probably be best at this stage to affect the ISC’s status for other purposes. For example, withdraw the amendments and to have further discussions, it could bring the ISC within the ambit of the Freedom particularly in the light of the fact that my right of Information Act 2000 by making it part of the honourable friend the Lord Chancellor has written to House of Commons and the House of Lords for the Sir Malcolm Rifkind about this and said that he is purposes of the Act. It may also change the ISC’s broadly content with the idea. However, as I have status under the Data Protection Act 1998, as Section 63A explained, we believe that more work is necessary. of the Act may become relevant, making the corporate With that, I hope the noble Lord will feel able to officers of the House of Commons and the House of withdraw his amendment. Lords the relevant data controllers for the ISC’s data- processing activities. I put it to my noble friend—the Lord Butler of Brockwell: My Lords, I am grateful simple Scottish lawyer—that those consequential effects to the Minister for that reply and to the other Members need to be examined in some detail. who have taken part in the debate. Two clear points It has been very helpful to debate the issues raised have come out of the debate that are agreed on all by the amendment. I hope I have gone some way to sides. First, the ISC should be able to fulfil its duties to explaining why I am not in a position at this stage to Parliament as strongly as possible. It should be clear say anything more. Certainly I can say that the ISC that it is a servant of Parliament and not of the chairman, Sir Malcolm Rifkind, has responded to my Executive. That was the purpose of the first amendment. right honourable friend’s letter, and that the Government We will debate in a moment the amendment tabled would welcome further discussion with the ISC on this by the noble Lord, Lord Campbell-Savours, proposing important issue. that the ISC becomes a Select Committee, but, as I 919 Justice and Security Bill [HL][LORDS] Justice and Security Bill [HL] 920

[LORD BUTLER OF BROCKWELL] has given today—that he was unable to give undertakings understand it, special safeguards are required for it, on privilege—I asked for my amendment to be taken both in relation to appointments and in the nature of separately. He will now understand why I had it moved its reports: namely, that things that are genuinely from the group containing Amendment 1. secret should not accidentally be released in its reports. I corresponded with and made direct representations I think I am right in saying—this will no doubt come to Prime Minister Blair and others in Downing Street out in our next debate—that there will need to be a over a number of years. I was supported in doing so by statute for that reason, so the statute will be necessary the overwhelming majority of Labour Members of anyway. It would be difficult to apply those restrictions the other House and members of other political parties, to a Select Committee of Parliament, but that will no with whom I had conversations in the late 1990s. doubt also come out in our next debate. There was overwhelming support for the principle of a The purpose of the clauses in the Bill and of the Select Committee. I do not believe that oversight is amendments is exactly the same as the purpose that fully credible while the committee remains a creature the noble Lord, Lord Campbell-Savours, is pursuing. I of the Executive or some halfway house that lacks am very strongly in favour of Parliament’s effective parliamentary privilege. Privilege is the central issue in control over the Executive. I have become more strongly this debate—this was raised in the debate on the in favour of that since I became a Member of Parliament previous amendment—and that is why I am driven rather than a member of the Executive. I believe in it down the Select Committee route. very strongly, and I believe that of all the parts of the The problem at the moment is that the committee Executive, the security agencies need to be effectively considers its relationship with the Prime Minister more controlled by people who are in a position to see and important to its operations than its relationship with be trusted with information about what they are doing. Parliament. The Government’s proposal seeks to address So I do not think there is any difference about the that but, in reality, it will make little difference to the ends. nature of the relationship. I strongly dissent from the The second thing is that witnesses to the ISC should view that this relationship with the Prime Minister is have confidence in the security of the evidence they more important than the relationship with Parliament, give. Again, I do not think there is any difference and that is why I favour Select Committee status. between us on that subject. As the Minister said, We live on the threshold of an era in which civil members of the ISC, as Members of Parliament, may liberties and freedoms will be subjected to increasing be secure in that respect, but witnesses may not necessarily pressure. In such conditions, one has to beef up systems be so secure. If a situation arose in which the courts of regulation, safeguard and oversight. Those systems could question the proceedings in the ISC and enforce need to command public support, confidence and the revelation of evidence, the ISC would simply not trust. I do not believe that, despite the good intentions be able to operate effectively. That is the purpose of of its membership and the witnesses who come before seeking to apply in the statute that the ISC should it, the ISC, as a creature of the Executive, can possibly have the benefit of parliamentary privilege as if it were meet those tests. What is proposed will in reality make a Select Committee of Parliament. little difference. Again, it is clear from the Minister’s reply that the The committee needs new and increased powers to question here is about means rather than ends, and I call persons and papers and to communicate with entirely accept that those need to be carefully looked other committees. There are times when the information into and that the implications of the proposed that comes before the committee should, in certain amendments need to be carefully examined by those circumstances, be referred to other Select Committees. who are sufficiently expert to do so. I shall deal with that in later amendments. This would In the belief that our objectives in this are the same, enable it to carry out its inquiries. It does not mean that we are talking about means and not ends, and that security will be in any way breached because that the Government will now look at ways of achieving mechanisms could be introduced to ensure that that those ends, I am very happy to beg leave to withdraw does not happen with the release of material. the amendment. It is already acknowledged that the committee needs the power to report directly to Parliament and the Amendment 1 withdrawn. argument has been well rehearsed over the years. The ISC needs the power to take evidence under oath: Amendment 2 not moved. Select Committees have that power. It would not be that it took all evidence under oath but it should have the power to do so. As I say, Select Committees have Amendment 3 that power but the ISC does not. Moved by Lord Campbell-Savours Without going into any details, there are times 3: Clause 1, page 1, line 6, at end insert— when the committee might receive assurances on issues “( ) The ISC shall be a Select Committee of Parliament.” where, if those assurances were given under oath, the committee might have the confidence, with the approval of the Prime Minister, to make statements that would 3.45 pm be extremely helpful during the course of public debate Lord Campbell-Savours: My Lords, I welcome this and in the exercise of reassuring public opinion. debate on an issue that I have pursued now for 14 years The ISC needs the power to take evidence under since 1998. As I foresaw the response that the Minister privilege. Technically, if a person appeared before the 921 Justice and Security Bill [HL][9 JULY 2012] Justice and Security Bill [HL] 922 committee today, he could libel another person because House in these resolutions, it would always be open to he would not be protected by privilege. The committee the Leader of the House, on the instructions of the has none of the powers that are afforded to witnesses Prime Minister, to dissolve the entire committee or to giving evidence to parliamentary Select Committees. remove any member of it on a resolution tabled on Above all, the committee should have the power to one day which took effect on the next. There are hold witnesses in contempt if they deliberately mislead adequate provisions, although I shall argue on a later the committee, which is what happens in the amendment that this power would need to be exercised Commons. If Parliament knew that the committee with great caution. had the ability to take evidence under oath and to hold I believe that Parliament could carry resolutions witnesses in contempt in the event that they were that make the committee as hermetically sealed as any deliberately to mislead, it would substantially increase structure that currently exists. We are told that such a the credibility of any reassuring statement that the committee could not be prevented from taking evidence committee makes. in public session, if that were the wish of the committee. The arguments are not new. They have been rehearsed In response, I argue that a resolution of the House at length on a number of occasions in the past, most could introduce a general prohibition on the Select notably during the passage of the 1989 and 1994 Committee taking evidence in public session—resolutions legislation—we go back a long way in this discussion. of the Commons can be carried to deal with the issue. Those supporting Select Committee status included It could further place a requirement on the committee the noble Lord, Lord Hattersley, then speaking from to seek the permission of the appropriate agencies and the Labour Front Bench, the future Secretary of State the Prime Minister in conditions of dispute, if it for Trade, the noble Lord, Lord Mandelson, and the wished to take evidence in public in particular future Minister at the Cabinet Office, now the noble circumstances. It is argued that although a Select Lord, Lord Cunningham of Felling. All made positive Committee is neither more nor less likely than the ISC speeches in favour of Select Committee status. In to leak, as a Select Committee it would have the right 1989, the entire Labour shadow cabinet, including the to publish reports in a way that could prove prejudicial shadow Home Secretary and Foreign Secretary voted to the interests of national security. A resolution of for full Select Committee status and not a halfway the House could introduce a general prohibition on house. I have a copy of the Division List and the entire the Select Committee publishing reports without approval. Labour membership in the House of Lords at the time It could further place a requirement on the committee voted for Select Committee status. We are not arguing to seek the permission of the appropriate agency and new principles today. the Prime Minister in conditions of dispute, if it Some say that legislation is required if the decision wished to publish a report. Safeguards would be available is taken to accord Select Committee status, but that for every eventuality in the event that it were to be is not altogether clear, as the noble Lord, Lord Butler created a full Select Committee of Parliament. of Brockwell, was saying. It is argued by many that, As prime ministerial appointees, members are currently although some tinkering with the law might be responsible for reporting collectively to the Prime necessary, resolutions establishing the committee— Minister. It is argued that such limited powers to effectively a Joint Committee—carried in both Houses report would not be possible if the committee were with simple resolutions could cover all the functions appointed by the legislature. There is no reason why of the committee. the resolution of the House should not stipulate the I recognise that there is some opposition to the procedure to be used in the publication of reports. It whole proposal. Some argue that the fact that the could require the committee to publish its reports committee reports directly to the Prime Minister gives subject to sidelining by the Prime Minister for reasons individual members of it additional clout, kudos, weight of national security, as currently happens. or importance in the political world. That was the view of some on the committee when I was a member. It is also argued that a move to a parliamentary I strongly reject that view. Others argue that no way arrangement could lead to greater pressures on Ministers can be found to restructure the practices and the to be accountable as witnesses, with less emphasis on procedure of the Select Committee so as to ensure agency heads giving evidence. That argument is not executive influence for reasons of national security supported by an examination of practices in some of over material that it may seek to publish. That is the House’s other committees. In my 11 years on the simply untrue. A resolution of both Houses could Public Accounts Committee, Ministers never attended require that the committee sought the approval of the as witnesses. I am not advocating a prohibition on appropriate agency before reporting to the House. The Ministers attending the ISC, but Ministers would be resolutions could further provide that, in the event of no more likely to attend a House Intelligence Committee a dispute arising between the agency and the committee than the ISC. With hearings being held in private, over the publication of information or evidence in a there will be no additional pressure on Ministers to report to the House, the matter at dispute could be attend. I believe that with the right membership, a referred to the Prime Minister for his decision and the parliamentary committee is as secure as the ISC. I committee could be required to comply with the decision reject the statement in the Green Paper as I said in an of the Prime Minister. That is what I referred to earlier intervention; if the right people are selected during my Second Reading speech as the override. there will not be a problem. If in unforeseen circumstances, the committee, or I remind the Committee that this is the first real any member of it, were to threaten to breach the open debate we have had in Parliament on this issue in committee’s rules and procedure, as agreed by the 14 years. I welcome this debate. We need now to grasp 923 Justice and Security Bill [HL][LORDS] Justice and Security Bill [HL] 924

[LORD CAMPBELL-SAVOURS] The American culture of committees is very different the mettle and not muck around with some interim or from ours. The noble Lord may have seen those secondary arrangement. There is an expectation among committees in action but I invite him to go and look colleagues that the system should work. We must be at the Senate public hearings on intelligence. The satisfied that the structure we create is going to work questions are rehearsed, anodyne and provided in so that we have a system that is credible with the public. advance to the security agencies—a performance that, as a member of the Intelligence and Security Committee, I would be embarrassed to take part in. It The Marquess of Lothian: My Lords, I have long is that difference of culture between Select Committees, been an admirer of the persistence of the noble Lord, which are there in order to inform the public in their both in this House and in the other place. Certainly, in hearings, and our committee, which is there to get to regard to his amendment, that is no exception. I wish the bottom of intelligence matters so that we can to correct him on one point he made at the end. There exercise oversight on matters that cannot be made is no prohibition on relevant Ministers attending the public, that means that the noble Lord’s amendment is ISC and they have done so on a number of occasions. found wanting. That is simply a matter of fact. I have every regard for the idea that where information Over the years that I have been a member of the can be made public, it should be made public. I have ISC, I was one of those who thought very carefully every regard, too, for the noble Lord’s view that as about the future of the committee and whether it far as possible Parliament should be the first should be a Select Committee. Although I understand receptacle of reports, which indeed is provided for in many of the points made by the noble Lord, particularly this legislation. But I also understand that there are in relation to privilege, I shall say why ultimately I do matters that we take evidence on that are never going not agree with him on making this committee a full to be seen openly in those reports—they will appear as Select Committee of Parliament. asterisks or redactions—because there are matters of Over a long—probably overlong—if broken career national security that we as a committee need to look in the other place, I served on two Select Committees. at in detail; we need to be able to show publicly that we Their purpose—I refer to the Select Committee on have gone down those alleys in detail but only the Energy and the Public Accounts Committee—was to Prime Minister can see the answers that we got. I openly take evidence that was available to the public believe if that was to be done in a Select Committee, it on matters of relevance in terms of energy and of would bring the whole concept of a Select Committee public accounting. The culture of a Select Committee down. is based on being able to take open evidence. There is As I said at the beginning, I have listened very no compunction on witnesses at a Select Committee carefully and I have some sympathy with what the to give full answers; there is no evidence given on oath. noble Lord is proposing, but in my experience, in But normally a Select Committee is not dealing with terms of the Intelligence and Security Committee it confidential information that cannot be disclosed in would be a mistake. that forum. Lord Lea of Crondall: My Lords, I wonder whether 4pm we are missing a major point in all this, which is why Earlier, there was a little misunderstanding about my instinct is strongly to support my noble friend the Public Accounts Commission and the Public Accounts Lord Campbell-Savours. I refer to public confidence Committee, which reminded me that when I was a in the work of MI5 and MI6 and what we know about member of the Public Accounts Committee, we took them. evidence from no less a person than the noble Lord, There is a sort of closed shop mentality at the Lord Butler of Brockwell, along with two senior colleagues moment, as I see it, what some people call the “secret who were both, I think, Permanent Secretaries. There state”. People have the right to write their books and has never been a more supreme and elegant example put titles on them, but when I want to find out how of three very senior and able civil servants avoiding many of the e-mails that I write could possibly be the question completely. It was such a supreme example hacked by one of the agencies, there is no way of that I am told that the video of it was made available knowing, obviously. But should there be some way subsequently as a training video at the Civil Service of knowing the categories of e-mails that can be College at Sunningdale. hacked? Is it part of national defence and security that I am making a serious point. If we were to be a we do not know an awful lot about what is going on? Select Committee, there would be a public expectation This has a tangential bearing on whether it is a that we would take evidence in public. I have no parliamentary committee or whether it is the committee objection to the committee doing that where it is that we have at the moment. Incidentally, as I understand relevant—in fact, there is nothing to prevent us doing it—I will be corrected if I am wrong—there is no that at the moment—but I say to the noble Lord that Labour Member of the Lords on this committee at there are many occasions when to attempt to take present. Is that correct? evidence in public would create an even less high regard for the committee that it maybe has at the Lord Butler of Brockwell: There are Labour members, moment, because questions would be answered by the but not Labour Members of the House of Lords. agency heads with the words, “We cannot answer that There are two Members from the Lords, my noble question”. To avoid that, we would have to go down friend and a Cross-Bencher, but there are Labour the American path. Members from the House of Commons. 925 Justice and Security Bill [HL][9 JULY 2012] Justice and Security Bill [HL] 926

Lord Lea of Crondall: The noble Lord, Lord Butler, the years, established a position, as a concept, of is correcting something that I did not say. I said independence. It clearly is not the creature of the Labour Members of the Lords. There are no Labour Prime Minister or of the political parties. It is manifestly, Members of the Lords on this committee. and increasingly, with the election of its chairman, an The information flow should be the subject of a independent form of investigation. Therefore, prima much more substantive statement by the Minister facie, it would be much more sensible to use that when he responds than is normal on these occasions. I mechanism and to make such changes as are necessary was interested in the remark made as an aside by my for the particularities of such a Select Committee so noble friend Lord Campbell-Savours on the fact that that at least when it is referred to as a Select Committee this question en principe has never been discussed in people immediately catch on—in so far as they know the past 14 years. I rather suspect that if we were setting about anything in Parliament—that this is an independent, up a constitution for a new member of the United non-party parliamentary committee that is treated by Nations, we would be a little worried if that were the its members as a place where they work in the national case. Although I am not saying that this amendment is interest and not in their party-political interest. the right thing, I will support it because I believe that I think there is an important advantage in using the it opens up a very important question. We know that Select Committee structure. My worry is that my the noble Lord, Lord King of Bridgwater, is a typical, noble friend will be led by all sorts of officials—I have reputable, outstanding and well respected member of been in this position and I hope that the noble Lord, the circle in which this sort of activity takes place. It Lord Butler, will excuse me when I try to describe used to be called the Establishment. I do not know it—of the “better not Minister”, “it would be safer to whether that was a compliment or an insult; it was half do something slightly different”, “you never know way between. However, we do not need to be so scared what might happen” kind. That attitude is endemic of the idea that we are always playing into the hands in the giving of advice because advisers would of enemies of the country, whether it is al-Qaeda or prefer not to have given advice that turned out not to anybody else, if we have a more adult approach to be quite right, so it is better to give the most negative these matters. Political balance is needed by those who advice. have been involved in the agencies—I see a couple on the Front Bench—where people find it perhaps difficult I hope my noble friend the Minister will be prepared to understand the world where other people come to say that we can create a construct that is a Select from. It would be much better if the normal rules of Committee and sits naturally in the parliamentary political balance and openness were observed. structure but is specifically designed to deal with security Finally, as regards the remark of the previous speaker, matters and will be what everyone outside will recognise we had the example last week of members of the is different from a Select Committee on the environment Treasury Select Committee not covering themselves in or a Select Committee concerned with trade and industry. glory when asking questions about LIBOR because Is it not better to use the strength of the Select they did not really understand what they were talking Committee process and procedure and, above all, of about. I can see the objection that ordinary souls on a public understanding rather than to try to create something committee like this would be of no use because they special? would not know what they were talking about. Obviously, I very much respect my noble friend Lord Lothian by definition, they would not know what they were and I understand his fear that the Select Committee talking about as they would not have been serving in will be expected to have public hearings. I agree that a one of the agencies or been on this intelligence committee public hearing in which every answer is, “I am afraid I for a number of years or been Secretary of State for can’t answer that” will be an embarrassment and not Defence or whatever. I wonder whether that is going helpful, but it seems to me not impossible that, before to inspire public confidence. any such hearings are started, this Select Committee should publicly be said to be a Select Committee that Lord Deben: My Lords, I intervene as somebody does not have public hearings, except in unusual who has not been a member of this committee. I have circumstances. You start off as you mean to go on. No now managed to get papers from the noble Lord who one would misunderstand that. Indeed, I think if it sits next to me. Unusually I find myself wishing to ask were stated like that, it would be much easier for the my noble friend to listen carefully to the words of the committee to proceed, and I would like to see it. But to noble Lord, Lord Campbell-Savours, for the following say that because it is different from other Select reason. The issue is the confidence of the public in this Committees in that sense, it ought to be set up in an committee. I have a difficulty of inventing a committee entirely different way is a mistake because it is more of a particular kind in order to meet that confidence similar to a Select Committee in every other manner. requirement because it seems to start from a grave What people want to know is that it is independent disadvantage of looking as if you have an artefact and all-party, that its members take things seriously as here. People complain about the fact that nobody parliamentarians and that its secrecy is only the secrecy seems to know too much about what goes on, so let us that is necessary because of the nature of the things invent something that seems to meet their requirements. that it discusses. That is what it will look like if we make the alterations I hope my noble friend will not be led astray by the suggested by the noble Lord, Lord Butler, although I siren voices of those for whom this is a step too far. We am entirely in favour of them. have been a long time discussing this issue. The noble The advantage of a Select Committee is primarily Lord, Lord Campbell-Savours, reminded us of how that it is something that people know and it has, over long and there was time before even he came on the 927 Justice and Security Bill [HL][LORDS] Justice and Security Bill [HL] 928

[LORD DEBEN] of their staff. The one thing one cannot afford in this scene in which this discussion was taking place. I hope area is inadvertent leaks or the innocently meant, but we will not step back now. We ought to do the thing foolish, acts of the unwise. properly and set down the terms of the Select Committee What the Government propose in this Bill is, in my in advance. judgment, appropriate. We have a committee that is accountable but not wholly transparent for perfectly 4.15 pm good reasons. It has the capacity to look at secrets in Lord Carlile of Berriew: My Lords, I welcome the detail but within an appropriate context—as limited, opportunity to say a few words on this amendment, for example, by Clause 2(3), which means that the mainly because I always listen with great respect to the Prime Minister and the ISC must be satisfied as to the noble Lord, Lord Campbell-Savours. His knowledge part that anything that might be inquired into plays in of parliamentary procedure is second to none and he any ongoing national security operation. is probably the most skilful of anyone I have observed My judgment, for what it is worth, is that what the in what one might call the parliamentary maze. However, Government propose in this Bill creates a prudent and I disagree with his proposal that there should be a carefully thought-out structure for the proper and Select Committee for the following and other reasons. rigorous scrutiny of how secret material is dealt with First, intelligence is not created in a vacuum but for by Her Majesty’s Government. There is a danger that a reason. Sometimes it is found to be created for a we play into the hands of those who believe that reason that proves to be suspect but not necessarily to because something is secret there is some kind of be followed. It is not completely free of scrutiny; far ghastly Executive conspiracy going on. That is completely from it. A little later in the Bill there are references untrue. Of course, mistakes are made; there are people to the Intelligence Services Commissioner. I am bound in the secret services who have to delve into the most to say—I said this before when I was independent difficult things that face our society, and they are reviewer of terrorism legislation—that the Government bound to make mistakes. I hope that occasionally they and the security services could give a more coherent do make the odd mistake in the protection of the and fuller narrative of what they do. I pay tribute to public, because overcaution is not a bad thing if it the noble Baroness, Lady Manningham-Buller. She saves lives—sometimes large numbers of lives. But the started the process in a convincing way of giving at menu provided in this Bill allows the proper balance, least some narrative that enabled not only the public and I shall, if necessary, not support the noble Lord’s but, perhaps more importantly, parliamentarians in amendment. the first instance to understand why certain things Lord King of Bridgwater: The noble Lord has great were being done and certain actions taken. It is subject experience in these areas, and I take it from the tenor to oversight and it is necessarily subject to confidentiality. of his argument that he is not advocating a Select Accountability is very important but we have to face Committee approach. He said that he was in favour of up to the fact that full transparency can never be what the Government have in the Bill, but since then achieved, and indeed should never be achieved for it the noble Lord, Lord Butler, and the noble Marquess, runs the risk of exposing those who do very difficult Lord Lothian, have produced amendments. What is tasks for our intelligence service to risks to which we his view on those? would not wish them to be exposed. Furthermore, a Select Committee of either the Lord Carlile of Berriew: At the moment I am dealing other place or both Houses involves the normal Select with the amendment proposed by the noble Lord, Lord Committee procedures. It is very difficult to limit Campbell-Savours. I listened with great care to my those procedures because Parliament makes its own noble friend Lord Henley from the Front Bench, and I rules. Those of us such as the noble Lord, Lord am very content with the approach that he has taken. Campbell-Savours, a number of others present and We should wait and see what the Government come me—derided as we are by some for having been in up with in answer to the noble Lord, Lord Butler, who the House of Commons before coming here—know has great wisdom and experience in these things—I something that possibly not everyone else knows, which am completely open-minded about that. But I am not is that Erskine May is not like a legal textbook. The happy with the idea that we should have a conventional rules of parliamentary procedure are often made up as Select Committee or, even worse, a Select Committee you go along and one cannot anticipate clearly what whose rules have been fiddled with for this purpose. they will be. Sometimes the mood of the nation changes those rules. Think back to what happened in London Lord Elystan-Morgan: My Lords, like many Members on 7 July 2005 to see the emotion that followed those I have been greatly impressed by the contribution events and how easy it would have been for parliamentary made by the noble Lords, Lord Campbell-Savours and procedure to have been changed, either to make a Lord Carlile. Both have the gift of being able to Select Committee much more secretive in its approach— articulate their views with awesome clarity and very inappropriately so perhaps—or to go the other way great force. If one had to, I should find it somewhat and open up everything to public scrutiny. difficult to decide which one is correct in this matter. If Members of this House or another place are However, in respect of this debate and the earlier appointed to Select Committees by the normal route, Amendments 1 and 2, it seems that everybody’s objectives it exposes much of what is given to them to their staff. point very much in the same direction. The Government should be entitled to look at the In the first instance is the desire for sovereignty and ability of the proposed members of a committee to independence for this particular body. By sovereignty retain and hold to confidential material and the reliability one means that it is an organ, extension and delegation 929 Justice and Security Bill [HL][9 JULY 2012] Justice and Security Bill [HL] 930 of Parliament, to such a degree that, as far as the Bill way that we might at least have a public hearing. I of Rights is concerned, it would be unchallengeable in certainly saw the risk, exactly as posed by my noble the courts. I think that we are all agreed on that friend Lord Lothian, that if you were not careful you matter. At the same time, it has to be independent of would end up with prepared questions and prepared the Executive and Prime Minister, which means that it answers—all planted—and it would be just a stage should be, to use a canine expression, the watchdog of show, which would not carry much credibility. Parliament rather than the poodle of the Prime Minister. As for the challenge about how we achieve this It is much easier to enunciate that principle than to balance, I reflected on a bit of history. When Sir Anthony work it out exactly because, by definition, the Prime Blunt had to be outed at the beginning of the 1979 Minister and to a large extent the Home Secretary has Administration of the Prime Minister Margaret Thatcher, a constant flow of intelligence information, which will there were considerable debates about whether it was simply not be disseminated generally. time to have some sort of committee. Jonathan Aitken My other point relates to Select Committees. I got quite a bit of publicity for being in this particular listened carefully to the noble Marquess, Lord Lothian, session when he stood up and said that, and believe that the concept of a Select Committee is “one debate and one Written Answer do not add up to adequate sufficiently broad and flexible to allow a great deal to and continuing scrutiny of the Security Service”.—[Official Report, be done of the nature suggested by the noble Lord, Commons, 21/11/79; col. 446.] Lord Campbell-Savours. I would have thought that a I think we would all agree with that. He said the Select Committee could always decide whether to sit Government should take the initiative and if they did in public or not and, if so, on exactly what terms. A not move to establish a “senior and more cautious” Select Committee can decide whether a single word of committee of privy counsellors, then in a different its report is to be published or whether there is to be Parliament—perhaps one dominated by left-wing Back- general publication, subject to sidelining. Sidelining, Benchers—a more intrusive, less sympathetic Commons of course, can be a severe sanction. I will never forget Select Committee might be set up. the day, in about 1967, when I was a Member of the 4.30 pm House of Commons and that flamboyant and splendid Member of Parliament Tam Dalyell was hauled before That was in 1979. I looked on a bit further and saw the House to answer a serious charge of contempt. It what I certainly did not attribute to the noble Baroness, related to a Select Committee that was looking into but related to the rather dismissive comment of the the affairs of Porton Down, a most delicate situation Deputy Prime Minister about our “veneer of experience”. as we all appreciate. There was an awesome hush; it I found that the noble Lord, Lord Butler, was dispatched was almost like a public flogging. There was the miscreant to Canada and Australia in 1992 to garner information standing ashen-faced at the Bar of the House. It on their different systems of oversight. That reminded taught me a lesson about the tremendous and terrible me of one of the pitfalls of the system of oversight in jurisdiction that the House of Commons has, if it Australia. It was decided there that it was right to set wishes to use it in a situation like that. up an oversight committee. Therefore, the Chief Whip sent round a note saying, “Is anyone interested in Where do we arrive? First, at a body that is not being on the oversight committee?”. All the awkward appointed by the Prime Minister; secondly, a body squad—the only people who had taken much interest that is unchallengeable in the courts; and thirdly, a in the intelligence agencies, half of whom thought that body—possibly a Select Committee—that is able to do they ought to be abolished—found themselves appointed its work with the confidence of the public, and yet able to the oversight committee. It is no secret that it was to maintain an absolute confidentiality which is so not very long before that system completely collapsed important to its very function. because the agencies were certainly not going to pass on any information to people who were determined to Lord King of Bridgwater: My Lords, I agree very abolish them anyway. much with the noble Lord that—as the noble Lord, On the issues that have to be addressed, I have great Lord Butler, said—there is no argument about the respect for my noble friend Lord Deben and the noble ends. We need to establish public confidence in a very Lord, Lord Carlile, who, in addition to the noble important committee which has a very important role Lord, Lord Campbell-Savours, have persuasively set in overseeing the intelligence agencies and which clearly out the arguments here. The noble Lord, Lord Carlile, has to be regarded as being in a different world from raised the fear that is ever present in the minds of the other areas of responsibility that Select Committees those responsible for our affairs, whereby you could deal with. This is a difficult issue and a number of fall foul of an angry and disruptive Parliament, the interesting points have come up during this debate orders of procedure and rules of the House could in which I had not anticipated. One point, made by my some way be changed, and your beautifully constructed noble friend Lord Lothian, was the implication that Select Committee could be torpedoed or undermined this must involve, as I understood it, a majority of and found to be a seriously damaging institution. The public hearings. My understanding is that the Defence difficulty, as the noble Lord, Lord Elystan-Morgan, Select Committee, particularly when discussing our said, is that the risk is not just of being summoned to nuclear deterrent, goes into secret session and there the Bar of the House but of some real damage being has never been any problem with that. I am not aware done to the national interest—perhaps real damage to of any leaks from any of those proceedings. However, our relationship with the United States intelligence it is a challenge. The noble Lord, Lord Campbell-Savours, agencies, which are, as we know, important to our might remember that when we tried to meet totally in activities in our intelligence and security arrangements. secret, as we did, I tried to see whether there was some These are considerable considerations. 931 Justice and Security Bill [HL][LORDS] Justice and Security Bill [HL] 932

[LORD KING OF BRIDGWATER] not see the distinction between the committee being The issue is that the committee cannot be a normal there to ask questions in public or as something different Select Committee. The noble Lord, Lord Campbell- to get to the bottom of an issue. Savours, has accepted that because he has proposed in I agree, of course, that the committee must have the a later amendment that the chairman must be appointed confidence of the agencies and that it must have public by the Prime Minister. I support the noble Lord on confidence. I would add, perhaps as a subsection of that for reasons that we might discuss later. What is that second point rather than as a third category, that actually proposed in the Bill—no amendment to this it must also have the confidence of those affected by has been tabled—is: events. When I was a member of the London Assembly, “A person is not eligible to become a member … unless … the I was involved in some work following the events of person is … nominated for membership by the Prime Minister”. 7/7, and one of the benefits of our being able to However, Parliament has the power to reject someone undertake some work was that it fulfilled the need of who is nominated by the Prime Minister, in which case some who had been affected to tell their story and to the Prime Minister has to nominate someone else. have their story listened to. I am not suggesting that That situation is a sort of halfway house. this is a pattern or even relevant to the majority of the How the issues are handled are part of all this—issues ISC’s work, but I would not want it to be forgotten. relating to the method of appointment of the chairman I think that this debate is leading us towards there or membership, public hearings, or redaction—noble being a Select Committee and that badging it as such Lords will be familiar with the question asked in the is important because of what that says about the focus Intelligence and Security Committee report asked: of Parliament’s responsibility to the public. I do not how do we control the dreaded asterisks that keep think it would require the rules to be fiddled with, but bouncing up. One can move to a Select Committee. The it would require them to be made fit for purpose. Minister responded constructively on Amendments 1 Perhaps it is naive and untraditional of me, but I do and 2, and Amendment 3 also ought to be taken away not see why the rules of a Select Committee cannot be by the Government. They should sit down and consider made fit for purpose. It might require a lot of work, whether there is a way forward. I have a sense that we but I think it ought to be done. will get there in the end. The committee started in I have some very non-technical and rather inelegant 1994 and is 18 years old. We might just consider that amendments later, but the point that they are intended we are brave enough to move on and involve to raise is that the default should be that the committee parliamentarians who have proved that they can be works for the public and in public, not as a stage trusted. That issue is important and I hope that this show—absolutely not, because to take up one of the can be sustained. points that has just been made, I for one think that I was honoured to be the first chairman of the the most important questions that tend to be asked are committee, and we had a very high standard of the supplemental ones. I am glad that we are having membership. Virtually everyone was a privy counsellor this debate because I think that it is taking us in an and a number had previously been Ministers. The important direction. representative from your Lordships’ House at that time was my noble and learned friend Lord Howe of Baroness Manningham-Buller: My Lords, I declare Aberavon. As a former Foreign Secretary, he had had what I hope is an obvious interest—my membership of responsibility for both the SIS and the GCHQ. He was the Security Service for 33 years—although I should succeeded, when the Government changed, by a Labour warn the Committee that I retired five years ago and Member of this House who is sadly no longer with us, so am out of date. Lord Archer of Sandwell. Now we have broken major I should like to reiterate a couple of points. I ground because two Members of the House of Lords listened with great interest to the points made by both are included in the nine and, in winding up the Second former members of the ISC, current members and Reading debate, the Minister said there was no reason others with a close interest in this matter. It is certainly under the statute why there should not be eight Members the case—and I do not think that I am out of date in of the Lords and one Member of the Commons. It saying this—that it is in the interests of the security would be a brave person who suggested that, but it is and intelligence community to have either a Select possible under the legislation. Committee or the present committee as it stands seeking A number of issues need addressing, but I remain to give reassurance to Parliament and the public that attracted to the idea of moving to a Select Committee, these agencies are properly run, obeying the law and with all the proper safeguards and without any obligation doing a reasonable job. As the noble Lord, Lord to hold public hearings, which would be very difficult. Carlile, said, they will make mistakes—it would be a The evidence of the US Senate Select Committee on delusion to suggest that any organisation was free Intelligence suggests that, even though it has had from making mistakes—but certainly when I was reporting problems of security and leaks, those would have to the ISC I hoped to own up to and discuss those happened whatever form the committee took at that mistakes. time. We can take some comfort from that. The support of members of the public is necessary not only in terms of general support for the organ of Baroness Hamwee: My Lords, like other Members government but because, to do their work, the agencies of the Committee I am a bit puzzled about how require that support every day of the week. They need polarised the debate became a few minutes ago. It the public to join them as recruits—they want to seems to have swung back now. I do not see all the attract high-quality recruits—they need them as sources distinctions that have been drawn, and I certainly do of information, and they need them to help in whatever 933 Justice and Security Bill [HL][9 JULY 2012] Justice and Security Bill [HL] 934 way possible. Someone might be asked, “Can I come separate. I suspect that this might reduce, rather than and sit in your bedroom with a camera?”. I might say increase, public confidence in it because people would no but people say yes to the officers of the Security see that it was a Select Committee that did not operate Service daily. Therefore, when we talk about public like any other Select Committee and could not really opinion, the services require the help of the public to be regarded as a Select Committee in the true sense in do their job and, in my experience, they get it. which the public understand it. When we talk about whether to go for a Select Committee—a proposal with which I have a lot of Lord Campbell-Savours: Could I draw attention sympathy—or an improvement on, or development of, again to the noble Lord’s own argument over privilege? the last one, I share the view of the noble Lord, Lord The issue of privilege will not arise in the event that it King of Bridgwater, that we will get there at some is a full Select Committee because by definition it has stage, although whether we will do so at the speed at everything that the noble Lord proposes in his which the noble Lord, Lord Campbell-Savours, would amendments. like, I do not know. I am sorry but I feel that I must take slight issue 4.45 pm with the noble Lord, Lea of Crondall, about the Lord Butler of Brockwell: I accept that, and we will amount of information on the services that is available be coming to some other amendments where I will be in the public domain. For certain, my service took its arguing that we should have our cake and eat it. We heart in its hands and commissioned a centenary are entitled, however, to have our cake and eat it. For history of the Security Service. We made the professor the reasons I have been arguing, I do not think that it of contemporary history at Cambridge a temporary is advantageous to have this as a Select Committee member of the service and allowed him into our because I do not think it can be like any other Select records. We said, “You can make any judgment you Committee. I do think, however, that it requires special like. We won’t seek to query it. There will be a few arrangements to give it the privileges of a Select things that you can’t publish for national security Committee, and I do not withdraw that argument. reasons but we will keep those to a minimum”. If you look at our website—I must stop saying “our”; I left Baroness Smith of Basildon: My Lords, the noble the organisation. If you look at the Security Service’s Lord, Lord Campbell-Savours, has done this Committee website, you will see quite extensive amounts of a service in degrouping his amendments. It is a broader information. and deeper debate than the one we had on the first two Why do these organisations exist? They exist to try amendments. It has been extremely helpful. The noble to protect the United Kingdom and its citizens, and it Lord, Lord Elystan-Morgan, hit the nail on the head is in their interests that as far as possible the confidence when he described it as a useful debate with a lot of in them is well founded and, as far as it can be, widely consensus. I disagree with the noble Baroness, Lady and publicly known. To that extent, I should like to Hamwee, who said this was a polarised debate. I am say how much I welcome the arrival of the ISC and not convinced that it is. This is less about what we how much I look forward to its continuing evolution. expect the ISC to do and how we expect to do it than the structure that can best achieve those objectives. There seems to be a fair amount of agreement on the Lord Butler of Brockwell: My Lords, I wish to make kind of objectives we are seeking. I wrote down a a brief point. In doing so, I know that I risk being couple. The idea of a veneer of expertise has now been regarded by the noble Lord, Lord Deben, as the siren firmly laid to rest. I hope that we will not hear that voice of cautious officialdom—or, in my case, cautious expression again either in your Lordships’ House or former officialdom. However, I want to raise a question outside. I was intrigued when the noble Lord, Lord on what the noble Lords, Lord Campbell-Savours and Deben, mentioned to the Minister the comments from Lord Deben, said. civil servants. I felt the ghost of “YesMinister” creeping The argument of the noble Lord, Lord Deben, was into our debates. Civil Service Ministers sometimes that the badging of the security committee would be have to make a decision and challenge civil servants on improved if it were called a Select Committee. I can some issues. see the case for that. I think we all agree that the The areas of broad agreement were the independence ultimate purpose is that the public should have confidence from the Executive and the issue of parliamentary in the committee’s scrutiny of the intelligence services. privilege. I thought the comment of the noble Lord, However, it was clear from the speech of the noble Lord Campbell-Savours, about the power to take evidence Lord, Lord Campbell-Savours, that if this were to be a under oath was a powerful one. Security of information Select Committee, it would have to be hedged around caused considerable concern for those who are not by a very large number of parliamentary resolutions, keen on having a Select Committee structure but who and that would have the same effect as the constraints also, like the noble Lord, Lord Campbell-Savours, that are written into the Bill. The question is: would want to protect security of information if there is any that make it more convincing if it were a Select Committee question on that. There is the same point even if the when it was a Select Committee unlike any other structures are different. because it would be so inhibited by those restraints? The issue of public hearings came up. I am not sure They say that something which looks like a duck how relevant that is in terms of structure in that and quacks like a duck can be regarded as being a amendments have been tabled about the kind of public duck, but this would not look like or quack like a hearings there could be and what form they could Select Committee; it would be something completely take. My own view is that they are valuable. They 935 Justice and Security Bill [HL][LORDS] Justice and Security Bill [HL] 936

[BARONESS SMITH OF BASILDON] Lord King of Bridgwater: The view about a Select certainly should never be automatic but we have that Committee is rather easier to hold if you are in opposition debate coming up. I am unclear whether a Select than if you are in government. The history of this was Committee would have to have public sessions unless that the entire shadow Cabinet in 1989 voted in favour the Committee wanted to have it. It is the best structure of it. When the prospect of office loomed, Jack Straw, for achieving that. who was then I think shadow Home Secretary, was We have also heard from a number of noble Lords asked the same question and was much more cautious about ensuring public confidence in whatever structure about the whole matter. Of course, when they came the Government decide to go ahead with. It was into government there were no moves to introduce a helpful that in the last debate the Minister, if I understood Select Committee. However, times have moved on and his words correctly, said he wanted to look at the best I hope that there will be moves in that direction. means of achieving these ends and consider all implications. I hope he can say that in the context of Lord Henley: My Lords, obviously my noble friend this debate as well. It has been a broader debate in that is right to say that times have moved on. All of us can noble Lords have been thinking carefully about powers, remember as far back as 1989. Things have obviously independence and structure, and I hope the Minister changed since then. I was merely trying to tease out finds that debate and those comments and views helpful. the official view of the Opposition at this stage, but it Public confidence is an issue to take into account. It does not matter because as we all know, and as a very can be well served by public hearings or it can be badly distinguished Cross-Bencher, the noble Lord, Lord served by public hearings, and we will debate that Elystan-Morgan, made clear, we are all heading in the further today. Public confidence does have an impact same direction and at least trying to make sure that we on how sensitive or highly confidential information achieve the right thing—a committee that has the that is relevant to national security is dealt with. So I appropriate degree of public confidence. am interested in what the Minister has to say. I hope I do not want to re-emphasise what I said earlier that he will take on board all the comments made in about the ISC being appointed by Parliament rather the last debate and in this debate. I hope that he is than the Prime Minister, and about its members being smiling because he agrees with me rather than because free to choose their own chair. That will be debated he is amused by what I said. I hope that he will say—as later, in the context of another amendment tabled by I hope I would say if I were sitting in his seat—that he the noble Lord. In parallel with these statutory changes, will take this away and take into account not only the it is the Government’s intention that the ISC will be comments that were made in the previous debate but funded and accommodated by Parliament. The the wide range of views expressed in this debate. They amendment sets up the ISC as a Select Committee of are moving in the same direction and seek that, whatever Parliament. The noble Lord could have achieved that structure the Government want to proceed with, the by the simpler means of leaving out the whole of comments of the House should be taken into account Part 1 and making sure that the appropriate authorities to ensure that the Government get it right, protect in another place created the Select Committee—but he national security, safeguard sensitive information and went down a different route and we are having this also secure parliamentary independence and public debate for the very good reasons that all speakers in confidence. the debate made clear. I will explain why we believe that the ISC should be Lord Henley: My Lords, I was smiling at the noble created by statute. It is to ensure that safeguards are in Baroness only because I thought that she was trying to place to protect against the disclosure of sensitive write my speech, which was not necessarily her job at information. Therefore, the Government do not consider this stage. I agree with her about several things. It has it appropriate for that body to be a full Joint Committee been a very useful debate. The 11 speakers—12 including established merely under the Standing Orders of each myself—expressed a range of views. As the noble House, as other Select Committees are. Lord, Lord Elystan-Morgan, said, we are all heading I hope that the Committee will bear with me if I in the same direction and all trying to ensure, as a expand on those reasons. First, in that scenario, the number of speakers put it, that there will be an appropriate Government would not have a statutory ability to degree of public confidence in whatever we set up. prevent the publication of sensitive material. There I was very interested in the opening remarks of the are two main problems with this. The risk of disclosure noble Lord, Lord Campbell-Savours. He talked about of information that might damage national security the position of many colleagues in his party in 1989. could be increased. This might lead to a situation Many of them are now distinguished members of his where agency heads find it hard to reconcile their duty party. He stressed that all of them, to a man and to protect information with their duty to facilitate woman, were in favour of Select Committee status for oversight. This could lead to a sharing of less sensitive what became the ISC in 1994 under the chairmanship information and therefore a corresponding reduction of my noble friend, and what is now being developed in the effectiveness and credibility of oversight. by the Bill. I was looking forward to hearing the Secondly, it would not be possible for the most official view of the Opposition on whether Select sensitive information to be withheld from the Committee. Committee status was the appropriate road to go It is important that safeguards exist so there is adequate down, but I heard no answer on this from the noble provision for those exceptional circumstances where Baroness later in the debate, nor on what the collective the disclosure of information, even to the Chairman view of the party was. It might be that there are now of the Committee, would be damaging to national different views, because 1989 is a considerable time ago. security and/or would jeopardise vital agency operations 937 Justice and Security Bill [HL][9 JULY 2012] Justice and Security Bill [HL] 938 or sources of information. The equivalent grounds on in principle of what was said and their recognition which information can be withheld from the Committee that this is an argument about the credibility of the under the Intelligence Services Act 1994, have been committee and the securing of public confidence in used very rarely, as those former or current members whatever arrangement we make. The noble Lord, Lord of the Committee will know. We would expect the Elystan-Morgan, was correct when he said that we all similar powers in the Bill also to be used sparingly—only want the same. We are all looking for a solution which in exceptional circumstances. meets those criteria. Thirdly, there is the appointments process. Again I thank the noble Lord, Lord Carlile of Berriew, for we will deal with that in greater detail later on. Here his comments on my modest experience over the years the Prime Minister has a role, and the noble Lord, but I am not asking for total transparency. I believe Lord Campbell-Savours, in a later amendment proposes that it is quite possible for resolutions of the House of a much stronger role for him. That role is important. Commons to circumscribe the powers of the committee. The ISC is unique in that members of the Committee In 1998 I went to see the then Mr McKay, one of the have access to very important and extremely sensitive clerks in the Commons, and I went through all these information, and it is important that the appointments matters with him. We took them one by one to ensure process has sufficient safeguards to ensure there is as that what I was arguing at the time would stand up little risk as possible of unauthorised disclosure of and be supported by way of parliamentary resolution. sensitive information and the consequences that could So much of the concern to which the noble Lord do significant damage to national security. referred would be dealt with under the arrangements The effect of the noble Lord’s amendment to create that I am setting out. a Select Committee is not clear to me. He says it could I am indebted once again to the noble Baroness, take evidence under oath. In the Bill, even if we were Lady Manningham-Buller, for her sympathetic approach to accept all the noble Lord’s amendments, the ISC to my argument. I also hope that the noble Lord, Lord would still be created by statute and safeguards would Butler of Brockwell, will reconsider his position if still exist to protect national security in those three assurances are not forthcoming on his privilege areas I have listed, although admittedly altered to amendments. If the Government cannot give him the some degree. Unless the noble Lord pursues this suggested assurances that he seeks on the issue of privilege then I alternative policy of deleting the whole of Part 1, his am afraid that he will be left with no option but to amendment would not create a full Joint Committee support Select Committee status, unless he wants no because that can be done only by the Standing Orders change. of each House. It would create an entirely novel body, The wording of my amendment is limited in the a Select Committee established by statute. sense that it cannot be incorporated into law as it To what extent would such a body share the stands. I had prepared a long contribution—which I characteristics of the other Select Committees? The am not going to make—on how the wording could be Bill makes it clear that, even were it amended in other established in law. I had been informed that there were respects according to noble Lords’ wishes, the ISC is concerns about the fact that I was trying to place different from other Select Committees in fundamental duties and responsibilities on a Select Committee that respects—for instance, in relation to appointments have been set out in statute. I researched other legislation, and reporting. That being so, I believe it is unclear including the Parliamentary Standards Act—of which whether or to what extent changing the ISC in this the civil servants in the Minister’s department might way would give it the other characteristic of a Select wish to be aware—and the National Audit Act, where Committee. Indeed, I believe the risk is that describing there are precedents for making the required changes the ISC as a Select Committee when it has characteristics in statute. not shared by other such committees could positively mislead as to the ISC’s true character. On that basis, and at this stage, I beg leave to withdraw my amendment. I hope that that explanation is sufficient for the noble Lord. I wait to see what he says. This has been a useful debate and there will no doubt be further discussions Amendment 3 withdrawn. on this matter, but I believe that it is appropriate for the noble Lord to withdraw his amendment. Amendment 4 Lord Campbell-Savours: My Lords, perhaps I may Moved by Lord Butler of Brockwell say a few words in winding up the debate. I say to the noble Lord, Lord Henley, that I recognise the wording 4: Clause 1, page 1, line 9, at end insert— I have used could not be put in the Bill. My amendment “( ) Financial support shall be available to members of the ISC who are members of the House of Commons as if they were is simply my attempt to ensure that there is a debate. I members of a Select Committee of that House; and to those who recognise perfectly well that if we were to go down this are members of the House of Lords as if they were members of a route, while there would be, as the noble Lord, Lord Select Committee of that House.” Butler of Brockwell, said, a requirement for something in statute, the body of the change would be incorporated Lord Butler of Brockwell: My Lords, I shall speak into parliamentary resolutions. also to Amendment 9. 5pm It is right and customary to declare an interest in I thank the noble Lords, Lord Elystan-Morgan and these amendments. I certainly do so in this case because Lord Deben, the noble Baroness, Lady Hamwee, and I have a direct financial interest in Amendment 4. The my noble friend Lord Lea of Crondall for their support purpose of the amendments is that the chairman of 939 Justice and Security Bill [HL][LORDS] Justice and Security Bill [HL] 940

[LORD BUTLER OF BROCKWELL] about the theory of a Select Committee but about the the Intelligence and Security Committee should be practice of one. We may well return to this matter in treated in the same way as the chairmen of Select the future. Committees in terms of remuneration. The purpose I strongly endorse the proposal in Amendment 9 of Amendment 4 is that the members of the that the chair of the committee should be remunerated Intelligence and Security Committee should, similarly, in line with the chair of departmental Select Committees. be treated in the same way as members of Select I have served under four Intelligence and Security Committees. Committee chairmen, I think, and in each case I have I wish to make it absolutely clear that Amendment 9 been amazed at the amount of work they are required is not tabled at the behest of the current chairman of to do compared with the ordinary members of the the ISC, the right honourable Malcolm Rifkind, who committee. The ordinary members do preparation does a great deal of work for the committee on an behind closed doors in secure surroundings for an entirely voluntary basis. I think that my colleague the afternoon and then we have the meeting the next day, noble Marquess, Lord Lothian, will agree that this but the chairman is in almost every day, going through committee chairman certainly does not do less work issues, deciding whether they should be brought to the than the chairman of a Select Committee. He works committee. The chairman has a major piece of work. many more days of the week than the days on which It is therefore only fair that the chairman should be the ISC meets. For financial purposes—and leaving properly remunerated, as he would be if he were a aside the particular individual, Sir Malcolm Rifkind—the chairman of a Select Committee. chairman of the ISC should, as a matter of justice, be treated similarly to the chairmen of Select Committees Lord Campbell-Savours: My Lords, I wholeheartedly and receive remuneration accordingly. I think I can support the amendment. My parting speech in the say that that is the view of the other members of the House of Commons in 2001 was on the very issue of ISC, who are similarly grateful for and deeply impressed the payment of chairmen of Select Committees. I by the work that our chairman does. wanted to see the development of what you might call As regards Amendment 4, the House of Lords is a separate career structure in the legislature as kind enough to provide that attendance at meetings of opposed to the Executive. When I was a member, the the Intelligence and Security Committee should qualify chairman, the noble Lord, Lord King of Bridgwater, for half the daily allowance—£150—but only on the did excellent work. When I think of the amount of days when this House is sitting. There seems to be no work that he took on, it is inconceivable that we logic in that. We do exactly the same amount of work should now push through legislation without taking regardless of whether this House happens to be sitting full account of that work and the need to ensure that it at the same time. If one day should qualify for the is remunerated. £150 allowance then it seems that the other day should. This point arises because, these days, and as we will Lord King of Bridgwater: I intervene very briefly. I see in the next couple of weeks, the sittings of the thank the noble Lord, Lord Campbell-Savours, for his House of Commons and the House of Lords do not comments and for those that he made at Second always coincide with each other. I regret that. It may Reading, for which I am grateful. I am not sure happen in September that the House of Commons whether this amendment can be made retrospective, will sit and the House of Lords will not. If there is a but it seems an excellent idea. I do support it—it seems meeting of the ISC on those days, my noble colleague logical if a Select Committee chairman in the House and I will not be eligible for the daily allowance. There of Commons now has it. I understand my noble friend is a greater injustice as a result of the unevenness of Lord Lamont made the point. The point the noble the sittings of the House of Commons and the House Lord, Lord Butler, raised is pretty fundamental because of Lords. it applies to every Select Committee of this House. If the House is not sitting, people do not get any allowance I have, as I say, a personal interest in this perfectly even if those committees are working. The issue goes a simple point of equity, which ought to be put right. It bit broader than just changing it for the ISC. can easily be put right in the rules on the financial support of the House. In order to draw attention to it Lord Butler of Brockwell: If I may correct the noble and try to ensure that it is put right, I have put down Lord, it is worse than that. Under the arrangements Amendment 4. for other Select Committees of this House, the members qualify even if the House is not sitting. The noble The Marquess of Lothian: My Lords, I support the Lord shakes his head but if he looks up the rules he noble Lord, Lord Butler of Brockwell, in both of his will find—I see the noble Baroness, Lady Hamwee, amendments, to which I have attached my name. Like agrees with me—that for Select Committees the allowance him, I declare an interest in Amendment 4—on which is available on days when the House is not sitting, but I shall say no more than he has said. He has argued the for the ISC it is not. case with great eloquence and I hope that the Government will listen to his argument. Lord King of Bridgwater: I am grateful to the noble In general terms, I say to the noble Lord, Lord Lord. He has cheered up the noble Lord, Lord Lamont, Campbell-Savours, that these amendments are slightly quite considerably if that is right because he was ironic, given what I was saying in answer to his previous telling me of the committee session he must attend in amendment. We are asking to be treated like a Select the Recess. I simply say that I support this. I do not Committee and, once more, this underlines the fact know quite what the first part of the amendment that the argument on that is not polarised. It is not means or whether the Minister will explain it. I am not 941 Justice and Security Bill [HL][9 JULY 2012] Justice and Security Bill [HL] 942 clear what the financial benefits are for Members of 5.15 pm the House of Commons when they are on Select The second question was in relation to the Committees. We asked for equivalent arrangements position of Members of this House who are members for the ISC. Perhaps somebody will clarify that point. of the Select Committee, such as the noble Lord, Lord Butler, and particularly the anomaly that when Lord Rosser: My Lords, the names of my noble this House is not sitting and another place is sitting, friends Baroness Smith of Basildon and Lord Beecham a noble Lord can get no remuneration for sitting are associated with Amendment 9 and we support the on that Select Committee. Like the noble Lord, I proposal that the chair of the Intelligence and Security sometimes regret the fact that the sitting days of Committee should be remunerated in line with chairs the two Houses often do not coincide. When we are of departmental Select Committees of the House of sitting longer I always remind my colleagues in the Commons. As has already been said clearly, the Commons of that fact but I tend to be somewhat commitment required by future occupants of this post more silent on the occasions when they are sitting is likely to be extensive, bearing in mind that the whole and we are not. As the noble Lord pointed out, purpose of the Bill is to strengthen oversight of the there are a number of occasions when this happens. intelligence and security activities of the Government Again, if he feels that he is not being adequately by extending the statutory remit of the Intelligence remunerated for the days he sits on that committee and Security Committee. The committee, as we know, when this House is not sitting, he ought to take that up will be drawn from Members of the House of Commons with the House Committee, which is the appropriate and your Lordships’ House. It would seem appropriate authority. to determine remuneration as part of the Bill, and to We also hope that Amendment 9 can be addressed relate it to a not dissimilar position in one of the in the appropriate manner in due course. As all noble Houses of Parliament from which the membership of Lords have said, the amount of work involved is the committee is to be drawn. considerable, and the noble Lord, Lord King, speaks A departmental Select Committee in the House of from experience. Simply doing it in line with the Commons has a different but not widely dissimilar arrangements for chairs of departmental Select role to that of the Intelligence and Security Committee Committees in the House of Commons obviously under the Bill. The chair of a departmental Select would not work because the chairman could come Committee in the House of Commons also takes on from this House. As I said at Second Reading, there is a considerable additional level of commitment and no reason why eight out of nine members of the responsibility. There are a number of such posts committee could not come from this House if that was and they are not held by Ministers of the Crown. The necessary. If the chairman is in the House of Commons, officeholders, like the Select Committees themselves, again, that is a matter for the appropriate resolutions are drawn from Back-Benchers, as would be the of the House and for IPSA. If the chairman is a case with the Intelligence and Security Committee Member of this House, again, that will have to be and the chair of that committee. It would therefore taken up with the House Committee. As I said, I hope seem that the chair of a departmental Select that both committees will listen to this debate and to Committee in the House of Commons is the appropriate the various comments that have been made. I hope, benchmark, as provided for in Amendment 9, which therefore, that the noble Lord will feel able to withdraw we support. his amendment.

Lord Henley: My Lords, we can deal with these Lord Butler of Brockwell: My Lords, I am grateful amendments fairly briefly. The noble Lord, Lord Butler, to the Minister for his sympathetic response and to described them as a simple point of equity. On that other Members of the House for their comments. I basis, I hope the debate has been—or will be—listened just want to make clear to the noble Lord that it is not to in due course by IPSA in the case of the Commons a question of feeling adequately or inadequately and, in the case of Members of this House, the House remunerated. There may be different views in the Committee, because in the end decisions have to be House about whether payment of £150 for a day’s made by those appropriate committees. It is not really work on the committee is adequate or inadequate, but a matter for legislation. that is not my point. My point is that there is an To underline that, I remind the Committee that obvious inequity between the treatment of members Commons Members’ pay is entirely a matter for IPSA of the Intelligence and Security Committee and the and it makes decisions in accordance with resolutions members of Select Committees, and that is what I of the House. The relevant resolutions make no provision would like to see put right. I beg leave to withdraw the for additional financial support for ordinary members amendment. of Select Committees so it would be a matter only for the chairmen of committees. I will get to the question Amendment 4 withdrawn. about the chairman of this committee later. IPSA may determine that MPs who hold a position or office Amendment 5 specified in a resolution of the House of Commons Moved by Lord Butler of Brockwell should receive a higher salary than ordinary Members. 5: Clause 1, page 1, line 14, at end insert— IPSA will have no say as to which positions are on the “( ) If the House of Parliament from which a member of the list—that is obviously a matter for Parliament; once it ISC is to be drawn declines to appoint a person nominated by the has decided on that list, it will be for IPSA to set the Prime Minister, the Prime Minister shall nominate an alternative rate. Again, it is for IPSA to listen to this debate. person.” 943 Justice and Security Bill [HL][LORDS] Justice and Security Bill [HL] 944

Lord Butler of Brockwell: My Lords, Amendment 5 which, it was thought, would have breached national is an amendment to Clause 1(4). It seeks simply to fill security had they been tabled, were submitted to the out an obvious point that is not currently covered by Speaker of the House of Commons under the appeal the Bill. procedure. If, in the 1980s, I had applied to be a Under the arrangements proposed in the Bill, the member of this committee, I feel quite sure that if it Prime Minister will propose members of the committee had been left to the Prime Minister of the day—I am but it will be for Parliament to agree to the appointment arguing the converse—the Prime Minister of the day or not. Therefore, we need to provide for the situation might well have objected to a person like me being a in which Parliament does not agree to an appointment. member of that committee. At the moment the Bill says nothing about that. The The problem was that, at the time, people did not purpose of this amendment is to make clear that in know what we were campaigning about. It was about those circumstances, if either the House of Commons reform of Section 2 of the Official Secrets Act and or the House of Lords does not agree to the nomination about the need to introduce freedom of information of a Member of that House to the Intelligence and legislation. In both areas we were successful. All I am Security Committee, the Prime Minister would have to saying is that, before we go down this route and nominate somebody else for the appointment for the require the Prime Minister to consult with whomever, approval of the respective House. I think that is obvious we should have in mind that it is possible that people and that is what would happen. It is not provided for might be blocking appointments in an unfair manner. in the Bill and this amendment is therefore just to fill Amendment 8 deals with the issue that the chair of that gap. the ISC is to be chosen by its members. This is the product of muddled thinking among those who fail to The Marquess of Lothian: My Lords, once again I understand the internal dynamics of the committee. It rise to support the noble Lord, Lord Butler of Brockwell, is as if someone has sat down to devise systems of on this amendment, to which my name is also attached. greater accountability that enable them to avoid taking I will not add much to what he said. I think that the the big question on going for full Select Committee real purpose here is to remind the House that status. In my view, the chairman needs the respect of the committee has nine members. That is written in to the agencies, and new members appointed in a new the statute. It is one of the smaller committees involved Parliament will have no knowledge of the relationship in the sort of work that this committee is doing and it between the chairman or any member of that committee is very important, in my view, that we retain that and the agencies. There is a real danger that the Whips number at least. In the absence of this amendment it is will seek to influence members’ decision about whom theoretically possible that this House might decide to appoint as chairman. It might be that there is an that it did not want the two nominations from this exercise in handing out the jobs going on. I feel that is House made by the Prime Minister and that the Prime it wrong that the committee should be placed in a Minister might decide to leave it at that—have a position where it has to choose its chairman at the committee of seven in total from the House of Commons beginning of a Parliament. New members might be and nobody from this House. This amendment would unduly influenced by previous members against their make sure that that cannot happen by ensuring that, better judgment. As I said at Second Reading, if when were this House or, indeed, the other House to say no I was selected to sit on the committee, I had been to nominations by the Prime Minister to this committee asked to vote for the chairman, I would never have from those Houses, the Prime Minister would be required voted for the noble Lord, Lord King of Bridgwater, to make another nomination. because he was not top of my list of popular Secretaries of State, but within a matter of months I realised that Lord Campbell-Savours: My Lords, I shall speak to he was ideal for the job. You need the experience of Amendment 6 in this group. My amendment deals being on the committee before you start picking the with the wording in Clause 1(5) of the Bill, which chairman. What we are doing here is establishing a states: procedure whereby a chairman will be selected by new “Before deciding whether to nominate a person for membership, members going on to a committee without any knowledge the Prime Minister must consult the Leader of the Opposition”. of who they might be appointing. I have great reservations about this, and I will explain why. I think that this is the product of muddled If a chairman does not fully enjoy the trust of the thinking. This is an appointment of trust. The agencies, there is a danger that that lack of trust may appointment requires the Prime Minister’s knowledge impede the work of the committee by denying access of opposition politicians. I think that Ministers very to material that is on the margins of the memorandum often do not understand what motivates opposition of understanding. There will be material on the margins politicians. of the memorandum of understanding to which the committee wants access, and it is vital that the chairman As an example I take my own appointment. It is is someone who has been picked not by members of utterly inconceivable that the then Prime Minister, the committee but by the Prime Minister. Margaret Thatcher, now the noble Baroness, Lady Thatcher, would have appointed me to that committee. She would have referred to my record in the 1980s Lord King of Bridgwater: I agree with the noble when I was running with the hounds on the issue of Lord, Lord Butler, that the Bill is inadequate without Peter Wright and we caused some considerable difficulty, Amendment 5 because it is simply a diktat. The fact I was informed, in the House of Commons. I had that the Houses of Parliament vote on the members is endless arguments with the Table Office over the tabling not a really democratic position. We hope to see a of Questions. On a number of occasions my Questions, more acceptable position. 945 Justice and Security Bill [HL][9 JULY 2012] Justice and Security Bill [HL] 946

The question I would put to the noble Lord, Lord Opposition speaking and standing up for the government Campbell-Savours, on Amendment 6 is: when he was Minister’s position, so it carried the all-party credibility active on some of these issues, would he have been which I think is helpful. appointed or recommended by the leader of the However, I cannot accept this being in the Bill Opposition? He says that there was no way in which because, while it is a good idea wherever possible, I do Prime Minister Margaret Thatcher, now the noble not think that it was possible in 1997. I do not know Baroness, Lady Thatcher, would have appointed him. who would have done it. The change of Government, Would the leader of the Opposition have appointed and the change of majority party, meant that the them? majority changed on the committee, so having had a I do not see how else you can do this. It is really Conservative majority on the ISC from 1994 to 1997 down to the calibre, resolution and determination of we then changed to a majority of Labour members the leader of the Opposition. In the end, he is in a very but with the Prime Minister appointing me as its chair. powerful position if he says, “These are the people I I like to think that the noble Lord, Lord Campbell- want. These are the people I think should be from the Savours, would be kind enough to say that he thought Opposition”. I do not know—and I do not know that that worked. whether the noble Lord has any background on this— That is why Amendment 7 is good in principle but whether a Prime Minister has refused to accept the cannot be in the Bill. However, Amendment 8, moved recommendation of the leader of the Opposition. by the noble Lord, Lord Campbell-Savours, is right. It is right the Prime Minister should operate that, and Lord Campbell-Savours: If my noble friend Lord the evidence in 1997 suggests that it is the right way to Kinnock had been Prime Minister, he would not have proceed. been put off putting me on that committee because he was well aware of the campaign that we were running Lord Rosser: My Lords, I wish to talk about and its objectives. Amendments 5 and 7 in particular. Amendment 5, as the noble Lord, Lord Butler of Brockwell, said, lays Lord King of Bridgwater: I am grateful to the noble down what happens if a person nominated for Lord for that comment. membership of the Intelligence and Security Committee I would like to support opposition Amendment 7. is not then appointed by the House of Parliament It has not been spoken to by the noble Lord, Lord from which they are drawn. The amendment lays Rosser, but I imagine that he will speak to it. It says down that in this situation, that the chairman of the ISC should be “from the “the Prime Minister shall nominate an alternative person”. Opposition party”. In principle, I support that. One of The Explanatory Notes to the Bill say that the purpose the ways for the committee to gain credibility is for the of the procedure in the Bill for nominating and appointing chairman to be a member of the opposition party. members of the committee, However, I would not wish to see it written into the “is to ensure that the Government retains some control over those statute in this way. I will, if I may, cite my own eligible to access”, experience. We started this committee with considerable highly sensitive information. uncertainty and considerable reservations in a number Many might feel that the use of the words “some of quarters—in some of the agencies and other places—as control” in the Explanatory Notes rather understates to whether it would be reputable. A great effort was the position from the government perspective. This made by both the Prime Minister and the then leader amendment does at least make it clear that the relevant of the Opposition to get a pretty experienced bunch. House of Parliament is not obliged to accept the They were mainly ex-Ministers, and I think almost all Prime Minister’s nominee and that the Prime Minister were privy counsellors. The desire was to have a really cannot simply keep resubmitting the same name, or do credible, reputable and senior committee. It was certainly nothing, but has to nominate an alternative person. the most senior of all the committees, and in calibre Amendment 7, to which the noble Lord, Lord King and experience outranked the PAC, which would otherwise of Bridgwater, has already referred, is, certainly at this be seen as a pretty senior committee. That was the stage, rather more a probing amendment in the light of right way to start. the enhanced role that the committee will have and the need for it to be seen as clearly separate from the Executive. 5.30 pm It provides, as has already been said, for the chair of John Major, the then Prime Minister, asked me the Intelligence and Security Committee to be not whether I would chair the committee, which I did for only a member of the ISC, chosen by its members, but the first three years. Then came the general election a member of the ISC from the opposition party. The and in came a Government who had not been in office Public Accounts Committee, for example, is chaired for 18 years. They were extremely short of anyone with by a senior opposition MP. any previous experience, and those with any experience It must surely be important that the Intelligence at all were needed to discharge ministerial functions. and Security Committee, bearing in mind its strength The then Prime Minister, Tony Blair, then asked me and oversight of the Government’s intelligence and whether I would continue as chairman. I was then security activities, and its role in this sensitive and chairman for four years as a member of the Opposition. potentially controversial area, is an all-party committee I think it was helpful. There was nothing personal that is not only not open to pressure from government about this, but when we made statements and had to or the intelligence and security agencies in the work it comment or report on issues, it was not just some undertakes but perceived as being not open to such former colleague commenting but someone from the pressure. 947 Justice and Security Bill [HL][LORDS] Justice and Security Bill [HL] 948

[LORD ROSSER] the amendment proposed by the noble Lord, Lord The Prime Minister has, under the terms of this Campbell-Savours, and removed the necessity to consult Bill, considerable influence over the appointments to the Leader of the Opposition, there would be even less the committee. He or she is required to consult, not likelihood that he would be appointed, because my reach agreement with, the leader of the Opposition on noble friend—or Mrs Thatcher, as she then was—would nominations, and the two Houses of Parliament can have made the decision entirely by herself, without only decline to accept a nomination and cannot appoint consulting the Leader of the Opposition. We believe someone of their own choosing. Neither does the that it will be important in retaining cross-party support, Intelligence and Security Committee have unchallenged just as it was when the original 1994 Act went through, powers to require information from the intelligence requiring that the committee should be appointed by and security agencies, even though the members of the the Prime Minister after consultation with the Leader committee will all have been nominated through the Prime of the Opposition. For that reason, the Prime Minister Minister, as the Secretary of State can veto the giving should continue to consult the Leader of the Opposition of information to the committee. before he nominates any such person. If the chair of the committee were to be not only a nominee of the Prime Minister but from the same Lord Campbell-Savours: This is quite an important party as the Prime Minister and from the same party issue. The question is very simple. If the Prime Minister, as the Secretary of State, who could veto the use by Margaret Thatcher, had been Leader of the Opposition, the committee in carrying out its statutory oversight would she have allowed someone like me, with my remit of the use of its power to require information record at that time, to go on this committee? The from the intelligence and security agencies, that might answer is no, which is why I believe that this provision well lead to a perception, no doubt unfairly, that the is wrong. leadership of the committee and its most influential Lord Henley: But the noble Lord is also saying that member was a little too close to the Government of he wants to delete the ability to consult the Leader of the day, particularly bearing in mind that the objective the Opposition and leave it entirely to the Prime of the Bill, as explained in paragraph 3 of the Explanatory Minister. I have to say that the Prime Minister probably Notes is to provide, would not have appointed him either, so the issue does “for strengthened oversight of the intelligence and security activities not arise. What we suggest is that, to maintain cross-party of the Government”. support—I suspect that everyone agrees on this except the noble Lord himself—there should be a degree of Lord Henley: My Lords, we have four amendments consultation between the Prime Minister and the Leader in front of us, all slightly different but all covering of the Opposition on this issue. The simple fact is that appointments to the committee. I will deal with them consultation did take place and we are all very happy, in turn. Amendment 5 seeks to ensure that if someone my noble friend Lord King included, that he was is turned down by Parliament the Prime Minister will taken on to that committee. have to make another nomination. This is something Rather than dealing with the amendments sequentially, with which the Government entirely agree. However, I come to Amendment 8 before Amendment 7. It the amendment is not necessary as it will be achieved comes from the noble Lord, Lord Campbell-Savours, by the current drafting of the Bill. If, under the and relates to the election of the chairman. The noble appointments process in the Bill, the Prime Minister’s Lord raises concerns about the Government’s proposals nominees are rejected by either House, the Prime for appointing the chair, arguing that the chair’s Minister will have to make another nomination or appointment should again be made with the agreement nominations after consultation with the Leader of the of the Prime Minister and the Leader of the Opposition. Opposition. This is clear from the fact that the Bill I notice that the effect of the amendment would be for requires the ISC to consist of nine members so if one the chair to be appointed by the Prime Minister and is turned down another would have to be found. I that there would be no requirement to consult the Leader hope that deals with the point made by my noble of the Opposition. So I suppose that the chances of friend Lord Lothian, who asked what would happen the noble Lord having got on to the committee or in such cases. Where we differ is that the amendment being appointed as chairman would be even more in the name of the noble Lord, Lord Butler of Brockwell, remote, but that is something that he can consider in insists that an alternative person should have to be due course. nominated and we would like to keep the flexibility As we explained earlier, we believe that the changes because there are occasions where it is possible for the that we are making to the ISC status are designed to Prime Minister to be able to renominate. It might be bring it closer to Parliament and increases public that one reached some sort of impasse in due course confidence in it. That is why the Government propose but it should be possible on occasions to renominate that the chairman of the ISC will be appointed by and that renomination might be rejected. Whatever Parliament and will report to Parliament as well as to happens, as the Bill is drafted, a ninth person would the Prime Minister. The noble Lord seemed to suggest have to be put forward. that with a new Parliament, the new Members would Turning to Amendment 6 from the noble Lord, not know each other. I suspect that with the experience Lord Campbell-Savours, he suggests that it should no of the members on that committee, as has happened in longer be necessary to consult the Prime Minister. He the past, it will normally be the case that the committee said that he would never have been appointed if it had will know who is the appropriate person as well as been left purely to my noble friend Lady Thatcher if anyone. It is quite right, therefore, that those members she had been in opposition. Obviously, if we accepted should make the appointment. 949 Justice and Security Bill [HL][9 JULY 2012] Justice and Security Bill [HL] 950

Lord King of Bridgwater: I am trying to remember for Parliament to make this decision, rather than the how many new Members came on to the committee. Prime Minister, but I note the concerns put forward by There was a big upheaval. I remember that the noble colleagues from all sides, or both sides, of the House. Lord, Lord Gilbert, for example, was a member of the I turn to Amendment 7, which presents the idea previous committee; he was whisked off to be a Minister. that, whatever happened, the chairman of the committee It was a pretty major change of cast. With great should be drawn from an opposition party. Again, my respect to my noble friend, who says that new members noble friend Lord King had some sympathy for this of the committee might be expected to know about amendment, but when one looks at the history of the these things, a number of them might have had no committee and the distinguished service of my noble previous experience whatever of the committee. friend, who served as chairman when our party was in government, and as chairman in opposition, from Lord Henley: My Lords, I will look very carefully 1994 to 2001, it is obvious that one can do it from at the point that my noble friend has made and at the either side. To make a statutory requirement that a statistics relating to 1997 in particular, which was one chairman had to come from the opposition party of those years in which there would have been a big would unnecessarily limit the available candidates for upheaval, with that particular new Parliament. Off that job. My noble friend rightly pointed to the problems the cuff, I do not know who was on the committee that might have arisen in 1997 when, after a very long and who came on, although perhaps my noble friend period in opposition, all the more senior members of can remember. But in the main, with the relatively the then opposition party going into government were experienced parliamentarians who will be on this likely to become Ministers, and there might not have committee, I think that it is well suited to making the been suitable people around. To curtail who could be decision itself. chosen would reduce unnecessarily the pool from which the appropriate chairman could be taken. Lord Campbell-Savours: You might, as a Member Having said that I would listen to comments made of Parliament who had been in the House for years on Amendment 8, proposed by the noble Lord, Lord but had no contact with intelligence, not understand Campbell-Savours, I hope that the explanations that I the vital nature of the relationship between the agencies have given on the other Amendments 5, 6 and 7, as and the chairman. It is critical to the whole operation. well as Amendment 8, will be sufficient for the noble I cannot see how someone who goes newly on to that Lord to withdraw his amendment. committee could have any understanding of that relationship. If the relationship is wrong because the Lord Butler of Brockwell: My Lords, on the basis of wrong person has been appointed, the committee could what the Minister has said, I am happy to withdraw be denied information. If the objective behind the Bill Amendment 5. is to secure more access to more operational material, we are undermining the whole arrangement. Ministers Amendment 5 withdrawn. should reconsider this point. It is all right saying that it is more democratic and accountable and that Parliament Amendments 6 to 9 not moved. is more involved—but if it does not work, do not do it. Clause 1 agreed. 5.45 pm Schedule1:TheIntelligence and Security Committee The Marquess of Lothian: My noble friend Lord King of Bridgwater was talking about the noble Lord, Lord Gilbert, leaving the committee. Between 2007 Amendment 10 and 2009, two chairmen of the committee were promoted Moved by Baroness Hamwee to being Ministers and left the committee. I wonder 10: Schedule 1, page 13, line 6, at end insert “and until how the committee would have been able to elect immediately before the first meeting of the ISC in the next successors to those two when we needed someone of parliament or 21 days after the first sitting of the next parliament, sufficient seniority to carry out that task. whichever first occurs”

Lord Henley: I think that my noble friend possibly Baroness Hamwee: My Lords, grouped with this means that two members of the committee were promoted amendment are Amendments 11 and 12 in the name to being Ministers, rather than two chairmen. of the noble Lord, Lord Campbell-Savours, on rather different points from mine. I will confine my remarks The Marquess of Lothian: No, they were two chairmen. to my amendment. Schedule 1 provides that members The first was Paul Murphy and the second was Margaret will hold office for the duration of the Parliament in Beckett. which they are appointed. I do not read later parts of the paragraph, in particular sub-paragraphs (6) and Lord Henley: Yes, my noble friend is correct in that. (7), as applying to membership. This raises two issues, I was looking at the wrong dates—he means between which I shall ask about in what is no more than a 2007 and 2009. I will obviously have to examine this probing amendment. One is whether there should be a and, as I promised my noble friend Lord King, examine committee in existence during the period when Parliament the statistics in relation to the 1997 Parliament, when is prorogued; the second is about the delay in appointing there would have been the biggest change in the members after the next Parliament has started to sit. membership, rather than the subsequent Parliaments. On the latter point, I have heard reports that some In brief, I stick to my position that it would be better Select Committees have taken a very long time to be 951 Justice and Security Bill [HL][LORDS] Justice and Security Bill [HL] 952

[BARONESS HAMWEE] Why should the Speaker be informed? This is not a established—up to six months. I am certainly not parliamentary committee; the Speaker is not a member arguing that the approach of this amendment is the of the committee and has no relationship with it. The best way of doing it. If there were to be some amendments, committee is external to Parliament, however we want the arrangements would need much more detail, but I to describe it. I cannot see any explanation why, other am worried that there would be an issue if there were a than the fact that those who devised these sections of long lacuna. I do not know whether the Minister can the Bill believe that it is necessary to have a model help the Committee regarding the position of the where they have the imprimatur of Parliament on the current committee. Are members appointed until the label. I think it is ludicrous, unnecessary, and again it appointment is terminated in a positive fashion, whether should be removed from the Bill. It is trying to lead the or not Parliament has been prorogued? Clearly, if an public to believe that this is truly some committee of MP is not re-elected, he would not be expected to Parliament. It is not, because it lacks the privileges retain membership. and the powers that a parliamentary committee has as The ISC is so important that I would be reluctant a Select Committee. That is my case. not to have some sort of formula for unbroken oversight. It could be argued, of course, that its work is largely Lord Henley: My Lords, I will return to the noble retrospective so it would not matter if there was a gap, Lord’s amendments in due course, but I will start with but I would not accept that argument. It occurs to me Amendment 10 in the name of my noble friend Lady that one could deal with continuing membership if Hamwee. This seeks, in effect, to continue the committee’s enough Members of your Lordships’ House were existence for a period of days after Dissolution until a appointed for there to be a quorum over the period of new Parliament is created. It must be remembered that Prorogation, but that is unlikely to commend itself. the absence of the ISC for that short period of Dissolution There is also the question of the period between does not mean that the agencies are unaccountable. Parliaments and any delay in appointment once a new There are other mechanisms for agency accountability, Parliament sits. I beg to move. not least through their accountability to Ministers, who obviously continue in their role throughout that Dissolution. The absence of the more considered work Lord Campbell-Savours: My Lords, I want to speak of the ISC during that relatively short period will not to Amendments 11 and 12, standing in my name. result in some sort of accountability deficit. Naturally, Amendment 11 deals with the words in Schedule 1, continuity between Parliaments is very important, but paragraph 1(2)(c), which states that, it is not necessary to have the old ISC stretch into the “a resolution for the person’s removal is passed in the House of next Parliament to achieve this. I assure my noble Parliament by virtue of which the person is a member of the ISC”. friend that we do not need legislative provision for a In other words, there has to be a resolution of Parliament new incarnation of the ISC to inherit the documents, to exclude someone from the ISC. Have those who for example, of its predecessor. Under the existing wrote this Bill thought that through? A resolution in regime this has happened without any difficulty. the House of Commons, or even in this House, would Furthermore, the provisions in sub-paragraphs (6) mean that the person who is being removed from the and (7) of paragraph 1 of Schedule 1 allow the ISC in ISC, with all the material that they have gained over a new Parliament to pick up work that was ongoing at the years on matters relating to national security and the time of Dissolution of the previous Parliament. who may well be angry with the chairman and the system, is given free rein to get up on the Floor of the I turn to the amendments of the noble Lord, Lord House of Commons and, in their defence on the back Campbell-Savours, who seems particularly worried of the resolution, say why they should not be removed about mechanisms for removing individuals from that from the Intelligence and Security Committee. This is committee. He seemed to suggest some sort of equivalent a very silly proposal. It is highly dangerous and has to the idea of the Whips giving them a bottle of clearly been worked up by someone who did not whisky and a revolver and telling them to sit quietly in understand the implications of what a resolution of a room until they have resolved matters by themselves. the House of Commons means for public debate. It I do not know if that was quite what he was suggesting, should be removed. but we believe that if Parliament appoints, it is plain How could someone be removed from the Intelligence that Parliament should also have the power to remove. and Security Committee? First, one would go to them That fits the broad thrust of what we are doing. That privately and explain the reasons why they should is the reason for the provision that the noble Lord resign. I am sure that the Whips and the system have seeks to leave out, ensuring that an ISC member can all sorts of ways for removing Members of Parliament be removed involuntarily from the committee only by without allowing them free rein to get up on the Floor virtue of a resolution passed by Parliament. Again, of the House of Commons on the back of the resolution this is an important safeguard to the ISC’s independence to defend themselves. That is my case for Amendment 11. and means that the final say on its membership is with I seek the exclusion of what I regard as a highly Parliament. irresponsible proposition. I now turn to Amendment 12, which deals with Lord Campbell-Savours: Does the Minister foresee sub-paragraph (3), which states: circumstances in which an angry young man or woman “A member of the ISC may resign at any time by notice given who was excluded from the committee on the back of to … in the case of the member who is the Chair of the ISC, the a resolution would, under privilege in the House of Speaker of the House of Parliament by virtue of which the Commons, argue a case that might even breach national person is a member of the ISC”. security? If he, or those who have devised this provision, 953 Justice and Security Bill [HL][9 JULY 2012] Justice and Security Bill [HL] 954 can foresee such circumstances, does he not think that probing amendment. I am not sure that I have probed this provision bears further responsibility, despite what quite far enough, but of course I beg leave to withdraw the noble Lord said? the amendment.

6pm Amendment 10 withdrawn. Lord Henley: My Lords, the same could apply to Amendments 11 and 12 not moved. whoever was removing that person. We are saying that Parliament should, in conjunction with the Prime Minister, have the responsibility for appointing, and Amendment 13 therefore that Parliament should therefore have the Moved by Baroness Williams of Crosby duty to remove. If we accepted the noble Lord’s 13: Schedule 1, page 14, line 3, leave out “three” and insert amendment, can he not see possible occasions where “five” there was no possibility of removing a member of the ISC from office, no matter what they had done, unless Baroness Williams of Crosby: My Lords, let me say they ceased to be a Member of their House of right away that I come to this issue completely as a Parliament—this place or another place? I do not laywoman because I have never been a member of the therefore accept the noble Lord’s amendment. Intelligence and Security Committee, I have never As regards his second amendment and the idea that been asked to be a member and I do not purport to the Speaker of either House has to be notified, I really have the arcane wisdom that is obviously involved in do not see why notifying the Speaker as a means of the intelligence committee. I speak simply as a laywoman resigning from the committee causes any problems at puzzled about this point. all. Both the Government and the committee are of I find it strange that the quorum is as low as the view that the chair should no longer be removed three—that is to say, one-third of a committee of nine. by, or required to resign by giving notice to, the Prime It puzzles me for two reasons. The first is perhaps best Minister. Again, the committee has previously been summed up by the rather agreeably brusque remarks criticised for being a creature of the Executive. If the of the noble Lord, Lord King of Bridgwater, who committee is to be a creature of, or belong to, Parliament, explained, when referring to Australia, that an “awkward it seems far more appropriate that a person should squad”had decided to take over that country’s intelligence have to resign by the means proposed rather than and security committee, and that it would therefore be tendering their resignation to the Prime Minister. open to the possibility of a small group effectively I therefore hope that my noble friend will withdraw influencing the ISC in ways that might be troubling her amendment, and I am sure that the noble Lord over the long term. will not want to move his amendments. However, I have a rather different thought in mind. Sadly, many Parliaments around us are increasingly Baroness Hamwee: My Lords, I clearly did not polarised, whereby the Government of the day and the explain my amendment adequately. My noble friend opposition find it very hard to work together. The responded on one point, the continuity of the committee, United States is just one example of that. If you have but he has not dealt with my concern about delay in in a polarised parliament or congress a party that appointing members in a new Parliament. Can he help decides it will not co-operate with other parties even the Committee on that and give any assurances? on such an important committee as an intelligence and security committee, the committee would be nullified Lord Henley: My Lords, both Houses are normally by itself and it would be hard to reach overall decisions. reasonably speedy about these matters and we will Clearly, on a matter of such importance, it is important obviously take the issue very seriously. I do not think that a consensus, if one can be found, should be sought. that there has previously been a delay in appointing There is also another objection that I feel strongly the nine members after appropriate discussions, and I about. The decision of a committee as important as cannot see that there would be any dangers of delay in the ISC should at least have to depend upon some the future, but whoever is in government will obviously level of attendance in addition to the three who may have to bear in mind the importance of these matters represent one party in order to give the committee the and ensure that a new committee is created as quickly kind of credibility that the noble Lord, Lord Campbell- as possible. Savours, and many other referred to when they were talking about public attitudes towards the ISC. I should Baroness Hamwee: My Lords, I have no idea about therefore have expected a larger quorum of at least the appointment of the ISC but I discussed this matter four or five, rather than three, as stated in the Bill. with a Member of the Commons who has considerable The main point of the amendment is to persuade experience of membership of Select Committees. It the Minister to think about whether that quorum is was from him that I heard that in one case there was a not a little too small. There is a real danger that a delay of almost six months in appointing the committee. faction could dominate the committee in a way that It is that situation that I am seeking to avoid. I do not would be completely destructive of its credibility over expect the Minister at this point to say anything other a period of time. I therefore ask him to consider this than what he has said, but the issue is serious in my issue, explain why the figure in the Bill is as low as head. three—for all I know, it always has been three and I do He said that legislation is not needed for the continuity not know if changing it would be a bad precedent—and of work of the committee or of the transfer of documents. to say whether we could have a figure more convincing I was not arguing that point at all. As I said, this is a in terms of carrying public opinion with it. 955 Justice and Security Bill [HL][LORDS] Justice and Security Bill [HL] 956

[BARONESS WILLIAMS OF CROSBY] Baroness Williams of Crosby: With great respect, I I have no wish to delay the House but I am surprised do not think that what the noble Lord, Lord King of that no other amendment has been tabled about the Bridgwater, said went very far towards supporting the size of the quorum. That may be because I am not argument that because there is such good attendance part of this wise and arcane group, and I am delighted at this extremely important committee there is a case now to see the noble Lord, Lord King of Bridgwater, for a very low quorum. On the contrary, it seems to me to whom I have just referred in relation to the quorum that Members take their duties so seriously—and rightly being as low as three, which makes it possible for an so, given the importance of the subject matter—that it awkward or fanatical club effectively to control the would not be disruptive to increase the quorum, at discussions of the ISC. The noble Lord quoted the least to some extent, from the present three. case of Australia, as regards the danger that the committee, Again with great respect, the fact that around 5% of if there were a low quorum, could be dominated by a the possible attendance of the House of Lords is small faction or extreme group of some kind. I hope present at this particular discussion is not really the that he will not mind that I referred to him. I beg to point because, of course, noble Lords attend when move. they are expert or knowledgeable on a particular subject and do not come when this is not the case. In the case Lord Henley: My Lords, I start by being faintly of the Intelligence and Security Committee, one assumes flippant. I remind my noble friend that the quorum for from its very careful appointments process that most this House and this Committee is only three—one to members are people with a strong commitment and speak, one to listen and one to sit either in the Chair very considerable knowledge of the fields in which or on the Woolsack. Even with the crowded House they operate. that we have at the moment, we represent probably well below a third or even a tenth of the membership Lord Henley: My Lords, I hope my noble friend of the House. I should also remind my noble friend heard in my opening remarks that I was being faintly that my understanding is that it is the practice of most flippant when talking about this House. I agree that Select Committees to have a quorum of three or a this is a very important committee. I am very happy quarter of the committee’s membership. Three is that attendance is well above its quorum number—that therefore the number that we have picked. Bearing in it is always fully quorate. However, I do not think it is mind that the ISC is a relatively small committee with necessary to restrict it in such a manner by bringing in a membership of only nine, three represents a third of an artificially high quorum, which would be completely the membership. unlike all other committees. I think that three out of Having said that, one should take my noble friend’s nine is a perfectly effective number and I hope, therefore, amendment seriously but we have not, as far as I am that my noble friend will feel able to withdraw her aware, had any problems with the quorum. A quorum amendment. of five might be overly restrictive, particularly if you take the view that the function of a quorum should be Baroness Williams of Crosby: I beg leave to withdraw to provide protection against the possibility of a small the amendment in the knowledge that I shall certainly number of persons on a body taking actions or decisions return to this issue on Report. that could be unrepresentative of that body as a whole. Amendment 13 withdrawn. Lord King of Bridgwater: I think it fair to say that this is a Committee that, quite exceptionally, has a Amendment 14 remarkably high attendance level, and this is something Moved by Baroness Hamwee we are quite proud of and which, I am sure, has 14: Schedule 1, page 14, line 3, at end insert— continued. I do not ever recall any problem about a “(a) the ISC shall meet in public save when it determines quorum. In fact, I recall very few occasions when the that members of the public shall be excluded, whole Committee was not on parade and, as anyone (b) a determination under paragraph (a) may be made prior familiar with House of Commons Select Committees to the meeting to which it applies and may apply to more will know, that is often far from being the case. than one meeting.”

Lord Henley: I am very grateful to my noble friend Baroness Hamwee: My Lords, I shall speak also to for giving me that assurance. I remember when, many Amendment 15 as well as to Amendment 17, which years ago, I was first put on a Committee—the Joint was tabled by the noble Baroness, Lady Smith of Committee on Statutory Instruments, possibly the Basildon, and has been grouped with my amendments outer Siberia of committees. I think there were seven because we cover very similar ground. Indeed, we have Members from each House and a quorum of two from covered a fair bit of the ground already during this each House. On a committee of that sort it was often afternoon’s discussions, including the subjects of open quite difficult to reach the quorum of both Houses, meetings, question times, public hearings and so on. I but some of us manfully attended week in, week out, am, of course, not so naive as to think that the ISC to preserve it. I am very grateful to my noble friend for needs to meet only occasionally in closed session, but I making the more serious point that the Committee do think it a good discipline to ask oneself regarding does, in the main, have not just a quorum but is every meeting whether it needs to be closed. I am normally fully attended by virtually all Members; that therefore proposing that open discussions be the default really answers the points of the noble Baroness, Lady arrangement. It is also important to justify why a Williams. meeting is closed, if it is, and to that extent I think that 957 Justice and Security Bill [HL][9 JULY 2012] Justice and Security Bill [HL] 958

Amendment 17 asks the right sort of question, although services. I think that that has been quite clear in the I would have put it differently, saying that “proceedings early amendments to the structure and kind of committee should be public unless” rather than “private if”. that we are seeking. As has also been previously However, I think that these are all probing amendments. mentioned, the ISC itself has admitted that reform is needed urgently. One of the areas of reform that it 6.15 pm stresses is the need to improve public confidence in its As I see it, the role of the ISC is oversight on behalf work and also in its ability to function as a strong and of the public. By their nature, the agencies and government independent check on the work of the intelligence departments dealing with security matters are secretive, community. Just as we would say that justice does not and one understands their concern that secrecy should just need to be done, it must also be seen to be done, go hand in hand with security. However, it can be very the scrutiny role of independent checks and balances easy to get sucked into a cosy, almost co-dependent does not just have to be done, it must also be seen to be relationship in the work of any organisation. I do not done in order to create public confidence. I have to say want to suggest that this is something that might only to the Minister that, looking at the legislation before happen in this case, nor do I want to suggest that it has us, I do not think that the Government have given happened. I have no way of knowing whether or not enough thought to the role that visibility can play in that is the case. Knowing something of the members building up that kind of public confidence. of the committee, I am sure that they are too strong- We have heard mixed responses to the public hearings minded to let this happen. However, I have seen it held in the United States by the Senate Select Committee happen in other contexts, where a committee, particularly on Intelligence and the House Permanent Select a chair, charged with scrutiny of an organisation becomes Committee on Intelligence with the heads of the so attached to that organisation that he or she tends to intelligence community. Those hearings in public defend it rather than look critically at it. session—many of them televised—are a significant aspect of this issue and have produced some important The Marquess of Lothian: I am grateful to the noble public admissions by the agencies’ heads. However, I Baroness for giving way. Could she perhaps outline to think that there is a risk of them being seen as stage- the House what sort of meetings of this committee managed, as we heard earlier from the noble Marquess, should be held in public? Lord Lothian. We have to recognise that a large part of the committee’s Baroness Hamwee: I am saying that the committee work involves hearing evidence of a highly sensitive should consider whether there is a reason not to hold a nature that cannot safely be publicly disclosed. However, meeting in public. My approach to this would be to it is important to move towards a system where public say that each move into closed session should be hearings are considered not automatic but more routine. considered quite positively. I look at it the other way I do not go quite as far as the noble Baroness, Lady round; it is a different philosophy and I accept that. Hamwee, although I think that we are going in the I have provided in Amendment 14—these are probing same direction, as I do believe that such hearings amendments—that a determination could be made to should be accepted more and be more routine. Therefore, apply to more than one meeting. I cannot believe, Amendment 17 would expressly provide for the ISC to given the committee’s obligation to the public, that hold public hearings where it is judged that there is no every meeting should be held privately unless there is a significant risk of the disclosure of sensitive information, good reason to hold it in public. As I say, it is a as defined by the Bill, or information that risks difference in philosophy. Amendment 14 is, as I say, undermining the interests of national security. The probing, and I accept that a decision could be taken to noble Lord keeps chastising me for the wording of cover more than one meeting. the amendment but I hope that he understands the Amendment 15 is rather different. I think that there theme that we are putting forward here. In effect, is a place for something like a public question time. the amendment sets the same threshold for judging the The noble Baroness’s amendment suggests annual hearings risk of the disclosure of information in public hearings with the heads of the agencies and the Secretary of as the Bill does for the disclosure of information to the State, and I think that that is a good idea. In both of committee. our amendments, we suggest that the public should Perhaps a more appropriate set of conditions could have a hand in setting the agenda of the committee. I be used here to ensure that public hearings do not lead beg to move. to the jeopardising of our national security or of the work of the intelligence services. That is something Baroness Smith of Basildon: My Lords, I shall speak that I would be happy to discuss. However, it is the to Amendment 17 and then perhaps say something principle of routine public hearings that we are trying about Amendment 15. The noble Baroness, Lady to establish with this amendment. Similarly, annual Hamwee, might have misunderstood our intention in public hearings with the heads of the intelligence Amendment 17, because I think that our intention services, as provided for in Amendment 17, would, as differs very much from hers in Amendment 15. they do in the United States, send a very public signal Amendment 17 is essentially, as she said, intended to about the accountability of our intelligence community probe the idea of public hearings. This idea has had a to Parliament through the ISC. mixed response in your Lordships’ House in both today’s debate and earlier debates. What is vitally There is perhaps just a slight difference of emphasis important is that the public should have confidence in in our amendment compared with the noble Baroness’s the system of oversight of our intelligence and security Amendment 14, in that we do not think that public 959 Justice and Security Bill [HL][LORDS] Justice and Security Bill [HL] 960

[BARONESS SMITH OF BASILDON] reasons of national security, might send a hare running hearings should be automatic. However, I am slightly in the media which gets completely out of control. curious about Amendment 15 and the suggestion of a Although I accept that there are conditions in which public question time. I wonder whether that would the public or journalists should be able to ask questions, change the role of the ISC. It seems to me that its role we have to be very careful about witnesses who might is very specific—that of oversight of the intelligence be called before the committee in those circumstances community and intelligence agencies—and I am not but who might feel that they cannot answers the sure what would be gained by putting its members into questions in open session. The reason that parliamentary the public eye, with them being questioned by the Select Committees meet in private is to avoid those public, as I think is the noble Baroness’s intention. I very problems. should have thought that public confidence would be Therefore, again, I give qualified support but I achieved by members of the Intelligence and Security think that there would be certain conditions under Committee being seen to do their job robustly and which it would be quite wrong for the committee to ensuring proper scrutiny and oversight of the intelligence meet in public. community. This seems to be more about oversight and scrutiny of the intelligence committee by the The Marquess of Lothian: My Lords, perhaps I may public, although I should have thought that that was a intervene briefly to say that there is nothing to prevent job for Parliament rather than for the public. I should the ISC in its present form holding public hearings. be interested to hear the noble Lord’s comments on Indeed, the Prime Minister in the previous Government, the amendments. Gordon Brown, called on the committee to hold public hearings, and we have been looking very closely at Lord Skelmersdale: My Lords, I wish to say a tiny ways in which this can be done. Therefore, there is word on Amendment 17. I note that it begins: nothing in Amendment 17 that I find very difficult “The ISC may decide to hold some of its proceedings in because, first, there is the principle and, secondly, the public, subject to sub-paragraph (2)”, restrictions on it which would be required for any and so on. I ask the Minister whether there is anything public hearing. in the Bill to prevent the ISC meeting in public, should However, following on from what the noble Lord, it so wish. Lord Campbell-Savours, has just said, the first point to bear in mind is that a public hearing should not end Lord Campbell-Savours: My Lords, perhaps I may up as a farce in which, because of the subject matter, intervene briefly. Amendment 14 says that, every significant question that is asked is answered by “the ISC shall meet in public save when it determines that members of the public shall be excluded”. the famous phrase, “I can’t answer that question”. The credibility of the committee would suffer very quickly I think that that would put the fear of God into if we went down that road. Secondly, it has to be an the agencies and I am afraid it would create a climate honest process. We cannot have a subject which is so of suspicion which the committee does not deserve. I anodyne and so completely rehearsed that in the end am not saying that it should not meet in public on the public see through it. That, again, would be to the occasion, as I shall explain in a minute, but putting disadvantage of the committee. words such as that into the Bill would be very unpopular within the agency. It needs to have confidence that We are looking closely, whether under this Bill or Parliament is able to handle the material with the even before the Bill goes through, at whether we can necessary safeguards. identify subjects that are of genuine public interest and where the agencies or the sponsoring Ministers Amendment 15 says: will feel able to answer at least the majority of the “The ISC shall not less than once in each calendar year hold a questions. We are looking at holding a public hearing public question time for which it shall determine applicable procedures”. in which the members of the committee, in its normal In a curious way, there may be something in that form, ask the questions and the answers are given. I amendment. I remember—and the noble Lord, Lord think that that is slightly different from the sort of King of Bridgwater, may recall—that we did occasionally press conference to which the noble Lord, Lord meet in public. After the Mitrokhin inquiry, we invited Campbell-Savours, referred, which we have also journalists in to ask us questions. Therefore, in a way, undertaken on a number of occasions. This would be the structure is there to do it. The question is: what is a case of the committee asking questions of the agencies, on the agenda? I can foresee circumstances in which which is, after all, the true role of the committee. there may well be an item of some controversy or just a general report where the committee may want to 6.30 pm meet in public, and the public—basically, journalists—ask Lord King of Bridgwater: My Lords, I shall take questions. However, Ministers may want to ponder together all the amendments that deal with how the ISC over the exact wording of the amendment. can interface more clearly with the public. I listened Finally, Amendment 17 says: with interest to the noble Baroness, Lady Hamwee, “The ISC may decide to hold some of its proceedings in and I wondered whether her view on the meetings in public, subject to sub-paragraph (2) … The ISC may not hold public and the hearings that might subsequently be public hearings under sub-paragraph (1) if it might lead to the held in public, which is raised in the amendment of the disclosure of”. noble Baroness, Lady Smith of Basildon, is that those The problem is that if members of the agencies, or would be televised as well. This is an option in Select indeed Ministers, are brought in as witnesses to answer Committees, and hearings that are held in public will questions, their refusal to answer, for perfectly legitimate presumably be open to television coverage. 961 Justice and Security Bill [HL][9 JULY 2012] Justice and Security Bill [HL] 962

Baroness Smith of Basildon: My Lords, I did not good at bringing a more public face to the essential hear what the noble Lord said as he turned away from activities of MI5. I wondered about the sort of subjects the microphone. Will the noble Lord repeat what his on which we could see the committee in action. One of concern was because we missed it on these Benches? I them might be recruitment for the Security Service: did not hear what his objection was. the issue of whether it is recruited from too narrow a sector of society, the efforts that the agency is making to recruit across a wider section of community, the Lord King of Bridgwater: The point was that it may importance of diversity, the importance of access to a be decided to hold some proceedings in public which wider range of languages and of being involved and presumably would be televised as well. The noble recruiting from all sections of our multicultural society Lord, Lord Campbell-Savours, referred to a point that which is so important at the present time. That is the I was also going to refer to. The annual appearance of sort of issue—I got a small nod as I said this—that I what was previously the ISC was the publication of thought could be handled in a public hearing. the annual report. We used to have a press conference after that and it was televised and open to all the I would like to have had a public hearing on the journalists. Of course there could be an inquiry of one accommodation arrangements of GCHQ and our sort or another that came outside the annual cycle. criticisms of the control of that project. This was one The classic illustration of that was Mr Mitrokhin and of the biggest scandals that we uncovered during our the Mitrokhin report. I have a copy of the press time in Government, where the estimate for the release that we put out on 13 June 2000 on the Mitrokhin expenditure on the new facility in Cheltenham, the report. donut, which is now well photographed, rocketed beyond an initial brave estimate of £20 million and It is interesting about pushing back the boundaries. ended up closer to £220 million. Issues of accommodation This is pervasive and accepted by the Government in are perhaps relevant, although you can get bogged the whole concept of the initial clauses of this Bill down in all sorts of tabloid sensations. One of the on the wider remit that has grown for the ISC. The accommodation issues was the cost of the trees committee agreed to conduct this inquiry on on the balcony of SIS and who was paying for those. the understanding that it would have access to all The committee has to be careful not to get bogged the relevant documents, including advice given to down—we always took this view—in chasing the Ministers as well as evidence from key witnesses. We individual tabloid shock-horror story of the week and were given this access. This was never included in the concentrate instead on the issues that are of fundamental original Bill and was an illustration of the way in importance. which the committee gradually covered a wider area and had greater access. The idea that the committee There is a real difficulty in trying to say that in hides away in private and is not prepared to appear in principle the hearings should be in public. My noble public is not right. friend Lord Lothian illustrated to those who were not at the earlier session what happened with the Senate Amendment 17, in the name of the noble Baroness Intelligence Committee and how it was a put-up job and her colleagues on the opposition Front Bench, with planted questions and planted answers because states that the committee, that was all it felt safe to handle in public. I do not “may decide to hold some of its proceedings in public, subject to think that helps credibility and it looks as though the sub-paragraph (2)”. committee is just part of the conspiracy. Sub-paragraph (2) states: I do not support the idea that in principle there “The ISC may not hold public hearings … if it might lead to should be public hearings and that the committee the disclosure of— should explain why if they are not, which is the theme (a) sensitive information”. of these amendments. Public confidence is best That is the whole problem. As the noble Lord, Lord achieved by taking the opportunity where possible for Gilbert, who has now joined us as a former member of a public hearing and showing the sort of way that the the committee, said, if you have an effective committee committee operates but not having it as a presumption with effective questioning, where may it lead? If you in every case. are discussing serious issues, you cannot be sure at the start of it. You may have started out with a wonderful Baroness Manningham-Buller: I am pleased to hear public agenda but things may emerge in the evidence from the noble Marquess, Lord Lothian, that the that make it thoroughly undesirable at that stage that committee is currently thinking of whether there are it is held in public. I was trying to think what the issues ways that some things could be held in public because are because I was myself in favour of trying to see I think it is the case that there are issues—the noble whether the committee could have the occasional public Lord, Lord King of Bridgwater, suggested some—that meeting, not as an obligation and having to explain could conceivably be considered in public without any each time why it was not having it in public, but just to danger to national security. Having said that, I would show that there are issues, that it is an effective committee also say that, whenever I gave evidence to the committee, and that it could hold the heads of the agencies to on practically all occasions I was discussing secret account. information and very often top secret information. One of the problems when we started was that the Therefore, the time that you could have an open heads of the agencies did not always want to appear in hearing would be very restricted indeed. On whether public and have their faces too easily recognisable. this would improve public confidence, it would be That situation changed and the noble Baroness, Lady narrow so it might or might not. However, if the Manningham-Buller, was an exception. She was extremely committee is thinking that way, that is welcome. 963 Justice and Security Bill [HL][LORDS] Justice and Security Bill [HL] 964

Lord Henley: My Lords, we have three amendments performs. However, the Government have concerns in this group, all of which are concerned with the ISC that a question time of the nature suggested by meeting in public and how that should operate. I Amendment 15 would pose significant risks and would appreciate the concerns behind the amendments but be ultimately unworkable. Again we make it clear that similarly I have a number of concerns with the idea of the committee has access to extremely sensitive intelligence creating any formal power and, in the case of annual information, public disclosure of which could cause hearings, a duty to hold public hearings. I am sympathetic significant damage to national security. Therefore, the to the noises made by the noble Lord, Lord Campbell- way it operates will inevitably be different from that of Savours, when in relation to Amendment 14 he suggested departmental Select Committees, and it must not it might put the fear of God into some of the agencies necessarily be conducted in public. I hope that that involved to see such an amendment down. explanation will satisfy my noble friend Lady Hamwee Perhaps I may go back through the history of these on her Amendments 14 and 15. matters to set things in context. In The Governance of On Amendment 17, I appreciate that the noble Britain Green Paper of 2007, a series of reform proposals Baroness, Lady Smith, was probing. The answers that were made aimed at bringing the ISC as far as possible I gave on what we want to do following the 2007 in line with other Select Committees. One proposal Green Paper and the more recent one indicate that was for some hearings of the ISC to be structured to where possible we would like openness in order to allow unclassified evidence to be heard in open session. allow public confidence in the committee to be maintained However, as Members of the Committee will know, and enhanced. However, it is not necessary to go down those sessions did not happen with any frequency. As the route suggested by the noble Baroness in her my noble friend Lord Lothian pointed out, the committee amendment. As I made clear, it is available to the ISC has the power to have open sessions if it so wishes. to do that should it so wish. Of course, we will Building on this, the Justice and Security Green continue to have discussions with the committee about Paper stated that while the ISC’s meetings would still the most appropriate manner in which to deal with as a rule have to take place in private, both the that. I hope that my noble friend will feel able to Government and the committee were committed to withdraw Amendment 14. the concept of public evidence sessions where these could be held without compromising national security 6.45 pm or the safety of individuals. The Bill does not need to include a specific provision to enable public evidence Baroness Hamwee: My Lords, I am grateful for that sessions. Both the existing ISC, created by the 1994 Act, response and for the comments made around the and the ISC that is provided for in the Bill have the Committee. Of course I accept that there is nothing to power to determine their own procedures. That is prevent public proceedings, and what we have heard sufficient for these purposes. In this way, there is very about the direction in which the committee is moving little difference between the position in the Bill and is very welcome. However, I felt that it was important that proposed by the noble Baroness, and for that to raise the issue in order to indicate what Parliament matter by Amendment 17. The crucial difference from will expect in future. On the query about televising Amendment 14 is that we do not start with the default proceedings, I suppose that it is almost inevitable in position that sessions must be in public unless certain this day and age. If proceedings are to be in public, conditions are met. what are the mechanisms for making them so? However, There are very significant practical issues that must I accept the implicit point that that raises issues. be addressed before public evidence sessions can take On the issue of question time, as the Minister said, place. As I am sure the Committee will appreciate, there are a number of models for questioning the introducing public evidence sessions for a committee committee or the agencies. I am not entirely sure that that will in the vast majority of its work be concerned there is an absolutely clear demarcation line between with very sensitive and highly classified information the two. One can imagine members of the public will be very challenging. The Government are in discussion asking committee members why they had not asked with the committee and remain committed to making about something. Perhaps it is a muddy area. The title this work in practice—for instance, on issues such as “question time” can mean different things to different appropriate subject matter, timing and having appropriate people. I accept that it might raise the wrong expectations. safeguards against unauthorised disclosure of sensitive Nevertheless, it is a flavour of where work should be information. I have already argued that the work of heading. the ISC must be done largely in private. As only a very We have heard examples of possible subjects that small amount of the evidence that it hears, whether might be covered. Some—perhaps not all—financial written or oral, is unclassified, the default position arrangements of the agencies, along with some aspects suggested in Amendment 14 that it should meet in of the administration, might also be dealt with in public is neither appropriate nor practical. public. The example of recruitment was very interesting. On Amendment 15 there are a number of different That would be a matter of broad public interest and I models for what could be considered a public question hope that it could be pursued. Of course, planted time. In one model, members of the public could ask questions and answers are not enough, but are they questions directly to members of the ISC on their not sometimes better than nothing? People will have oversight role. That format is sometimes used in local different views on that. government. Naturally it is in everyone’s interests that I raise these issues because they are properly covered there is an understanding among members of the in debate at this stage of the Bill. I am not sure public of the ISC and the valuable function that it whether we will take them further. The issue remains 965 Justice and Security Bill [HL][9 JULY 2012] Justice and Security Bill [HL] 966 very live, but whether it is an issue for legislation is carry out this function, which in many ways I have perhaps a different matter. I beg leave to withdraw the great sympathy with. If we had had the opportunity amendment. when I was a member of the committee to interview proposed heads of the agencies prior to them taking Amendment 14 withdrawn. over responsibility for the agencies, it would have been Amendment 15 not moved. helpful to the committee. In so far as it had not been in public, no damage would have been done. Certainly we would have been able to make our concerns or Amendment 16 satisfaction known to the agency, and during the Moved by Baroness Hamwee questioning of the proposed appointee we could have 16: Schedule 1, page 14, line 3, at end insert— raised subjects that would have given us, certainly in “( ) The ISC may consider the proposed appointment of the one case, a little more reassurance than perhaps I felt I following including by questioning the prospective appointee at a had when the particular person was appointed. I think meeting of the ISC— there is merit in this amendment as long as the hearings (i) the Head of the Security Service; are in private. (ii) the Head of the Secret Intelligence Service; (iii) the Head of the Government Communication Baroness Smith of Basildon: My Lords, the issues Headquarters; and that have been raised are the very ones that I listened (iv) such other persons as the Prime Minister may to the noble Baroness to hear as she moved her direct.” amendment and to try to see what the aim was. Her Baroness Hamwee: My Lords, if I have not caused amendment does not mention public or private, although apoplexy so far, I will with this amendment. I have in her original comments she spoke of public hearings. absolutely no expectation that the Government will be It was not until the noble Lord, Lord King of Bridgwater, minded to accept the notion of confirmatory hearings. intervened that she conceded that there could be private However, I tabled the amendment because we do not hearings, which have more value than a public hearing have to go the way of the United States. There are would. I am only wiser and very interested to hear more and more examples in the UK of confirmatory what the Minister has to say. I assume that he will hearings. They do not necessarily come with a veto—in accept the principle. My favourite bedtime reading, fact, there are probably no hearings where a veto is the coalition agreement, includes a specific commitment granted to the examining committee. However, holding to strengthen the powers of Select Committees to sessions where a nominee for a position can be questioned scrutinise major public appointments. I should have so that the public know what they are getting in the thought that this comes under the remit of a major prospective appointee is part of opening up services to public appointment. The noble Baroness might have public understanding as well as addressing issues of done the House a service to tease out whether the accountability. Government intend to honour that part of the coalition agreement. I mentioned the Greater London Authority earlier. I will not draw too many comparisons between the organisations, but confirmatory hearings of mayoral Lord Henley: The noble Baroness is right: there was appointments were introduced just after I stood down that commitment. She also knows that pre-appointment from the GLA. I watched one of them on what I hearings are a relatively new phenomenon. Since 2008, believe is called a narrowcast on the web and it was Select Committees have conducted pre-appointment absolutely fascinating—not just the questions but the hearings for a number of posts, and there is Cabinet whole experience. One could tell so much from the Office guidance on the process and on who should be body language of the person who was being questioned. heard. The important thing to note about the list of I thought that it was a very useful session. This is not pre-appointment posts is that the posts concern public even in hope, let alone expectation, but I do not want bodies, such as the chair of Ofcom and the chair of to think that we have to do things exactly as the the Social Security Advisory Committee. The most United States does or discard them because of that recent one that my department had an interest in was experience. Her Majesty’s Inspectorate of Constabulary. There is no suggestion that the pre-appointment process has Lord King of Bridgwater: I have a point of clarification. been used to appoint civil servants. Indeed, the noble Is the noble Baroness proposing that these hearings Baroness is not suggesting that before appointment should be in public or not? each Permanent Secretary should go before the appropriate Select Committee. Baroness Hamwee: I suppose it had been in my The heads of the intelligence and security agencies mind for the reason that I gave about public are Permanent Secretary-level civil servants. understanding. The noble Lord raises a very interesting point as to whether one should look at this as not a Baroness Manningham-Buller: They are not civil public exercise. That would raise different and very servants; they are Crown servants. interesting issues, and perhaps fruitful ones. I am sorry I did not go there in my comments. I beg to move. Lord Henley: I stand corrected by the noble Baroness, but it makes little odds; Crown servants are in fact at Lord Campbell-Savours: I am glad the noble Baroness Permanent Secretary-level, although I accept that rebuke. did not stipulate that the hearings should be in public The recruitment process is therefore expected to because that would make it quite impossible for us to follow the process for the appointment of Crown 967 Justice and Security Bill [HL][LORDS] Justice and Security Bill [HL] 968

[LORD HENLEY] Baroness Hamwee: My Lords, Amendment 18, in servants of such seniority. I could go through the my name and that of my noble friend Lord Thomas, is details of the Constitutional Reform and Governance the first in quite a large group. We have other amendments Act, but I can give an assurance that they are exempt in the group, as does the noble Lord, Lord Campbell- from that. They will necessarily follow the spirit of the Savours, and the noble Baroness, Lady Smith, and civil servant recruitment principles, which we consider they are all about access to information. to be the best process. We do not consider it to be the Amendment 18 would provide for advisers to the appropriate mechanism for recruitment to public bodies, ISC with the right security clearance to be able to have whether the process is conducted in public or in private. access to information. It was suggested to me by It might be appropriate for the other posts that I someone who was at one point a member of the ISC mentioned but not for the public bodies that we are and who thought that it would make the process a talking about. great deal easier if some of the committee’s own advisers had that clearance and could go into the Lord King of Bridgwater: I apologise to the Minister agencies and do the work that was necessary. That for intervening, as he has been extremely co-operative goes to the independence of the ISC. with the Committee in every respect. It seems to me The other amendments are all about accessing that, on the whole principle of this pre-appointment information when it is a necessity. If the committee is hearing—we left open the question about public or to carry out its proper role of scrutiny and to deter private hearings—it is an important asset for the person poor practice effectively, it should see what it wants, about to be appointed if he has a successful hearing not what is given. Obviously others will have different before the committee. It reinforces his position at the views about that. start of his work if the principle is accepted elsewhere. Paragraph 3(1)(b) allows the Secretary of State to We then have the argument about Crown servants determine whether information is not to be disclosed and their exact role, and we go through a range of on one of the bases set out in paragraph 3(3), one of bodies, including Ofcom. I do not even know what which is that the information is sensitive as defined in Ofcom’s position is—whether it is in government or paragraph 4. I simply ask whether it is constitutionally outside it—and exactly what its relationship is. However, appropriate for the Government to withhold access to I think that the principle of holding hearings has documents which the committee considers necessary merit, and—to use a phrase I have used before—I have to hold the Government to account. A much happier a feeling that they will come. situation would be to provide information but to be confident in the appointees and in restrictions on their using it. However, access to information is the point Lord Henley: I am afraid that on this occasion I from which I start. I beg to move. have to disagree with my noble friend. There it is quite a distinction between Her Majesty’s Inspectorate of Constabulary or the chair of the Social Security Advisory 7pm Service on the one hand and, for that matter, the Permanent Secretary of the Home Office or the Permanent Lord Thomas of Gresford: My Lords, perhaps I may Secretary of any other department on the other. We follow and develop the argument made by my noble suggest that the heads of the intelligence and security friend Lady Hamwee in her final remarks and deal agencies fit in more appropriately with that later group with some of the important features of the Bill. rather than with the former group. There is a constitutional principle that the Executive and every agency of government are Baroness Hamwee: My Lords, I am not clear whether accountable to Parliament. Parliament is supreme, the Minister is saying that they fit in with that group not the Executive, and it is to Parliament that or that they are exempt under the legislation, which he accountability must be made. If the ISC is to operate mentioned. Either way, process moves forward. It is effectively and to act as a deterrent against malpractice, not so very long ago that we did not have the Nolan it should have the power to examine any document principles, but they are completely accepted now. I, that is held by the security services. As my noble friend too, think that this may come, although it may not said, the ISC members will be nominated by the Prime come in the Justice and Security Act 2012. However, Minister and approved by Parliament and, presumably, we are in Committee, and I beg leave to withdraw the will be security-cleared to the necessary level. If they amendment. are to be limited in the documents that they can inspect by reason of the diktat of a Minister, as Amendment 16 withdrawn. advised by the security services, there is a breach of constitutional principle. It is not appropriate for there Amendment 17 not moved. to be legislation to prevent government accountability to Parliament by allowing Ministers to operate in that way. Amendment 18 Under the format of paragraph 3 of Schedule 1, the Moved by Baroness Hamwee Director-General of the Security Service and others, if 18: Schedule 1, page 14, line 11, at end insert— asked by the ISC to disclose any information, can “( ) arrange for it to be made available to advisers to the ISC arrange for it to be made available. However, they can who are the subject of specific security clearance who also inform the ISC that the information cannot be may then advise the ISC with regard to the information disclosed because the Secretary of State has decided including providing written material in redacted form,” that it should not be disclosed—the decision of the 969 Justice and Security Bill [HL][9 JULY 2012] Justice and Security Bill [HL] 970

Secretary of State, presumably, being advised by the such circumstances are. I have often wondered what security services. Amendment 19 seeks to delete sub- would be the circumstances in which Ministers would paragraph (1)(b). take that action. Perhaps the Minister will give an If the ISC asks a government department or any explanation today. part of it to disclose information, the relevant Minister The noble Lord, Lord Thomas of Gresford, referred of the Crown—who, under sub-paragraph (5), may be to decisions being taken on a whim. Now that that any Minister—must arrange for that information to provision in paragraph 3(3) is be enshrined in the Bill be made available in accordance with the memorandum and subsequently become law, we need something of understanding or, as the Bill stands, inform the ISC more substantial so that we know exactly what is that the information cannot be disclosed because the intended by it. Minister of the Crown has decided that it should not I turn now to the part of the Bill that really worries be disclosed. Therefore Amendment 20 seeks to delete me—the phrase, sub-paragraph (2)(b) “relevant Minister of the Crown”. Under sub-paragraph (3), the Minister of the As the noble Lord, Lord Thomas of Gresford, said, Crown can take the decision not to disclose only if we are not given an indication of who is to be involved. he considers that it is sensitive information and Are we talking about Parliamentary Under-Secretaries information which, in the interests of national security, or Ministers of State? The noble Lord, Lord Henley, should not be disclosed to the ISC. So, again, presumably is, I understand, a Parliamentary Under-Secretary. he is acting on the advice of the security services in coming to the conclusion as to whether it is sensitive information or as to what the interests of national Lord Henley: A Minister of State. security are. Sub-paragraph (3)(b) of paragraph 3 states: Lord Campbell-Savours: He is a Minister of State. Forgive me. However, the point is that for a long time “it is information of such a nature that, if the Minister were requested to produce it before a Departmental Select Committee he was a Parliamentary Under-Secretary and, in my of the House of Commons, the Minister would consider (on view, if he had been in the House of Commons he grounds which were not limited to national security)”. would have been in the Cabinet. We are not merely So, presumably, on the Minister’s say-so and without talking about the quality of Ministers that we have advice from the security services, it would be proper here in the House of Lords; we are talking about some for that information not to be released. of the Ministers that we see at the Dispatch Box in the House of Commons. It would be an error of judgment The Secretary of State or Minister of the Crown to include in the Bill a provision which would give can decide, either on the advice of the security services some of these Parliamentary Under-Secretaries in the or on their own initiative, that the ISC is not very House of Commons the power to block information important and they can just say, “No, it cannot see being brought before the ISC. However, that is what I this, even if it wants to. It will have to come to its understand the Bill means to do. It means that any conclusions simply on the documentation that I”—the Minister, in any department, in any circumstances, Minister, acting on the advice of the security services— could decide that information was not to be made “think it should see”. Is that what the Bill is about? Is available to the committee. that its purpose? Are we debating the functions, procedures and the setting up of the ISC so that a Minister of the Why do I have concerns that go up even as far as Crown, advised by the security services, can withhold Secretaries of State? I referred at Second Reading to a information from it? It is constitutionally inappropriate particular incident in the committee when the late and I firmly urge these amendments upon the Robin Cook—I am sorry that he is not here to answer Government. me today—was, in my view, very obstructive before the Intelligence and Security Committee in that he did not want to have certain information brought before Lord Campbell-Savours: My Lords, I have great that committee. There was quite a discussion in the sympathy with the speech of the noble Lord, Lord committee about the fact that he was resisting having Thomas of Gresford. It addresses a fundamental flaw that information made available. I quoted the example in the Bill. of the noble Lord, Lord Heseltine, for whom I have I shall speak to Amendments 22 and 26. great regard. Imagine the mindset of the noble Lord, Amendment 22 deals with sub-paragraph (3), which Lord Heseltine, in the early 1980s when he had it in for states: CND and all that, and giving him the responsibility or the power to decide, on his personal consideration, “AMinister of the Crown may decide under sub-paragraph (1)(b) … that information should not be disclosed only if the Minister that this information, which the ISC wanted, should considers that”— be denied to the Select Committee. I believe that it is as the noble Lord, Lord Thomas of Gresford, said— wrong that Ministers should be in that position. Indeed, as I said at Second Reading, I would trust the heads of “(b) it is information of such a nature that, if the Minister were the agencies more than I trust Ministers. requested to produce it before a Departmental Select Committee of the House of Commons, the Minister would consider (on For a start, many Ministers lack confidence in this grounds which were not limited to national security) it proper not area. As they would have very little experience of how to do so”. the system works and what goes on inside the agencies, If I remember rightly, that is currently the position their experience of the agencies may be far less that under the present ISC, notwithstanding the statement that of even members of the committee, yet they are to in the Bill. I have not always understood exactly what be given the right to decide whether information is to 971 Justice and Security Bill [HL][LORDS] Justice and Security Bill [HL] 972

[LORD CAMPBELL-SAVOURS] 7.15 pm be blocked. It might well be that a junior Minister, lacking confidence, would be unwilling to take a Lord King of Bridgwater: I am getting very flattered decision to provide information, or allow information by the noble Lord, Lord Campbell-Savours. I think to be provided, for career considerations. He or she that there is a real problem in this area and I do not might worry that by providing that information and quite understand the amendments tabled here. I certainly taking that risk, because they had not had that do not understand this business in the Bill about what experience, they might be damaging their own career would be before a departmental Select Committee, prospects. They may well simply be unable to quantify “on grounds that were not limited to national security”. the risk on the basis of their very limited experience That is the point that the noble Lord, Lord Thomas of and, furthermore, some Ministers might simply make Gresford, made and I hope that the Minister will a straight political judgment about whether information clarify that point to an extent. should be made available to the committee. That is the I think that there is a point, though it may seem a very area about which I think considerations should bit extreme, in what the noble Lord, Lord Campbell- not be made. Savours, said. It may strike fear through all proper I have concerns and I do not believe that Ministers government structures that the suggestion should be should be involved in this process at all. We go back to left to the chairman of the committee. I think it is true my very controversial model, which I put to the House that it is not just the chairman of the committee: at Second Reading—I put it in the same way that I put initially, it is the heads of the agencies: they are the the argument for Select Committee status in 1998 and people who decide whether they wish to withhold 1999. At that time it was simply ruled out of the information, then they have to make their case to the question, so I recognise that it will probably be regarded chairman. as out of the question today, but I put forward the This takes us into quite interesting country, because model that I put forward at Second Reading. First, the one of the arguments used in the past is, to whom are ISC should have Select Committee status. Secondly, the heads of the agencies responsible? The answer is the chair should be decided by the approval of the that they are responsible to the Prime Minister. That Prime Minister, not election by the committee. Thirdly, raises the question: how does a busy Prime Minister the chairman should be the critical person in this with a thousand problems on his plate really take process. direct ministerial involvement? One interesting study we did looked at the proposal—one or two members The chairman of the Intelligence and Security of the committee got quite interested in it—that there Committee should have unrestricted access to all should be an intermediate Minister appointed who operational material within the agency on operations would have overall responsibility for the agencies at that have taken place. The chairman should be in a Minister of State level, answering to the Prime Minister. privileged position in the committee and it should be We thought that this was quite a good idea until we for him to decide whether information should be made discovered that that was exactly what had happened in available to the committee. That is why I do not want Germany. I do not remember the name of the Minister, election of the chair. I want the Prime Minister to pick but he became an intermediate and became carried the chair, because I believe that the Prime Minister will away with his role in intelligence matters—he became know exactly who is capable of handling the material a sort of super-M. At one stage he was flying to Iran and deciding on the circumstances in which the and other places by private jet trying to negotiate the membership of the committee is given access to the release of certain German hostages and other people. information. I would have—I have to be very careful It had gone completely to his head and people suddenly how I phrase this—trusted the chairman, the noble realised that nobody had much control. One or two Lord, Lord King of Bridgewater, to take that decision senior members of Her Majesty’s Civil Service pointed on my behalf, as a member of that committee, long out the dangers of this role to the Prime Minister—one before I would have trusted Labour Ministers, who or two of them may be sitting here—saying that there might not have had the experience that he had gained were occasions when a previous Prime Minister thought as chairman of the committee. that the intelligence agencies were out of control and It is a very serious area and what we are doing now, trying to undermine him. Was it a good idea to pass by going down this route and letting the politicians this off to a junior Minister? The Prime Minister had decide what information gets through, will create problems better keep overall responsibility for it. for the future which we may well regret. In other Having said all that, I think that there is an argument, words, my answer is very simple: keep the Ministers for Ministers who are not—if it is the Prime Minister— out of it. Let the agencies influence the chairman of entirely dependent on official advice on this, that a the committee. Let them go to the chairman and say, properly constituted, effective chairman will bear a “Chairman, we do not believe that this information heavy responsibility if he overrides the head of an should be made available”. If Ministers want to get agency and says that this information should be made involved they can go to the chairman and say, “Chairman, public and then finds that it subsequently proves to be we do not believe that this information should be extremely damaging to national security. That would made available”; but give the chairman the final decision. be enormously damaging not just to him or her personally, The committee, in those circumstances, would have far but, obviously, to the whole role of the ISC. On those more confidence in the arrangement for scrutiny of grounds, it would not be an irresponsible chairman in the services, et al, than is presently the case, or, indeed, this role; it would be somebody who, because of the will be the case under the provisions in the Bill. involvement he has had already, over a period, with 973 Justice and Security Bill [HL][9 JULY 2012] Justice and Security Bill [HL] 974 the heads of the agencies, could probably be expected Lord Lester of Herne Hill: I will be here. to take a more informed and responsible response to representations made by the heads of the agencies. Lord Henley: My Lords, I believe that the noble Lord, Lord Lester, is waiting for some later amendments Lord Rosser: My Lords, I shall be brief, as much of beyond Part 1, so I am sure that he will be here for the the subject matter has been covered already. I wish to amendments in the name of the noble Lord, Lord speak to Amendments 21 and 23. The purpose of Campbell-Savours. I can advise the noble Lord, Lord those two amendments is to ensure that the power to Lester, that Amendment 37 is the one that he should veto disclosure of departmental information can be stay for. exercised only by the Secretary of State and not by a We have eight amendments in this group, which all Minister of the Crown. Paragraph 3(1)(b) of Schedule deal with the power of Ministers to withhold information 1 requires that only the Secretary of State can decide from the ISC. It might be helpful if I start by going that information required by the Intelligence and Security back to where we are now. Currently, the agency heads Committee can be withheld by the agencies. Moving can make a decision not to disclose information to the down to paragraph 3(2)(b), in relation to other government ISC on the basis that it is sensitive information which departments, it appears that the Minister of the Crown they consider it would be unsafe to disclose to the ISC. can make that decision, which would appear to indicate, Information which agency heads consider should be subject to the Minister’s response, that such a key withheld on this basis must, none the less, be disclosed decision can or would be made at a more junior level if the Secretary of State considers disclosure to be than Secretary of State in relation to disclosure of desirable in the public interest. It is a matter for the information in respect of a government department. If agency heads, but the Secretary of State can order the that is the case, no indication is given about a reason disclosure if she thinks it is in the public interest. for that decision. Bearing in mind that withholding required information could thwart the Intelligence The Justice and Security Bill removes the ability not and Security Committee in its work to meet its statutory to disclose from the agency heads; this will now rest remit of strength and oversight of the intelligence and solely with the appropriate Secretary of State according security activities of the Government, such a decision to specific conditions. Where the information in question should be taken only at the highest ministerial and is held by a government department, as opposed to the accountable level within the department concerned, agencies, a Minister of the Crown—rather than a namely, the Secretary of State. These amendments Secretary of State—will be able to withhold information provide for that. on the same specific grounds applied to agency material. In other words, the Bill makes the decision on withholding information from the ISC one exclusively for Lord Lester of Herne Hill: My Lords, perhaps I democratically accountable representatives. could briefly explain the problem that arises with the Joint Committee on Human Rights. It is very important In passing, I shall deal with the question about that parliamentary committees are well informed. From Ministers of the Crown, rather than Secretaries of time to time, under the previous Government and State, being referred to in paragraph 3. This is purely under the present one, the committee has considered to deal with the question of the Cabinet Office, which inviting someone from the intelligence and security noble Lords will be aware does not have a Secretary of service to provide it with a proper context when it is State. Therefore, it would be down to one of two considering something such as detention without trial Ministers in the Cabinet Office to make that decision. for a long period or, for example, the Justice and If noble Lords look at paragraph 3(5), they will see Security Bill. Under the previous Government, when that the, we tried, we were told that it would not be possible “‘relevant Minister of the Crown’”, and, therefore, we were not given the benefit of that will, in due course, be, material. Therefore, we have not tried in relation to the “identified, for the purposes of requests of that description, in a Justice and Security Bill because we are certain that we memorandum of understanding under section 2”. would find the same refusal. We discussed the memorandum of understanding at It seems to me that it ought to be possible for the Second Reading and noble Lords will be aware that we intelligence and security service to assist a parliamentary hope that that, or a draft of it, will be available at a committee, on whatever terms are needed, to protect later stage. its own position, whether giving evidence in private or I now turn to Amendment 18. It is appropriate to in some other way because it is a real handicap. It go through the amendments in slightly more detail. means that when we produce reports, for example, on This will have the effect that if any of the three heads this Bill, we are deprived of information that would be of the intelligence and security agencies are asked by very helpful. It makes us look as though we are the ISC to disclose any information then, as to the looking at problems through one eye instead of both. whole or any part of the information, that person may I do not think that we should be put in blinkers. I arrange for it to be made available to a security-cleared mention this because it seems to be something that adviser to the ISC who may then provide advice to the extends to committees other than the one that we are ISC on the information, including written material in now considering. redacted form. It is worth stressing the importance of the provisions in the Bill governing when information Lord Campbell-Savours: Could I ask the noble Lord may be withheld from the ISC. These powers will be to attend the debate on one of my later amendments, used sparingly only in very exceptional circumstances. which deals precisely with that matter? It is important that we retain those safeguards. The 975 Justice and Security Bill [HL][LORDS] Justice and Security Bill [HL] 976

[LORD HENLEY] 7.30 pm ISC routinely sees very sensitive information, including If we had retained the status quo, leaving a veto that at the highest levels of classification. It would not with the agency heads, I am sure noble Lords would be able to fulfil its oversight role if it did not. It is not have brought forward other amendments on this point. clear from the amendment to whom the noble Our intention is to provide the appropriate additional Baroness intends the term “advisers to the ISC” to checks and balances to ensure that information is apply. Does she have in mind the current staffing of withheld from the committee only in exceptional the ISC or perhaps a completely new role? The type of circumstances. material that a Secretary of State may decide cannot Amendments 22 and 26 are consequential on the be shared with the ISC—a good example would be the preceding amendments, so I do not think I need to say names of agents—is likely to be of such a sensitive anything more about them. nature that, if the Secretary of State has made a judgment that it cannot be shared with the ISC, then it I move on to the effect of the fifth amendment, would not be possible to share it with “advisers to the Amendment 28, which would be to remove paragraph 4 ISC” either. of Schedule 1, which defines sensitive information, and when information could be withheld from the We should also think about the practical difficulties committee on the basis that it is sensitive, for the posed by an amendment of this nature. That is purposes of the provisions of the Bill. The definition Amendment 18. The amendment is likely to lead to of sensitive information set out there is essentially the circumstances where an adviser to the ISC has access same one that appears in the corresponding provisions to information which he or she cannot share with the of the current ISC legislation, the Intelligence Services ISC. This could place the adviser concerned in an Act 1994. As such, the definition has been relied upon impossible position of conflict of interest. When next for many years and is well understood by Ministers, called on to advise the ISC, that person may know the agencies and, not least, the committee. As it happens, information relevant to the advice that he or she is the definition is quite narrow. Sensitive information is, being asked to give, which, because they cannot share “information which might lead to the identification of, or provide it with the ISC, they have to try to put out of their details of, sources of information, other assistance or operational mind. If harm to national security can be avoided by methods available to”, providing information requested in a redacted form, the intelligence agencies. It may also be information then the existing provisions of the Bill oblige the about particular operations or it may be information agencies to provide it in that form; that is the effect of provided by the Government of a country or territory including the words, outside the United Kingdom where that Government “or any part of the information”, does not consent to the disclosure of information. As I say, this is a relatively narrow definition. The intelligence in paragraph 3(1) of Schedule 1. I hope that describing and security agencies certainly hold information which the way in which the ISC and its secretariat presently does not fall into those categories which we might, in operate assists the Committee and explains why the common parlance, describe as sensitive. Government resist Amendment 18. In short, the amendment seems to contemplate an intermediate The second point to note about this definition is level between disclosure to the ISC and non-disclosure, that even if information falls into the category of which I hope I have shown, in practice, does not sensitive information, that is not sufficient under the usefully exist. Bill for a Minister to decline to disclose the information to the ISC. This is because, naturally, the ISC sees The effect of Amendments 19 and 20 would be that plenty of this type of sensitive information. Instead, the Government would never be able to withhold under the Bill, the Minister may decline to disclose the information from the ISC, whether it is held by the sensitive information only where, in the interests of agencies or a government department. As I have national security, it ought not to be disclosed. already said, the powers to withhold information in With those assurances and that explanation, I hope the Intelligence Services Act 1994 have been used that my noble friend Lady Hamwee will feel able to very rarely in the past, and we would expect the withdraw her amendment. I note the concern that she equivalent powers in the Bill also to be used sparingly, and others have expressed. In particular, I do not and only in exceptional circumstances. However it agree with the analysis of the noble Lord, Lord Campbell- is important that those safeguards are retained. In Savours, but we will no doubt have other opportunities particular, although the ISC will clearly be a body to debate that at a later stage. I hope I have also dealt that sees a great deal of very sensitive material, there with what he sees as the pressing problem of allowing will be circumstances in which it is not appropriate junior Ministers such as me occasionally to make for even the ISC to see that information on the these decisions in the absence of a Secretary of State, grounds of national security. For example, there by explaining that it refers only to Ministers of State may sometimes be information that is so sensitive that in the Cabinet Office. With that, I hope that my noble national security demands that it be shared only with friend will feel able to withdraw her amendment. a small number of people within the agencies, let alone with the ISC. This is why the sensitive information ground for withholding information is expressed in Baroness Hamwee: My Lords, the Minister, who the Bill in the way it is. It is not enough that the has been the subject of the many compliments flowing information is sensitive; it must be in the interests of from the noble Lord, Lord Campbell-Savours, today, national security for that sensitive information not to has given us quite a lot of material to think about. He be disclosed to the ISC. has certainly given me some ideas about better drafting 977 Justice and Security Bill [HL][9 JULY 2012] Arts and Culture 978 for my Amendment 18. Given the number of noble The Cultural Olympiad—as the Arts Council points Lords who are here not to discuss this issue, I will do out, the product of sustained investment over the last no more than end with a question. I am not sure that 20 years—is currently a great opportunity to celebrate I expect the Minister to respond to it immediately. in the UK artists and the arts from across the world. Under this paragraph, would a decision by the relevant But there is considerable concern that, with no end to Minister of the Crown—leaving aside the rank or the cuts in sight, the long-term future for the cultural position of that Minister—be judicially reviewable? sector looks increasingly uncertain. Clearly it would have to be shown to be unreasonable and how one does that I do not know. Is this an It may be self-evident that the arts are produced by administrative decision that would fall within the ambit artists, yet there remains the requirement, in the long of judicial review? The Minister is going to dare to term, for a more artist-enabling policy including individual respond. artists and companies, such as theatre companies, even if this is not the whole story of the arts and the cultural sector. A distinction does now need to be Lord Henley: My Lords, I am not going to dare to drawn between artists and the creative industries as respond. I am saying that there are a lot of very noble defined by last year’s Demos report Risky Business,to and learned Lords in this House and a lot of Members which Ed Vaizey wrote an approving introduction, who are not necessarily noble and learned but know a and which I referred to last November in the creative great deal of law. I do not know the answer to that. I industries debate but is worth reiterating in an arts had better write to the noble Baroness. I am sure she debate: will have a response before Report. “We define the creative industries as businesses that ultimately seek to make a profit through the sale of something that is based Baroness Hamwee: My Lords, I am not a noble and on an original creative idea, and the surrounding businesses that learned Member either, which is perhaps why I can enable this”. dare to ask the stupid questions. I beg leave to withdraw Amendment 18. The point here is that this is a significantly narrower definition of creative industries than the one which the Amendment 18 withdrawn. previous Administration used and which was more encompassing of all artistic production. The arts by motivation are not primarily or ultimately a business, Amendments 19 to 23 not moved. although at times they may have much to do with business; they are not an add-on but an integral part Baroness Stowell of Beeston: My Lords, before I of the way in which society criticises and communicates resume the House, I will cover a bit of housekeeping with itself and other cultures. relating to the next debate in the name of the noble Earl, Lord Clancarty. I remind noble Lords that, with Some say the arts need “to get real” in difficult the exception of the noble Earl and the noble Viscount, times. But it will be unrealistic in the long run to Lord Younger of Leckie, all speeches are limited to shoehorn all the arts and creative industries alike into three minutes because this is a time-limited debate. I a business model that will not only be ultimately remind all noble Lords participating this evening that ineffective but inappropriate for much of the arts and when the Clock hits three minutes, I am afraid that is a the cultural sector. signal that time is up. Those who have a television The assessment of risk and more objective evaluation background should maybe think of their Whip tonight exercises are some of the strategies which have as a floor manager—they will stand between you and already been introduced into the arts, but—as the the camera if they need to. actress Julie Walters recently pointed out, as others have before her—failure and experimentation are part House resumed. Committee to begin again not before of the very nature of artistic practice, and we tamper 7.37 pm. with those aspects at our peril. I know from my own experience of local arts centres and services outside Arts and Culture London that the network of services for the visual arts, music and theatre is not only already being thinned Question for Short Debate out but what remains is, out of necessity, becoming more commercialised, with, little by little, less room 7.37 pm for innovation. Asked By The Earl of Clancarty The great irony is that while the funding of individual artists, companies and organisations inevitably carries To ask Her Majesty’s Government whether they risk, the large-scale financial support of the arts sector have a long-term strategy for the arts and cultural as a whole is not only risk-free but of massive benefit sector; and, if so, what that strategy is. to society, artistically and economically, and could make a significant contribution to kick-starting growth. The Earl of Clancarty: My Lords, the first thing I However, I believe that this can only properly—that is, would like to do is warmly congratulate the noble most efficiently—be achieved through public funding, Viscount, Lord Younger of Leckie, on his new job and because you need to support the grass roots as well as wish him all the very best on the Front Benches. I the mainstream, because philanthropy will only ever know that this will be a particular treat for him as he target the most prestigious organisations, and has a takes an interest in both the arts and sport. metropolitan bias. 979 Arts and Culture[LORDS] Arts and Culture 980

[THE EARL OF CLANCARTY] conference, that the libraries are “thriving” when many For two years, the arts establishment has been now have staff shortages and greatly reduced opening patient and felt that it should wait its turn in the hours, suggests to me a Government in denial about queue. But this is a false situation. The same government the huge problems that libraries face. policy of ideologically driven public funding cuts is cutting back on state allowances, benefits, libraries, On free admission to the national museums, I am museums and symphony orchestras alike. The most very glad that last week the Evening Standard reversed devastating news last week was the prediction by the its position. It now supports free admission and I hope Local Government Association that a shortfall of that the Government will continue to maintain a policy £16.5 billion would mean an almost complete eradication that is so successful and popular with the public. of funding at the local level of arts and cultural services, including libraries, by 2020 unless there is a I understand that the noble Baroness, Lady Bonham- radical change in policy. Carter, will devote her speech to the hugely important area of arts education, which at school level should I will now turn to some specific issues. I have made properly include both old and new technologies. I will the argument that the arts are distinct from the creative just say that the EBacc still does not contain an art industries as now defined in that a financial goal is not and design element. the prime objective for the majority of artists and artists’ companies. At the same time central government The Cultural Olympiad is a festival of cultural needs to protect and encourage proper payment for exchange, so important for the long-term development artists in all disciplines, and on all occasions, as for of British art, and a real opportunity for sharing ideas any working person. This is part of the provision of a between artists of different countries and cultures. It is space in which the artist can operate and work. good that the UKBA has been working closely with There are numerous long-term concerns facing artists the Cultural Olympiad in facilitating the admission of with regard to income, royalties and copyright, although the many visiting artists. I thank the Government and a distinction in kind needs to be made between the the UKBA for introducing the permitted paid protection of artists’ work and the obsessive protection engagements scheme outside the points-based system, of copyrighted logos such as the Olympic rings and which started in April and goes some way to answering London 2012, which has proved to be the most distasteful some of the concerns around visiting artists. However, form of corporate bullying. For authors, among other it is not perfect and significant improvements should issues, there is the concern about the public lending be made. The one-month maximum time for a visit is right, which ought to extend in practice to audio too short. That artists should be full-time is simply not books and e-books, as provided for in the Digital realistic; visual artists, poets and concert pianists, for Economy Act 2010. example, have jobs in related or other areas that inform There is also the question of proper royalties for their work as artists and one paid engagement per visit visual artists. The upper threshold on which royalties is too limiting. It is also important that the details of administered by the Design and Artists Copyright the scheme are made more widely known both externally Society are based is ¤11,500 for an artwork, irrespective and internally, especially to front-line staff. of the sale price above that, a price set specifically to It is normally the Home Office that answers questions help the art trade. But there is a concern over a desire on this issue, but I wanted to raise what is primarily an in some quarters to raise the current lower sale threshold arts matter in an arts debate. The DCMS should be from ¤1,000 to ¤3,000, which would affect many artists taking a lead on these issues, and indeed the current whose income is not high. I hope that the Minister can Artists International Development Fund, jointly say that the Government will resist this and affirm administered by the Arts Council and the British their support for artists. Council, may be very helpful to British artists’ career In the wider cultural sphere, on libraries, Ed Vaizey development. has queried the figure of 600 libraries under threat that I gave during Oral Questions last month, saying Arts administrators are full of ideas about negotiating that this is simply a figure bandied around by the these difficult times, although public funding that media. The Chartered Institute of Library and addresses core functions and the day-to-day running Information Professionals produced that figure. If I of services is what is most urgently required. There is am at fault, it is in not realising quite how many no more unhelpful cliché than that “the arts are libraries have already closed recently. Some of the resilient, they will survive”. The kind of government 600 will be among the 122 that have closed in the we have has a significant effect on the nature of our single financial year 2011-12, according to the Public arts culture. A Government can be either a friend or a Libraries News website, which lists every single one of foe to the arts. The current reality is that government them. This independent website run by librarian Ian policy is causing companies to fold and hampering Anstice is certainly a much better source of information particularly young and emerging artists from carrying than the DCMS, which is not keeping a close enough out their work effectively. I also believe that we in eye on the situation, even though it is the Secretary of Parliament and certainly those in government are State who, under the Public Libraries and Museums directing too much attention towards a more Act 1964, has the power to intervene. A library professional powerful centre and big business, when artists and tells me that the figure of 600 threatened if the present those working in the arts and the cultural sector cuts continue will soon be, in his words, “a gross elsewhere are being neglected. In the long term this underestimation”. For Ed Vaizey to say, as he did in must change for the good of a thriving arts culture his speech on 28 June at the Future of Library Services throughout the UK. 981 Arts and Culture[9 JULY 2012] Arts and Culture 982

7.47 pm cuts for video games, animation and high-level television production sectors, but obviously those need people Baroness McIntosh of Hudnall: My Lords, I thank who are skilled. The Next Gen. report drew attention the noble Earl, Lord Clancarty, for raising this debate to the fact that the way that ICT is being taught in and for his remarkably concise gallop through all the schools is too narrow. So Michael Gove’s announcement issues that I hope this debate will eventually cover. It is in January that the current programme of study for particularly timely because we are in the middle of ICT will be withdrawn in September, and that e-skills what must be the biggest cultural festival this country UK is creating a brand new GCSE which has computer has ever seen. For that, we are of course greatly science at its core, is excellent news. IT is a very male indebted to the noble Lord, Lord Hall, and his colleague world—only 17% of the workforce is female—so the Ruth Mackenzie—although if I were in the Minister’s fact that e-skills UK has recently relaunched Computer position at this moment, I would be doing my best to Clubs for Girls is a very good thing too. claim every bit of credit I could lay my hands on. However central the understanding of technology I have a couple of points for the Minister to consider, has become to the creative industries, these industries if he would. First, as has already been raised by the are still underpinned by creativity itself, and Darren noble Earl, what has nourished the energy and creativity Henley’s review of cultural education is another crucial that we see now is steady, sustained investment, not element in tackling the skills deficit. It debunks the just of funds but of political support and recognition. pernicious idea that children are wasting their time by Today, even in sadly depleted economic circumstances, studying cultural subjects. I am glad to say that the the arts and culture are among our greatest strengths, Henley review has been greeted with enthusiasm by not least in their contribution to GDP. We should the Secretary of State for Education. In response, the celebrate that strength, and the people who create and coalition Government have committed to immediately support it. addressing 10 of its recommendations, including setting The second lesson is that our success comes not up a cross-departmental board; a new national youth only because we are exceptionally rich in talented artists, dance company; national art and design Saturday which we are, but because those artists are supported clubs and working with teaching schools to improve by, and in many cases are leading, highly entrepreneurial the quality of teacher training in this area—which is businesses within which public funds, though absolutely very important. What is very disappointing, however, crucial—and I stress that—are by no means the only is that the inclusion of culture as a mandatory, sixth or even the main source of income. I am sorry if that strand of the English baccalaureate and design as a offends the noble Earl, but I think it is important. The STEM subject is not on this list. tired old tropes about how the arts need to be more I chaired a Westminster Education Forum recently businesslike, which we still hear all too often, are way and spoke to a headmaster who said, “I have head out of date. These are modern, sophisticated businesses teachers who are cutting subjects from their key stage 4 managing substantial risk with great skill and led by curriculum in order to feed into the EBacc. So now people of imagination, commitment, financial acumen the school is saying that geography is in the EBacc, and integrity—and I am afraid that I have to mention drama is not. We really recommend that you do the noble Lord, Lord Hall, again because he is one of geography”. them. Can we say as much for some other, allegedly more businesslike sectors? I think not. As a result of another report by Darren Henley, we have the excellent national plan for music education, What can Government do? I hope that the Minister and I would encourage the Secretary of State to has listened carefully to what the Earl, Lord Clancarty, achieve the same in cultural education by embracing has just told us. The Government should keep up the the whole report. investment, because the return is excellent; trust the practitioners; encourage local authorities; maintain a Before the noble Baroness interrupts me, I would strong Arts Council led by people who know what like to say that I think it is appalling that I have only they are talking about and let them get on with nurturing three minutes to talk on culture when we spend so this highly successful sector from the ground up; and much time on House of Lords reform. above all, have the courage to speak up unambiguously for the arts, whatever the public mood. Sometimes 7.53 pm public taste has to be led, not followed. I hope that the Lord Hall of Birkenhead: My Lords, I add my Minister agrees and that he will be sharing with the congratulations to the noble Earl on securing this House at the end of this debate a strategy for the arts debate three weeks into the London 2012 Festival, and culture that gets behind success and gives it a which is the best chance we have ever had to showcase hearty shove. I can promise him that the political the world-class nature of arts and culture in this dividend will be worth working for. country. I declare an interest as chair of the Cultural Olympiad board and chief executive of the Royal Opera House. 7.50 pm I would like to reflect a little on some of the things Baroness Bonham-Carter of Yarnbury: My Lords, that we have learnt so far in respect of the festival. I speed-talking. Congratulations on the debate. Declare remind you that there are 12,000 events featuring an interest: Lowry . I will concentrate on skills. more than 25,000 leading artists from all 204 competing We on the Liberal Democrat Benches have campaigned Olympic nations—no other country could do that. We long and hard on behalf of the creative industries, so I wanted to attract the audiences. Some 80% of the was particularly pleased about the introduction of tax audiences at Shakespeare’s Globe for “Globe to Globe” 983 Arts and Culture[LORDS] Arts and Culture 984

[LORD HALL OF BIRKENHEAD] There is a simple truth that should lie at the heart of performances were new attendees, and 44% of people this debate: Britain still leads the world in the creative who booked for the RSC’s World Shakespeare Festival industries. However, this leading role is dependent on performances at Stratford-upon-Avon were also new a complicated and fragile amalgamation of heritage, attendees. culture and investment, particularly in education and We also wanted to enable as many people as possible opportunity—not to mention raw talent and government to experience the festival for free, so we created 10 million support for that raw talent. If austerity Britain ignores free opportunities to take part—3 million of these that fact, we will surely ignore the fact that Britain is a have already been taken up. We should not underestimate talent hub that creates production and content that the power of free; some 10,000 people attended the resonate around the globe. I cannot help but feel that opening concert in Derry/Londonderry, and tens of in this cult of austerity Britain, the Government are thousands attended the BBC’s Hackney Weekend. We turning their back on one of their most promising and should reflect on this as we plan for the future: free extraordinary world-leading sectors. It is a sector that can work. is under fire. Arts funding is under unimaginable In its first three weeks, the festival has inspired the strain, creative agencies have been cut, a recent example “Today” programme’s “Thought for the Day” twice. I being the Film Council, and—an obsessional interest had not thought of that as being a target, but there we of mine—some university music departments are having are. It is a good indicator, I guess, because both to close, such as that at the University of East Anglia. occasions showed off the values and importance of I want to be clear, and if I appear a little nervous, it the festival and the Cultural Olympiad. The first “Thought is because I want to say that our vast creative potential for the Day” was inspired by the first ever visit of the is being strangled without any clear funding strategy conductor Gustavo Dudamel and his Simon Bolivar for its long-term future. In 1972, when I had seven Orchestra to the social housing estate of Raploch, productions touring the world, I remember being asked near Stirling, where children have been learning orchestral by Sir Keith Joseph, then the Minister of Housing and instruments under Sistema Scotland—the same system Local Government, whether any British theatre was that produced Dudamel and his extraordinary orchestra. exportable. I fear that some of that same lack of On a really wet night, but a brilliant night, it showed acknowledgement and awareness still exist today. We the power of sustained investment in musical education have to challenge the mindset of the Government. to reach places that other things simply do not reach. Without the private funding and the support of That is an essential part of any strategy for the arts many private individuals and institutions up and down going forward, and I very much hope that the Henley the country, the situation that I describe would be so review will be committed to it with real resource for much worse; in many ways it might be irretrievable. many years to come. However, it is no good for the Government to think The second “Thought for the Day” was inspired by that they can rely on benefactors for ever. So I ask the the concert of homeless people at the Royal Opera Government urgently to consider a clear formula for a House, organised by Streetwise Opera. This is the first public-private partnership that ensures that there is a time that it has ever happened in an Olympic or more mutual and solidly funded foundation for the—I Paralympic official festival and we were glad to have hate to use the word “industry”—arts. them there. It was as profoundly moving as the concert If I were the Chancellor of the Exchequer and in Raploch. Again it sent out a strong message to the invited as a guest into the “Dragons’ Den”—obviously world about the values of this country and the importance I have not been; and if I were him, I would not want to of the arts to regenerate and inspire communities and be—and someone brought to me a proposal to invest individuals, and again it demonstrated the power of in nurturing British creative talent across the board, I creativity to give confidence and to raise self-esteem. would invest in it here, now and immediately. It is time Both events illustrate the importance of the London that the Government did. 2012 Festival’s power to generate interest right around the world, as well as in the UK, and to show the world the value we place not just on the importance of art 8pm but on the importance of free artistic expression. Baroness Benjamin: My Lords, I, too, thank the Today, for me, the big question is how we ensure noble Earl for securing this important debate. I begin that this is not just a once-in-a-lifetime event but that with a statistic: 15% of the population, 1% of the it is sustained in the future so that even more people funding. Whether you find this as shocking as I do will are given similar opportunities. depend on your attitude to the population group that it refers to, so let me tell you that the 15% refers to 7.56 pm children up to the age of 12 and that 1% is their share Lord Lloyd-Webber: I thank the noble Earl, Lord of public funding for the arts. Perhaps now you find it Clancarty, for introducing this debate, and obviously I shocking. This inequality was revealed at a conference must declare my interests. I have spent every day of held last month by the national charity, Action for my working life in the creative sector and have Children’s Arts, of which I declare an interest as a been lucky enough to witness extraordinary home- patron. grown talent across the board, from musicians and The conference was called “Putting Children First”, designers to actors, logistics specialists and even and the finding was based on freedom of information video providers. Every day I see how the ripples of a requests made by the charity to the national arts successful creative industry are wide-reaching and affect all funding bodies—the four UK arts councils and the aspects of our lives. We underestimate this at our peril. BFI as well as 20 of the UK’s national arts 985 Arts and Culture[9 JULY 2012] Arts and Culture 986 organisations—asking what proportion of their budgets Other government priorities include broadening was spent on provision where children were the intended audiences and embracing new technologies. The national audience. It is our responsibility to make sure that plan for music education is a welcome approach to the there is enough cultural life to go around and that first of these, and I hope that all schools will be more than 1% of it is left for children when we have all encouraged to engage with it. Efforts to promote the had our share. use of digital technology in the arts are fine, so long as Ethel Merman said: “We spend the first three technology is recognised primarily as an enabler—it years of a child’s life teaching them to walk and talk, has been described to me as the greatest discovery then spend the next 10 years telling them to sit down since the invention of the bucket for encouraging and shut up”. We should never forget how important donations. I was delighted to learn that “The Space”, the arts are in forming children’s minds and giving a new free “digital pop-up arts channel”—whatever them insight into the world they live in. We adults that means—developed by the Arts Council and the give them artistic and cultural messages telling them, BBC, has provided a live streaming of Berlioz’s opera “This is what life is about”. They soak up that information. “The Trojans” from Covent Garden, and I declare an It stays with them for ever and in turn will encourage interest as a trustee of the Berlioz Society. them to become creators themselves. We must get Access is important, of course, but aspiration and those messages right by giving them the highest-quality accomplishment in the arts are even more so. In the cultural stimulation so that they can use their imagination current straitened times, the arts should take, and have to be creative, which will allow them to live fulfilling taken, their share of necessary funding cuts, but care is lives free from the shackles of mediocrity and will needed not to kill the goose that lays the golden eggs. redeem those who have taken the dangerous path to The strength of the music scene in the UK owes much gang crime, drug culture and anti-social behaviour. to the number of talented musicians who come to The Government’s long-term strategy for the arts study, teach and perform at our world-class conservatoires: and cultural sector must give children a higher priority. the Royal Academy of Music, the Royal College of There must be incentives through the funding system Music and the Guildhall School of Music and Drama of our great cultural organisations for them all to take each have over 50 nationalities among their students. their share of responsibility for our children’s right to Training top-rank musicians, like training scientists or culture and the arts. Children are not just the audiences doctors, is expensive, but it helps to create a valuable of tomorrow; they are also the audiences of today in revenue-earning asset for the UK. A new study by the their own right and they deserve much more than 1% LSE on behalf of these three conservatoires shows of the arts budget funding to give them the necessary that even during the recession the creative industries food for their soul. Can my noble friend assure the continue to act as engines of economic growth and House that the Government will encourage arts funding innovation for the UK. The sector is estimated to have organisations to increase the percentage of funding generated some £25 billion in 2010, and the presence they give to children’s arts and start putting children of institutions such as the conservatoires helps to fuel first? this through what the LSE calls “agglomeration”. How do the Government seek to encourage more 8.03 pm private support for the arts in the regions outside London? What will they do to encourage all schools to Lord Aberdare: My Lords, I have had to cut the engage with their local music hubs? Will music education congratulations to my noble friend and the welcome be formally included in the key stage 3 and 4 curriculum to the Minister. I will focus on private support for the and in the EBacc? Can the Minister give a reassurance arts and on classical music, including music education. that the UK’s leading conservatoires will continue to Corporate support for the arts fell to its lowest level receive the funding they need to develop world-class for seven years in 2010-11, which was mistakenly musicians and to attract top musical talent to the UK? designated the “year of corporate giving” to the arts. I am not surprised. I was responsible for IBM’s UK arts sponsorship in the late 1980s when it was already 8.06 pm being overtaken by newer forms of advertising and Baroness Hooper: My Lords, as vice-chairman of brand promotion. Future corporate support for the the All-Party Group for Dance and a former governor arts is likely to be driven either by corporate responsibility of the Royal Ballet and the Royal Academy of Dance, goals, when investment in the arts is seen as achieving I intend to dwell on dance this evening. The prestige social or community aims, or by direct business relevance, and super standards of the Royal Ballet and English when the arts help businesses to do better by increasing National Ballet attract not only international audiences their creativity or flexibility. but international performers from around the world, The prospects for individual support are better. The but there are many other dance companies, in London Government were right to recognise, eventually, that and in the regions: the Rambert Dance Company, the donors need to be properly recognised and certainly Birmingham Royal Ballet, the Northern Ballet and not treated like potential tax-dodgers. Individual the Scottish Ballet, to name but a few. They are fundraising needs to be spread much more widely equally international and do an enormous amount to outside London, which received 81% of all individual bring ballet to the people with their touring companies arts giving in the year to March 2011. Arts strategies and outreach programmes. Large numbers of young should include the promotion of good practice in people are now considering ballet as a career who fundraising, for example, by peer-to-peer advice and would not have dreamt of it before—mind you, “Billy support among smaller arts organisations. Elliot” probably had quite a lot to do with that. All 987 Arts and Culture[LORDS] Arts and Culture 988

[BARONESS HOOPER] Clarkson is worshipped as a god. The creativity of the these companies also demonstrate the work of some independent sector has made the UK the world leader dynamic young choreographers, who are, after all, our in formats, so programmes such as “Come Dine with future. Me”, “Who do You think You Are” and “Strictly Dance comes into my definition of soft diplomacy Come Dancing”have been turned into local programmes and improves multicultural understanding and good across the globe. Channel 4, commissioning only from will. Only last week, there were two events in Westminster the independent sector, has supported films that have Hall—the Commonwealth Carnival of Music and an won 14 Oscars in the last six years—and who else Indian dance group performance on Thursday— would televise the Turner Prize? emphasising the cultural diversity of our country and, Markets are well established in Europe and the indeed, of our Parliament. I feel sure that in your English-speaking world, but there is huge potential Lordships’ House I do not need to enlarge further on for growth in the emerging markets. In Latin America the contribution made by classical ballet in particular last year, export sales rose by 16%. PACT is clear and by dance in general to the artistic life of this that there is much more scope for growth, so can I ask country. The object of this short debate is to ask what the Minister to use his best endeavours to speed the Government’s long-term strategy is. It is vital. My up the co-production treaty with Brazil? The next objective is to plead that dance be recognised as a full communications Bill must maintain the strengths of and important part of that strategy. the sector by protecting the copyright regime and Adequate funding is, of course, important, but focusing the terms of trade on maintaining growth there are also other ways of supporting and encouraging and competition. this part of the performing arts. Joined-up government A contributor to the vibrancy of the sector has is of equal importance to ensure, for example, that been the independent production quota and the out- dance teachers are not forgotten when teacher training of-London quotas, and these must be maintained. and the school syllabus are under discussion, so both You only have to look at the new creative hubs in education departments need to be involved. Tax incentives south Wales and Salford to see the impact that this can have been mentioned, and that brings the Treasury in. have. In Scotland, around 3,000 people are employed The visa regime also impinges on performing artists in the sector. What is the Government’s view of granting and on students coming to train and study in this STV Productions independent producer status, which country, and paying their way to do so, so the Home would allow it to grow further and attain critical Office needs to be involved. Health can also be relevant, mass? and may I welcome the new National Institute of As my noble friend Lady Bonham-Carter said, tax Dance Medicine and Science, which now operates incentives for specific genres have a proven impact and from within the National Health Service and specialises need to be kept and, where effective, extended. in dance injuries? The Foreign Office, too, underlines We can be rightly proud of the variety and quality the contribution of soft diplomacy and brings in the of UK television and its contribution to our cultural British Council, and so it goes on. life. Our responsibility in Parliament and in government It is not just that the Department for Culture, is to work with the industry to maintain it. Media and Sport has to take the lead; it also has to act as co-ordinator. I look forward to hearing from my noble friend the Minister and I thank the noble Earl, 8.13 pm Lord Clancarty, for giving us this opportunity. Lord Smith of Finsbury: My Lords, I remind the House of my interests as chairman of trustees at the 8.10 pm Donmar Warehouse theatre and at the Wordsworth Baroness Scott of Needham Market: I wish to speak Trust. about a sector in which the UK leads the world—the A starting point should also be an acknowledgement television industry, particularly our thriving independent that the Government have taken some welcome steps production sector. Figures published last week show in arts policy.They have, I am delighted to say, maintained that the indie sector now generates revenue of around the policy of free admission to our national museums £2.4 billion. This continued growth is due in great part and galleries. They have sustained the film tax relief, to the Communications Act 2003, which corrected which has been such an important element in sustaining market failures in commissioning and allowed producers an independent film industry here in the UK. They to keep their own intellectual property. have revived the Renaissance in the Regions programme The recession has had an impact—figures produced for regional museums, and they have given in recent for the trade association PACT show that primary UK weeks some very welcome boosts to private philanthropy commissions are down and that profit margins have in relation to the arts. fallen. The only indies showing a growth in profitability We should also acknowledge that in hard financial are the mid-sized ones, and it is a reminder of the times Arts Council England has shown some very contribution to the SME sector—Channel 4 alone considerable skill, under the leadership of Liz Forgan works with more than 420 suppliers. and Alan Davey, in helping the arts sector to weather The big success story is in the independent sector the economic storms that are now around it. However, export market, which increased more than 15% last those storms are real and there are now severe year. The UK is a major exporter of programmes. financial difficulties ahead for the entire arts sector—not “Downton Abbey”, for example, has been resold across just difficulties in government funding but in the the globe, while in many countries, inexplicably, Jeremy catastrophic falls in local authority funding in many 989 Arts and Culture[9 JULY 2012] Arts and Culture 990 parts of the country, coupled with a private and point; for many smaller and regional arts organisations, corporate giving sector that is under some considerable the debate about tax relief and donations had rather strain. less urgency about it than it did for the London-based In addition to those financial difficulties, I do not national arts organisations. We need a different model believe there is yet enough clarity from the Government to encourage and build on private patronage, and in the long-term strategy for the arts. What ought the donations, when different relationships exist between key elements of such a strategy to be? It should be benefactor and organisations. based, I believe, on four fundamental pillars: first, It is vital that the Government look at ways of excellence—supporting the best possible work, which supporting growth in the sector, particularly in regions means including risk and innovation; secondly, access— where there is strong potential for developing a distinctive ensuring that the widest number of people have access cultural offer that taps into areas with a strong sense to the best possible work; thirdly, education—building of regional identity and the creative talent that can on the real success of the Creative Partnerships programme articulate such a vision. If we lose the capacity and to give pupils in schools up and down the country a appetite to invest in risk-taking, we will not hold our real start in being creative and understanding creativity; place as the home of some of the most creative and, fourthly, supporting the creative economy, which practitioners in the world for long. is linked fundamentally with the more traditional arts sector. 8.19 pm We have, over the past 10 or 14 years or so, been Lord Cormack: My Lords, I am delighted to add living through something of a golden age in the arts in my thanks to the noble Earl, Lord Clancarty, for this country. I like to think that the Government, in introducing this debate, and to add my welcome to my whom I had a part, played a small part in supporting noble friend Lord Younger, as he assumes his ministerial that golden age. I plead with the Government to responsibility. dedicate themselves to sustaining it. It has been a wide-ranging, although brief, debate at a gallop. I would just say to my noble friend who 8.16 pm will respond that we desperately need a coherent Baroness Young of Hornsey: My Lords, I thank my strategy for the arts, heritage and cultural affairs in noble friend Lord Clancarty for securing this debate, this country. The noble Lord, Lord Smith of Finsbury, particularly since many of the arts and creative was right in giving his list of criteria, and I commend practitioners with whom I work are hard put to identify them to my noble friend, but I want to make two what the coalition wants from the sector, what its points. expectations are and how it is going to support its In 1974, I helped the late Andrew Faulds to found growth and develop its resilience. There have been the All-Party Parliamentary Arts and Heritage Group, some helpful initiatives, but it is not clear how they which has become over the subsequent 38 years the constitute the Government’s wider landscape of ambition largest group of its kind in Parliament—and I like to for the arts and creative sectors. think that we have achieved something. We have lobbied We are fond of boasting of our creative achievements Ministers constantly to try to give two things that and success on the global stage. Indeed, the Cultural those involved in the arts need above all others. First, Olympiad, the cultural festival, is an exemplar of that there is the recognition that a little goes a long way in ambition and that reach, taking it all to a much higher this field; we are not talking vast sums in the context level than previously. Our achievements on the world of the national Budget. The other thing is that arts stage are rightly lauded. We also, through our creative and heritage organisations need a degree of continuity industries and the arts, contribute to the economy and and to be able to plan with some certainty for the to the social fabric of the country. However, these are future. somehow consistently undervalued when it comes to A couple of weeks ago we had an excellent debate, funding and public words of support. How else can we which I was privileged to introduce, on the future of explain the lack of attention given to developing a English cathedrals. In that debate I called for an sustainable, appropriately financed strategy that will endowment fund for English cathedrals, and I commend ensure that the sector continues to thrive? that suggestion to my noble friend. In all fields of the Our creative successes in film, theatre and so on built visual arts, that sort of endowment fund would have come about through a combination of sheer hard produce returns far in excess of the investment. Tourists work and the creative talent in the sector, and public and visitors to this country are drawn as by a magnet funds allocated to support those efforts. For the arts to our arts and our great historic buildings. ecology to thrive, there is a need for creative diversity, In conclusion, I am privileged to chair an organisation scale, capacity, risk-taking and innovation, which has called the William Morris Craft Fellowship. We need been described as something collective, but also something to encourage in our young in our schools the belief uncertain, that to do things with the hands is every bit as worthy “with high failure rates but also high returns, with the state often as to do other things. Indeed, I would say that a degree undertaking the greatest degree of risk and uncertainty. And in media studies does not begin to compare in importance third, it is cumulative innovation today that builds on innovation or satisfaction with the creation of a fine piece of yesterday”. sculpture or repairing a great historic building. We Working with practitioners in the north of England need to encourage more of our young people to take has made me much more aware of how London-centric up careers in the crafts. I hope that my noble friend, policy-making in the arts is. Philanthropy is a case in with his manifold responsibilities, will talk to his colleagues 991 Arts and Culture[LORDS] Arts and Culture 992

[LORD CORMACK] cultural leaders and innovators who will be contributing in government and say that that ought to be a priority. to our economic wealth in the future. These are the If we truly believe in apprenticeships, there are no sorts of issues that we would like to see highlighted in more worthy ones than craft apprenticeships. a long-term strategy. Without it, as this debate has shown, the potential of the arts risks being set back 8.22 pm for a generation. Baroness Jones of Whitchurch: My Lords, I am very 8.25 pm grateful to the noble Earl for tabling this Question this evening. In many ways, it is an indictment of this Viscount Younger of Leckie: My Lords, I congratulate Government that the question at the heart of the the noble Earl, Lord Clancarty, on securing this debate. debate has to be asked. However, I welcome the noble It gives me particular pleasure to respond this evening Viscount, Lord Younger, to his new role. I hope that on my first occasion at the Dispatch Box, as the noble he has taken note of the very powerful messages from Earl and I entered this House at about the same time around the Chamber this evening and I look forward two years ago. As a Member of this House who to hearing what I hope will be an enlightening and continues to keep arts and cultural issues on the reassuring response. agenda of this Chamber, he is to be applauded. He I do not want to dwell on Jeremy Hunt’s recent may not be surprised to hear that I do not entirely misfortune, but the context for this debate is a department share his views on the current status of the arts. I am that has been struggling with a lack of leadership for pleased to hear that others, such as the noble Baroness, some time, so much so that there are persistent rumours Lady McIntosh, take a slightly more positive view. I that it will be abolished altogether at the reshuffle. The also thank other Members for their contributions to creative industries need a stronger voice in government our discussion. I particularly appreciate some support and a stronger Secretary of State at the Cabinet table, from the noble Lord, Lord Smith of Finsbury, but I not no voice at all, and they need a champion for a recognise his highlighting of some strains at a time of coherent arts and culture strategy across government, austerity, which we are all aware of. I shall endeavour working with the Treasury, BIS and the Department to answer the points raised and I can write to those for Education, for example, as our party intends to do. noble Lords whose points I do not have time to address. In the short time I have left, let me give some illustrations of what should be included in that strategy. First, arts and culture is a hugely broad topic and First, on funding, the Government need to identify the the need for support, while very important, has to be role that culture can play in leading us out of recession. prioritised and constantly reviewed. The Department The creative industries already account for 8% of our for Culture, Media and Sport covers communications, GDP and have the potential to grow at double the rate creative, media, cultural, tourism, sport and leisure of any other sector. Philanthropy may have a role, but economies. It also includes ballet and dance, so it should not be expected to plug the gap left by importantly raised by my noble friend Lady Hooper. receding public subsidy and it has a limited reach—for A key resolve is to create the conditions for growth in example, 81% of private giving goes to organisations this sector by removing barriers, providing strategic in London. As we have heard this evening, arts direction and supporting innovation and creativity. organisations need financial confidence and certainty These points have been made succinctly by the noble to maximise the contribution that they can make to Baroness, Lady Young of Hornsey. Our overarching our future prosperity. strategy is to see a thriving and resilient arts and cultural sector, drawing from a range of funding sources, Secondly, we need to address the crisis in regional appealing to a wide range of audiences and delivering and local funding. On top of 28% cuts so far, the high-quality culture. There are three strands to our Local Government Association calculates that local long-term arts vision: financial stability, philanthropy authority funding for the arts will have all but disappeared and attracting new audiences. by 2020. This cannot be allowed to happen. Community First, I shall focus on financial support, where we arts are where our next generation of writers, performers have to start with some home truths. The first priority and artists learn their skills, and access should not be of this Government remains to create financial the preserve of those living in the metropolitan areas. stability across the UK. Regrettably, this means This is why we need a statutory duty on all local sharing some pain—in some cases considerable pain— councils to support the arts in their area. across all sectors of society. Of course, I would have Thirdly, we need an international strategy that preferred no cut to the arts and culture sector at all, recognises that the cultural industries not only attract but it would be unrealistic for cuts to be made in all inward investment but are major exports of this country. other parts of the public sector except the arts. At the We are a major global player in, for example, design, time of the 2010 spending review, departmental budgets, music, animation and film, so next time David Cameron other than health and overseas aid, were set to reduce and Vince Cable lead a trade delegation abroad, perhaps by an average of 19% over four years. However, while they should be accompanied by our cultural rather Arts Council England overall faces a significantly than our manufacturing leaders. reduced budget, we have limited the reduction in the Finally, we need to address the glaring mismatch budget for regularly funded arts organisations to 15%, between, on the one hand, the Education Secretary’s offering a little protection for front-line arts. Taking agenda, in which creativity, art and design, music account of lottery as well as government funding, the and the performing arts are all but squeezed out, Arts Council will receive some £2.3 billion over the and, on the other hand, the skills demanded by the next four years. This means that, in 2014-15, total arts 993 Arts and Culture[9 JULY 2012] Arts and Culture 994 funding via the Arts Council will have reduced by less the way in which people connect with and experience than 5% in real terms, set against the comparable arts and culture. Last summer, Arts Council England, figure in 2010-11. the Arts and Humanities Research Council and the Now let me turn to lottery funding. One of the first National Endowment for Science, Technology and the decisions that we took in government was to revert the Arts—known as NESTA—announced a new £500,000 National Lottery to its original aims of supporting the digital research and development fund for arts and four good causes by restoring the shares for each of culture projects that harness digital technologies to the good causes of sport, heritage and the arts to 20%. connect with wider audiences and explore new ways of The fourth good cause is the Big Lottery Fund, working. Of course, nothing will ever replace the live representing 40%. Due to continuing strong ticket experience, but if a child in Cumbria can watch a sales, income projections indicate that there should be production 300 miles away from the National Theatre more than £1 billion of extra lottery funding for the or Sadler’s Wells, we can proudly say that our investment good causes over the next five years, when compared in the arts can benefit the whole nation. with September 2010 projections. The arts good cause We also wish, through Arts Council England, for can expect to receive more than £1.8 billion of lottery more people to experience and be inspired by the arts, money over the life of this Parliament. This is over irrespective of where they live or their social, educational £200 million more than was projected in September or financial circumstances. To support this strategy, 2010. the Creative People and Places Fund will focus investment Philanthropy was highlighted by some of your in places where involvement in the arts is significantly Lordships. I begin with a thought from Andrew Carnegie below the national average. A total of £37 million in 1888 that still resonates today. He said that to give from the arts lottery fund will be available to establish money is, around 15 projects up to 2015. “the noblest possible use of wealth … The man who dies rich dies When considering the wide reach of the arts across disgraced”. social groups, it is worth highlighting a finding from We have achieved much with regard to philanthropy in our Taking Part survey. When respondents were asked a short space of time. For example, we have launched whether they had been to a museum or gallery on at the Catalyst scheme, whereby £30 million has been least one occasion in the past 12 months, two socio- given to arts and heritage organisations to encourage demographic groups had significantly increased their match funding, and £55 million has been given to arts visits between 2005-06 and 2011-12: among black and and heritage bodies to build up endowments. This was ethnic minority respondents there was an increase of mentioned by my noble friend Lord Cormack. The 10.7 percentage points to 61.4%; and from those in the Secretary of State last month commissioned three social rented sector there was an increase of 9.2 percentage further reports to look at making legacy giving easier, points to 55.6%. harnessing digital technology to boost charitable giving I would like to touch briefly on the Wedgwood to the culture and heritage sectors and looking at ways collection on the grounds that, although the noble in which we can boost fundraising outside London, as Earl, Lord Clancarty, has not raised it this evening, I the noble Lord, Lord Aberdare, mentioned. He also know that it is a subject dear to his heart. The collection mentioned the importance of digital technology. I will is designated as being of national importance; it is need to write to him regarding his question on support deemed by UNESCO to be one of the UK’s top 20 for the conservatoires. cultural assets. The collection holds several separate Some in the past have suggested that philanthropy but nevertheless interrelated collections. It includes is a means to replace public spending. Let me tackle not only the most comprehensive accumulation of this head on. It is simply untrue. As soon as this Wedgwood ceramics in Britain, if not the world, but Government came to power, we carried out a also a huge range of portrait medallions from the comprehensive spending review as part of our strategy, 1780s through to today and some exceptionally rare whereby arts and cultural bodies such as the Arts and important surviving original stonework block moulds. Council, English Heritage and our major national This is why the DCMS Culture Minister is working museums knew the level of funding that they would hard behind the scenes, holding meetings in recent receive over the period. We then encouraged the Arts days with other government Ministers. Council to make the bodies that it supports aware of I turn to the question of libraries. Between 2005 their budgets at the earliest opportunity, a request that and 2010, there was a steady decrease in the proportion it carried out in a speedy and professional manner. of adults visiting public libraries. However, over the This was not an easy time for the sector or the Arts past two years visits have remained stable and it is very Council. Here, I pay tribute to the chair and chief encouraging to see that the downward trend has slowed. executive of the Arts Council for the way in which it A figure of 600 library closures is regularly quoted in handled some difficult decisions. It is right not to the media, but this is misleading because it includes assume that organisations that have received regular libraries where a local authority is merely consulting funding in the past should have a right to that funding on a library’s future service and it assumes the worst-case in the future. scenario. It also includes libraries that have passed The third part of our strategy is to draw new into community management. audiences into the arts by, for example, utilising new Before I conclude, I turn to one or two other technology. Last May, Arts Council England, in comments from your Lordships. I pay tribute to the partnership with the BBC, launched a new free digital contribution from my noble friend Lord Lloyd-Webber, arts service, the Space, which could help to transform who has given incalculable support to arts and culture 995 Arts and Culture[LORDS] Justice and Security Bill [HL] 996

[VISCOUNT YOUNGER OF LECKIE] A characteristic of the Intelligence and Security not just in the UK but also globally. I do not entirely Committee is that the agencies convey to it a good share his view of the arts in Britain, but I entirely deal of information which would not be confided to a agree that we need to nurture creative talent so that normal Select Committee. The ISC would be dismayed Britain continues to lead the world in this area. I also if that practice were to cease because this provision pay tribute to the noble Lord, Lord Hall of Birkenhead, was in the Act. Therefore, I ask the Minister to give an for the work that he has done towards the Cultural example or examples of the sort of information that Olympiad, which was also highlighted by the noble this sub-paragraph is included in the Bill in order to Earl, Lord Clancarty, and the noble Baroness, Lady protect. If the box were empty, it would be a pity to McIntosh of Hudnall. I would turn very briefly to have it in the Bill—indeed, doing so would make it Brazil and the Scottish television questions, but I have poor legislation. However, if the Government have in run out of time. mind information other than security information which In conclusion, I have attempted to answer as fully should not be confided to the Intelligence and Security as possible on the specific focus of the debate, namely Committee, I know that the ISC would be very happy the Government’s long-term strategy for the arts and to consider that point. culture sector. We take our responsibility to the future of arts and culture very seriously. With our focus on The Marquess of Lothian: My Lords, I wish to add financial stability, philanthropy and new audiences, briefly to what the noble Lord, Lord Butler of Brockwell, we shall create the opportunity for everyone to enjoy has said. I am puzzled by this sub-paragraph because and participate in artistic and cultural performances it does not say “information other than national security”; and attract foreign visitors for many years to come. it says, “not limited to national security”. Justice and Security Bill [HL] That suggests that anything that cannot be allowed to go to another Select Committee should not be given to Committee (1st Day) (Continued) the Intelligence and Security Committee. We debated earlier why the ISC should not be a Select Committee, 8.38 pm and one reason is so that it can receive information Moved by Baroness Stowell of Beeston which cannot be passed to an ordinary Select Committee. That the House do now again resolve itself into It may be that this provision is very well meaning and Committee. that it touches on advice given to Ministers or on other matters where I think we would all accept there Baroness Stowell of Beeston: My Lords, in moving have to be limitations. However, I wonder whether the this Motion, I should like to refer briefly, for the draftsman has this slightly wrong. One reason for benefit of all noble Lords, to interventions during the asking for the sub-paragraph to be deleted is in the moving of amendments. During the previous session hope that the Minister, along with the draftsman, will of the Committee earlier this afternoon, there were look at it again and come back with something which four occasions when Peers intervened on noble Lords meets what I think the sub-paragraph is trying to as they were moving amendments and there was a mix achieve in meaning but which it does not achieve at the of reactions from around the Chamber and indeed the moment. Table. I thought it might be helpful to explain that it is permissible to intervene on a noble Lord when he is Lord Campbell-Savours: My Lords, this concerns moving an amendment, particularly to ask a specific precisely the same query as I had during our debate on question for clarification. However, it is not customary the previous amendment—that is, I cannot understand to do so in this House because once a noble Lord has what the provision is referring to, although I recognise moved his amendment, it is permissible for noble the wording. The wording comes from the draft of Lords to intervene as many times as they wish during something else that I have read and it must already be the debate at Committee stage. I thought noble Lords known to the agencies. Therefore, some briefing must might find that clarification helpful. have been given to the Minister regarding the source and why its inclusion in the Bill is warranted. Perhaps Motion agreed. even now at this late stage I can, on a second occasion, ask for the same information. I should like to know Amendment 24 the answer. It may be that the provision should simply Moved by Lord Butler of Brockwell be redrafted in language which simpletons such as myself can understand. However, at the moment I do 24: Schedule 1, page 14, line 31, leave out paragraph (b) not understand what it means. Lord Butler of Brockwell: My Lords, this is a probing 8.45 pm amendment. Before the dinner break, we were discussing the circumstances in which information might be withheld Baroness Hamwee: My Lords, I have Amendment 25 from the Intelligence and Security Committee on grounds in this group but I had not given much thought to of national security. Paragraph 3(3)(b) refers to the sub-paragraph (b), the subject of Amendment 24, withholding of information other than on grounds of other than to note it in general terms. A question national security, and the purpose of the amendment occurs to me, however, as it is being discussed, as to is to inquire of the Minister what sort of other information whether it is normal—perhaps I should not say this sub-paragraph has in mind. “appropriate” as I do not want to be judgmental—for 997 Justice and Security Bill [HL][9 JULY 2012] Justice and Security Bill [HL] 998 primary legislation to refer to a procedural matter in informed view not about policy but about other matters this way and incorporate it into primary legislation. I to the committee. I do not understand whether any will leave that there. practice is laid down on how that should be done and My Amendment 25 proposes an exclusion if we are what the limits are when a Select Committee seeks to have decisions by Ministers as to what should not such evidence. be disclosed. My noble friend Lord Thomas put his Under the previous Government, when Andrew name to the amendment without realising, as he has Dismore was chairman of the committee, we dealt just now prompted me, that my drafting is sloppy and with administrative detention without trial. We tried it should have started “or (c)” and not just “(c)”. I to get help from the security services. We were helped apologise to the Committee for that. The information to some extent by the police service and we took which could not be disclosed would be information evidence in camera from the police on some matters to relating to conduct which might be a, do with counterterrorism. However, we were told that “breach of UK or international law”. we could not do that with the intelligence and security I refer specifically to, services. “the European Convention on Human Rights, the United Nations As I said, I do not expect an answer now, but it Convention against Torture and other Cruel, Inhuman and Degrading would be helpful if, between now and Report, we Treatment”. could be informed by letter of what the Government The wording is not original to me. It was suggested by consider to be the general position on those issues. Amnesty International. It was a good suggestion. I Certainly, if there is wrongdoing of a serious kind know that there are other noble Lords in the Chamber involving the sorts of issues covered by the amendment who have far more experience of these issues than I of my noble friend Lady Hamwee, and if that sort of do. It occurred to me that the Minister might say that material is not to be shown either to this or any other any such breach should not be dealt with in this way parliamentary committee, and is to be barred from, or and if there was a claim by an individual about a limited in, legal proceedings, I am troubled by the lack breach that would be a matter for the court. Perhaps of accountability of the Executive to the judicial branch this amendment needs further thought. I would be of government as well as to Parliament itself. concerned to be sure that the Government did not withhold such information. This at any rate might be a start and we will get the Minister’s comments. Lord Thomas of Gresford: My Lords, my question to the Minister is: what is meant by “proper” in Lord Lester of Herne Hill: My Lords, I rise as paragraph 3(3)(b) of Schedule 1? One has to postulate probably the least knowledgeable and competent person a situation where a Select Committee, for example on to say much about this but I do so because of my health, asks for disclosure from a Minister, who says, experience as a member of the Joint Committee on “I would love to give you the information but it would Human Rights. I am glad that the noble Lord, Lord not be proper—it would be contrary to propriety”. Butler of Brockwell, has raised the issue. I do not What does the word mean? Proper in what sense? expect an answer to my question this evening but it Would it be immoral or illegal? What is the word would be helpful if before Report stage what I am supposed to convey? I simply do not understand and about to ask could be answered. would be grateful if the Minister would help me. I am mystified about the principles that should apply not to the ISC but to parliamentary Select Baroness Smith of Basildon: My Lords, I think that Committees generally. When we come to consider the there is unanimity around the House about the questions Norwich Pharmacal matter, we will be considering that need to be addressed in connection with the extent to which courts should not be able to order Amendment 24. Our concern is that the Government the disclosure of documents that might show serious may have lowered the threshold for proving that wrongdoing of the kind indicated in the amendment information should be withheld. Under the Bill, the of my noble friend Lady Hamwee because of the Secretary of State will decide whether information is harm to national security or international relations. too sensitive to disclose or is of such a nature that it To that extent, the Executive would be less accountable would not be proper to disclose it to a departmental to the courts than at present. The question then arises Select Committee. However, where the Intelligence of the extent to which the Executive should be accountable Services Act 1994 prevents the Secretary of State to Parliament and especially to parliamentary committees. vetoing the disclosure of information on grounds of I understand why the committee we are concerned national security alone, now national security is just with should be treated differently from the ordinary one of the conditions under which the Secretary of parliamentary Select Committee for very good reasons State may use their veto. I support the amendment of to do with Clause 2 of the Bill. My question is: what the noble Marquess, Lord Lothian, and the noble ought to be the position with other parliamentary Lord, Lord Butler of Brockwell, because I share their Select Committees? The noble Lord, Lord Campbell- curiosity about what a consideration that it is not Savours, has tabled an amendment dealing with that proper to disclose information to a departmental Select general issue. Committee would mean in practice, and why the provision It would be very desirable if there were a practice of it not being proper to do so is seen as a necessary direction of some kind, whether in the Ministerial alternative to non-disclosure on the grounds that the Code or elsewhere, that indicated what needs to be information is sensitive and affects national security. I done when a Select Committee seeks evidence of a would be grateful if the Minister would look at this non-sensitive kind and a security service gives an again. 999 Justice and Security Bill [HL][LORDS] Justice and Security Bill [HL] 1000

[BARONESS SMITH OF BASILDON] The provision gives the Minister of the Crown Amendment 25 in the name of the noble Baroness, discretion only to withhold material. In exercising that Lady Hamwee, disallows the use of the ministerial discretion the Minister would, of course, have regard veto on disclosure of information when it refers to to the provisions that the ISC has for keeping material conduct that would amount to a breach of international confidential. For this reason, we would expect these law. I am curious about how that would work in powers to be used sparingly and only in exceptional practice. Who would determine whether the conduct circumstances. They have only been used sparingly in to which the information relates could amount to a the past and we expect this to continue. However, it is breach of international law? I find it difficult to understand important that those safeguards are retained. how a Secretary of State would make that judgment My noble friend Lord Thomas also asked for the on the actions of her own Government. I understand definition of “proper” in paragraph 3(3)(b). That is the principle behind it but I am not clear how it would something I would ask that we look at again in relation work in practice. If the Minister would explain what is to the concerns over the drafting of the Bill. With that meant by “proper”, that would be very helpful. explanation, I hope the noble Lord will feel it is not necessary to move his Amendment 24. The Minister of State, Home Office (Lord Henley): Amendment 25 would introduce a limitation on, or My Lords, the noble Lord, Lord Campbell-Savours, exception to, the powers of the Secretary of State or a suggested that this amendment was similar to the Minister of the Crown to withhold information from previous one. He is right, but we have been allowed to the ISC, under paragraphs 3(1)(b) or 3(2)(b) of Schedule 1. have a one-hour break to have something to eat between The exception would apply wherever the information that previous amendment and this one. It is similar to requested by the ISC relates to conduct which may that amendment. He also said that he was somewhat amount to a breach of UK or international law. confused by it. He is not the simple Scottish lawyer Various noble Lords spoke very strongly about this that my noble friend Lord Lothian is, but my noble at Second Reading, and I know there are concerns to friend also got it right when he said that it was possible ensure that the new ISC can operate as effectively as that the draftsman had got it wrong. If that is the case, possible in future. Other amendments would obviously obviously I will ask the appropriate officials to look at have the effect of removing entirely the powers of the it again to ensure that we have got the drafting right. Secretary of State or a Minister of the Crown—we Before I come to the substantive part of the discussed that in an earlier amendment—to withhold amendment, may I also make it clear to my noble information from the ISC. This amendment is an friend Lord Lester that we will try to address his alternative, therefore, to those amendments. points about general aspects of dealing with Select Committees between now and Report? I cannot give 9pm any guarantee of that but I certainly hope to do so. I appreciate the intention behind the amendment There are a number of very long-standing conventions but I should like to make a number of points in that have developed in Parliament in the relationship response. It seems that the purpose of the amendment between Select Committees and successive Governments. is to ensure that information cannot be withheld from Those conventions recognise that there are categories the ISC if it relates to potentially unlawful conduct on of information that may, in certain circumstances, be the part of the agencies or other parts of the Government’s withheld from Select Committees on grounds of public intelligence community. However, the effect of the policy. exception would not be limited in this way whenever The noble Lord, Lord Butler, asked for particular information requested by the ISC relates to potentially examples. All I can say at this stage is that examples of unlawful conduct by any person or—at least when it the type of information are given in the Cabinet Office comes to potential breaches of international law—any guide Departmental Evidence and Response to Select foreign state on which intelligence is held. Given the Committees. Some noble Lords may know this guide nature of the work carried out by the agencies, particularly by its other name, the Osmotherly Rules. I do not in the field of counterterrorism, it will be appreciated know those intimately but I look at the smile on the that such an exception is likely to apply to a great deal face of the noble Lord and I suspect that he was of information held by the agencies and other intelligence probably the one who drafted them some years ago. bodies. He shakes his head. But he knows them well. The It is worth reminding the Committee of the kinds categories of information set out in that guide include of information that could be withheld from the ISC information about matters which are sub judice, according to the provisions of the Bill. A Minister of information which could only be supplied after carrying the Crown, a Secretary of State or whoever may out substantial research or at excessive cost, and papers decide that information should be withheld if it is of a previous Administration. sensitive information which, in the interests of national The sub-paragraph of the Bill that the noble Lords security, should not be disclosed to the ISC. Sensitive propose be left out and which my noble friend asks information is defined in paragraph 4 of Schedule 1. It that we have the draftsmen look at again is a necessary includes information about sources and operational part of the Bill. It provides a basis for withholding methods, and information subject to the control these categories of information from the ISC. If the principle—that is, information provided to the United relationship between the ISC and government is to Kingdom by or on behalf of another country where reflect the relationship between a Select Committee and that other country does not consent to disclosure of the Government, then it seems to the Government the information. The Committee will appreciate that tobeessentialtohavethissignificantaspectof therelationship. information in these categories is of the utmost sensitivity. 1001 Justice and Security Bill [HL][9 JULY 2012] Justice and Security Bill [HL] 1002

None the less, sensitive information must still be words mean. Anyway, if I say it means that, that is provided to the ISC when requested unless the what it does mean—that, I think, is what the Humpty- Minister is satisfied that the information should not Dumpty approach is. be disclosed to the ISC in the interests of national I do not think that I can add much more to my security. Accordingly, in coming to a decision about response to the noble Lord and other noble Lords. I whether or not to withhold sensitive information, the appreciate the intention behind Amendment 25. I Minister will take account of the nature of the ISC, appreciate what my noble friend is doing but I hope the important oversight functions it performs and the that the noble Lord will feel able to withdraw his mechanisms it has to safeguard sensitive information. amendment at this stage. With the exception that this amendment would introduce in place, Ministers would be left without a power to Lord Thomas of Gresford: As the noble Lord, Lord withhold a significant category of sensitive information Henley, was speaking I wondered whether the word, in those exceptional circumstances where the disclosure “proper”is supposed to mean “contrary to convention”. of information, even to the ISC, would be damaging It would be impossible to have a convention across all to national security. departments where there are Select Committees so it Currently, agency heads can make a decision not to was conventional in one department to release this disclose information to the ISC on the basis that it is information but it might be conventional in another to sensitive and they consider that it would not be safe to release more or less. It would be almost impossible to disclose it. Again, as noble Lords who have served on get a standard of disclosure of information across the the ISC will know, these powers have been used very board which it is proper to disclose. I am very grateful rarely in the past. We expect the equivalent powers in for what the Minister has said on that issue. the Bill, which make these decisions ones for Ministers Lord Butler of Brockwell: I am grateful to the rather than agency heads, as we have discussed, to Minister for saying that he will, with counsel, look at continue to be used sparingly and only in exceptional the drafting of this again, because it is clear from the circumstances. However, it is important that these contributions that were made to the debate that many safeguards are retained as there will continue to be of us do not understand entirely what is meant. I do, material the nature of which is so sensitive that access indeed, remember the Osmotherley Rules very well. I to it must be very narrowly restricted in the interests of did not draft them myself—not surprisingly they were national security. drafted by an official called Edward Osmotherley—but The ISC’s oversight role is not designed to supplant I do remember invoking them before Select Committees the role of the courts. on various occasions and I do recognise as valid categories the categories that the Minister has mentioned. Lord Lester of Herne Hill: I understand all of However, I think that the noble Lords, Lord Lester that in the context of sub-paragraph (3)(a), which is and Lord Thomas, have a good point when they say carefully drafted and limited. However, I do not that, as drafted, this appears to be entirely subjective understand how it applies to the sub-paragraph that on the part of the Minister and the Minister, under has been questioned by the noble Lord, Lord Butler of this power, would be able to withhold anything which Brockwell, because that does not deal with sensitive in his opinion was not proper. The Osmotherley Rules information as defined in sub-paragraph (4) but simply were instructions from Ministers to officials, but were, states that, I think, generally accepted by Select Committees—not “it is information of such a nature that, if the Minister were always; they were sometimes challenged—and were requested to produce it before a … Committee … the Minister certainly the rules by which officials were guided. would consider (on grounds which were not limited to national They were known and became accepted. The way that security) it proper not to do so”. this is drafted introduces a more subjective element. Unless I am completely wrong, that seems entirely On the basis that the Minister has said he will look subjective. It certainly would not be subject to judicial at the drafting and also that he assured the House that review. It is a Humpty Dumpty: when I use a word it it is intended that the Minister will use this discretion means whatever I say it means, nothing more. To use sparingly, I beg leave to withdraw the amendment. an example from Ring Lardner: “‘Shut up’, he explained”. It is standardless and would cover anything the Minister Amendment 24 withdrawn. thought about propriety. Surely that cannot be a Amendments 25 and 26 not moved. proportionate way of having a safeguard. Amendment 27 Lord Henley: I do not think that the noble Lord, Moved by Baroness Hamwee dare I say it, listened to what I was saying earlier about this amendment. It may be that we need to look at the 27: Schedule 1, page 14, line 46, at end insert— drafting. I have given a commitment to the Committee “(6) In this paragraph “information” includes documents and other material whether held in documentary, electronic or other that we will deal with that in due course and look to form.” see whether we have got it right. As I explained—I have to go back into my speech—I think that that is Baroness Hamwee: Amendment 27 will not take long probably the right way to proceed. If the noble Lord is —under a minute. The amendment seeks confirmation accusing me of taking a Humpty-Dumpty approach, that in this paragraph in Schedule 1 “information” well, Humpty Dumpty was not always that wrong includes the items listed. I cannot believe that it does with some of these things; certainty in terms of when not. Perhaps the Minister can even reply within the one is speaking at the Dispatch Box and defining what minute. I beg to move. 1003 Justice and Security Bill [HL][LORDS] Justice and Security Bill [HL] 1004

Lord Henley: I can be very brief. I can offer an That is in line with the wording in paragraph 4 of assurance to my noble friend that “information”includes Schedule 1 to the Bill, which defines sensitive information documents and other material whether held in as, documentary, electronic or other form. I hope that “information which might lead to the identification of, or provide with that reassurance my noble friend will accept that details of, sources of information, other assistance or operational the term “information” in the Bill includes all the methods available to— matters that she lists. (i) the Security Service, (ii) the Secret Intelligence Service, Baroness Hamwee: I beg leave to withdraw the (iii) the Government Communications Headquarters, or amendment. (iv) any part of a government department, or any part of Her Majesty’s forces, which are engaged in intelligence or security Amendment 27 withdrawn. activities”. The wording in the amendment makes Clause 2(2) less Amendment 28 not moved. vague and more specific. If the Minister does not like the amendment, perhaps he could set out what, Schedule 1 agreed. “other activities of Her Majesty’s Government in relation to intelligence or security matters”, are not covered by the amendment and by Clause 2(1). Clause2:Mainfunctions of the ISC Perhaps he could also say why the Government prefer to spell out some areas of examination or oversight by the ISC in a subsequent memorandum of understanding, Amendment 29 rather than spell them out in the Bill. I beg to move. Moved by Lord Rosser 9.15 pm 29: Clause 2, page 2, line 8, leave out from “oversee” to end of line 10 and insert “any part of a government department, or any Lord King of Bridgwater: My Lords, that was a part of Her Majesty’s forces, which is engaged in intelligence or rather savage attack on the Government, which was security activities” not entirely justified. I thought there was a general recognition in the House that what the Government Lord Rosser: My Lords, Clause 2(2) states: are doing in this clause is recognising the situation that “The ISC may examine or otherwise oversee such other has already developed. The ISC started with a fairly activities of Her Majesty’s Government in relation to limited remit under the Intelligence Services Act 1994. intelligence or security matters as are set out in a memorandum of Progressively, through such things as the DIS in the understanding”. Ministry of Defence, JIC and access to JIC assessments, This follows Clause 2(1) which states that: bringing in the Comptroller and Auditor-General to “The ISC may examine or otherwise oversee the expenditure, assess the financial operations of the agencies—a whole administration, policy and operations of — lot of different ways—the committee expanded its role (a) the Security Service, and activities in a way that was entirely sensible, in (b) the Secret Intelligence Service, and which people collaborated, and which was accepted by (c) the Government Communications Headquarters”. the agencies and the Government. The issue arises as to what are these, I do not know whether there is something frightfully “other activities of Her Majesty’s Government in relation to subtle in the amendment that the Opposition have intelligence or security matters”, tabled and how far it is significantly different from what the Government have already put in the Bill. The that are so vague that they cannot be set out in the Bill, Government are recognising, and it seems quite fair or what are such unknown other activities of Her that it is set out in a memorandum of understanding, Majesty’s Government that not even Her Majesty’s just what the area and remit of the committee will be. Government know what they are. Rather than declare Certainly, in the end—I think it was the experience of them now, the Government want to tuck them away in the noble Lord, Lord Campbell-Savours, as well—— a memorandum of understanding that must be agreed whatever we sought to look into and in the range over with the Prime Minister and not be subject to prior which we sought to expand our activities, I do not discussion as part of this Bill or subsequently approved recall any area in which we were significantly frustrated. by Parliament. This idea of not providing important details when a Bill is published, or within a Bill itself, is becoming a feature of Home Office legislation. We Lord Henley: My Lords, this is the first of a number have seen the same thing with the framework document of amendments that deal with memorandum of which is still awaited under the Crime and Courts Bill. understanding. I start by apologising to the noble It is a most unsatisfactory and lazy approach on the Lord, Lord Rosser, who makes attacks on the Home part of the Home Office. Office for being somewhat remiss in the slowness with The amendment seeks to define what those other which it produces things, particularly in relation to the activities are in subsection (2) which, under this framework document. As the noble Lord is aware, I amendment, would read: have promised that we will have a draft or an outline “The Intelligence and Security Committee may examine or of that framework document before we get to Report otherwise oversee any part of a government department, or any stage of the Crime and Courts Bill. Since that is part of Her Majesty’s forces, which is engaged in intelligence or unlikely to take place in this House before the end of security activities”. October, we have a certain amount of time. 1005 Justice and Security Bill [HL][9 JULY 2012] Justice and Security Bill [HL] 1006

On the memorandum of understanding, as set out worth considering because it would, at the very least, in the Bill, I am grateful for the support of my noble reduce the amount that had to be covered in the friend Lord King on this. It is right that the memorandum memorandum of understanding, and thus reduce the of understanding should spell out the precise remit of amount that could not be debated as part of this Bill the ISC in relation to bodies other than the agencies, and which would not require the approval of Parliament. because the memorandum of understanding can make There has been no offer from the Minister even to provision at a level of detail that is not appropriate for look at this issue from that aspect. It is just a straight primary legislation. This is particularly important because dismissal of the terms of this amendment. I express parts of government departments engaged in intelligence my disappointment at the Minister’s reply—he could and security activities may well be engaged in other have been much more sympathetic and helpful—but I activities besides, which would not properly fall within note his reply and beg leave to withdraw the amendment. the remit of the ISC. Clearly, things change over time. Departments Amendment 29 withdrawn. reorganise. The functions done by one department one year may be done by another the following year. Amendment 30 The noble Lord will remember when his party was in Government, how frequently they changed the names Moved by Lord Butler of Brockwell and the functions of departments. I have completely 30: Clause 2, page 2, line 12, leave out from “as” to end of lost track of the number of changes there were to line 13 departments. One of the things we did very firmly when we came back into office was not to change the Lord Butler of Brockwell: My Lords, Amendments 30 names or functions of departments, except in the most and 32, in my name and that of my colleague the noble marginal capacity. Marquess, Lord Lothian, raise substantial points. I believe the intelligence world is no different to any Amendment 30 deals with the point where the Bill other part of government. For example, as with the cannot mean what it presently says. I will read it out recent Levene report, we could find that future and that will be the best way of making it clear. reorganisations of defence may change organisational Clause 2(3) states: boundaries that affect the MoD’s intelligence activities. “The ISC may, by virtue of subsection (1) or (2), consider any A memorandum of understanding is a flexible document. particular operational matter but only so far as the ISC and the It can be changed much more easily than primary Prime Minister are satisfied that … the matter … is not part of legislation. It will enable the intention of the Government any ongoing intelligence or security operation, and … is of that the ISC should have oversight of substantively all significant national interest”. of central government’s intelligence and security activities The Intelligence and Security Committee accepts entirely to be realised now and, more importantly, in the that those are the two categories of operation that the future should they change. The amendment seeks to committee should—and does—normally look at. I limit that. For that reason I cannot offer any support note that the amendment tabled by the noble Lord, to the amendment. I hope the noble Lord will feel able Lord Campbell-Savours, seeks to remove the ban on to withdraw it. looking at any ongoing intelligence operation. The committee agrees that its oversight of operations should be retrospective and on matters “of significant national Lord Rosser: I thank the Minister for the reply. Of interest”. course, my amendment does not refer to any government However, the effect of the drafting is that when an department by name because it lifts the wording from operation “of significant national interest” is over, the paragraph 4 of Schedule 1, which refers to, agencies should have to get clearance from the Prime “any part of a government department, or any part of Her Minister as well as the ISC before discussing those Majesty’s forces, which is engaged in intelligence or security activities”. matters with the committee. That is not only bureaucratically very intensive but a step backwards From what the noble Lord has said, I am still not quite from what happens now. What happens now is that sure how extensive the areas will be that might be when an operation involving important matters is included in the memorandum of understanding that over, the intelligence agencies, of their own accord, would not be included in the definition that I have report on it to the ISC, which looks into it and given in this amendment, when that is also allied to discusses it with them. The committee has had access Clause 2(1). So I am not sure I have had a very direct to that sort of material for a number of years. In some answer to that question. cases the agencies volunteer it and in other cases the Nor has the Minister addressed the fact that putting ISC asks to see it. I cannot believe that it is the it in a memorandum of understanding means that it intention in such cases, which have been routinely will not be subject to prior discussion as part of this going on, that the Bill should require the Prime Minister Bill. It is a document that the ISC has to agree with the to be consulted whenever the agencies wish to report Prime Minister and, as I understand it, it will not have such matters to the committee. to be approved subsequently by Parliament. The more That having been said, the ISC is content that its reliance that is put on that memorandum of understanding normal purview should be of operations retrospectively and the more information that is put in it, the less where there are significant national interests. opportunity this House has to discuss the issue. Amendment 32 would add a new subsection saying: I would have thought that since the wording I used “The ISC may, notwithstanding subsection (3), consider any has been lifted from another part of his own Bill, the particular operational matter if the relevant Minister of the Minister might at least have accepted that that was Crown agrees to the consideration of the matter”. 1007 Justice and Security Bill [HL][LORDS] Justice and Security Bill [HL] 1008

[LORD BUTLER OF BROCKWELL] a real service to the other place in the fact that this Bill That is simply to give flexibility. As I said, there is no has started here. It is quite clear that there are some difference from the Government’s view that the purview drafting problems. The amendment moved by the should normally be retrospective. However, if it suited noble Lord, Lord Butler, and, indeed, the amendment the Government that the committee should look at an tabled by the noble Lord, Lord Campbell-Savours, are ongoing security operation—this would be at the discretion serious amendments that should be considered. I think of the Government—clearly it would be unfortunate if that the Minister will be doing a great service to his the Bill ruled that out. This is simply to allow flexibility colleagues in the department and may be able to clear on a matter where in general the committee and the up a number of issues. The drafting is not right. It Government are in agreement. could be cleared up now and the Bill will be much simpler and much more appropriate by the time it goes The Marquess of Lothian: If I may, I will quickly to another place. add a word to what the noble Lord, Lord Butler of Brockwell, said. He talked about this provision creating bureaucracy. In my view it could be worse. It could Lord Lloyd of Berwick: My Lords, I regret that I create an enormous log-jam in Downing Street if was not able to take part in the Second Reading of this every single item needed the consent of the Prime Bill. I support Amendment 32 and suggest that in one Minister. The danger then is that the logjam will very minor respect it may not go quite far enough. continue to grow until you get to a stage where information There used to be a body known as the Security that should have been looked at either will not be Commission, on which I served for some years. I looked at or will be looked at so late in the day that it is succeeded the noble and learned Lord, Lord Griffiths, not worth looking at. as chairman of that body and was in due course succeeded by the noble and learned Baroness, Lady Lord Campbell-Savours: My Lords, I have proposed Butler-Sloss. Our main function was to investigate and Amendment 31 not because I want to remove completely report on cases of espionage—selling secrets to the the intent behind the words, Russians and things of that kind. We were appointed “is not part of any ongoing intelligence or security operation”; by the Prime Minister to investigate particular matters but because it needs qualifying further. Under the and, before we were appointed, we had to have the proposals in this clause, it is possible to block much consent of the leader of the Opposition. The noble operational material being brought before the Committee. Lord, Lord King of Bridgwater, will remember those As I read it, the agencies need only declare that a days. I think that it can be said that we did the state matter is, some service. Since the end of the Cold War, espionage “part of any ongoing intelligence or security operation”, is no longer the problem that it was, certainly not in the same way. Therefore the Security Commission has and they can block it and deny access to the committee. not sat for some years. What is the danger in that? It could close the door on a large volume of information. I suggest that it is possible that such cases might Let us take as an example operations in Iraq. Because arise again in the future. If they did, surely the new of the merging of operations, one could simply group security committee would be the obvious body—the an operation, which the committee might regard as ideal body—to carry out such an investigation. That one that it should be considering, with other operations being so—if it is so—I am concerned that Clause 2, in Iraq but merge them under a single operation even with the amendment suggested by the noble heading and, by taking that action, avoid bringing Lord, Lord Butler, might not be quite right to enable information about those operations before the committee. that to happen. It might or might not be, strictly Therefore, merged operations may well hide information speaking, an operational matter of MI6. from the committee to which it should have access. My suggestion would be to add a very few words to The same would apply to operations in Afghanistan. Clause 2(4). After the word “functions”, one could It could certainly apply to operations relating to drugs add, “or the functions formerly performed by the in Colombia and, without doubt, it could refer to Security Commission”. That would be in line 20. operations in Northern Ireland. Simply the declaration Future historians would no longer have to worry that they were merged under one operation would about whatever happened to the Security Commission mean that the committee could be denied information. and we would have given that body what one might I wondered whether the services were aware of this call a decent burial. I had drafted an amendment to when they were making their submissions during the that effect, but I was too late to put it down this drawing up the Bill, so that they were prepared to morning. I would be happy to move such an amendment concede the principle of access to operational information. on Report, if it were to find favour. That brings me back to my model, because it is only if the chairman of the committee has access to everything Baroness Smith of Basildon: My Lords, this that that possible problem can be avoided. The chairman certainly seems a very sensible and practical group would be in a position to argue with the agency about of amendments. Amendment 30 would remove the whether the merging of operations was denying Prime Minister’s involvement in the assessment of information to the committee. whether a matter that the ISC wished to consider satisfied the criteria of being of significant national 9.30 pm interest and not part of an ongoing operation. I fully Lord King of Bridgwater: My Lords, as I consider support the extension of the ISC’s statutory remit to our proceedings in this Committee stage of the Bill, I include particular operational matters; it is a function increasingly think that your Lordships’House is providing that the committee, in practice, already performs. We 1009 Justice and Security Bill [HL][9 JULY 2012] Justice and Security Bill [HL] 1010 also understand the necessity of constraining this about the Security Commission, which he said that he remit. I think that the noble Lord, Lord Campbell-Savours, chaired and which was later chaired by the noble and in speaking to his amendment, made that point, too. It learned Baroness, Lady Butler-Sloss. is necessary to ensure that the committee’s work is I hope that the Committee will bear with me if I focused on areas of significant national interest and explain in some detail just what we are trying to do does not jeopardise ongoing operations. The determination and what we think is wrong with the amendments. I of whether an operation is of significant national hope that noble Lords will also accept that, as I just interest and whether it is not currently ongoing are said, we are more than happy to look at matters objective judgments. One is a decision about what is of relating to drafting again, because we want to get this interest to the public, which the committee is surely right. best placed to judge, and the other is a statement of The Bill extends the ISC’s statutory remit and makes fact, which would simply involve consultation with the clear its ability to oversee the operational work of the relevant government agencies. It is not a process of security and intelligence agencies. This is an important negotiation with the Prime Minister. and significant change and will be key to ensuring that It is unclear to me why this assessment cannot be the ISC continues to perform an effective oversight left to the discretion of the committee without needing role. With this formalisation of its role in oversight of the involvement of the Prime Minister. If the key operational matters, we would expect the new ISC to point of the reforms in this legislation is to establish a provide such oversight on a more regular basis. clearer independence of the committee from the Prime In the Bill, the ISC may consider any particular Minister and a closer connection with Parliament, operational matter, but only so far as the ISC and the then requiring the ISC to seek the permission and the Prime Minister are satisfied that the matter is not part agreement of the Prime Minister before determining of any ongoing intelligence or security operation and whether a specific operational matter lies in its remit is of significant national interest. The ISC’s oversight sends a completely wrong signal about the independence in this area must be retrospective and should not of the ISC. involve, for instance, prior knowledge or approval of We also give full support to Amendment 32, which agency activity. Consideration of the matter must also would provide important flexibility to the committee’s be consistent with any principles set out in, or other powers to view specific operational matters. We have provision made by, a memorandum of understanding. consistently argued that the ISC should be given the We will discuss that again in due course. power to review specific operational matters, such as Of course, the ISC is not the only body that oversees control orders, while recognising that limitations may the operational activity of the agencies. The Prime apply with respect to ongoing operations where the Minister has overall responsibility within government committee’s work may jeopardise the integrity of those for intelligence and security matters and for the agencies. operations. An absolute ban on considering any ongoing Day-to-day ministerial responsibility for the Security operational matters seems to us to be unnecessarily Service lies with the Home Secretary and, for the heavy-handed. It is easy to imagine particular cases of Secret Intelligence Service and GCHQ, with the Foreign significant public interest, perhaps where the majority Secretary. The Home Secretary is accountable to of the operation has been concluded but there is still Parliament, and therefore to the public, for the work some ongoing activity that cannot be reviewed by the of the Security Service; similarly, the Foreign Secretary committee, even if the Government agree that there is has his accountability. no risk. Amendment 32 would be a highly sensible alternative to the blanket ban by allowing the committee, The Intelligence Services Commissioner provides with the agreement of the Secretary of State, to review oversight of the use of a number of key investigatory certain ongoing operations. I agree with the noble techniques employed by the agencies and by members Lord, Lord King of Bridgwater, that there seems to be of Her Majesty’s forces and Ministry of Defence a drafting deficiency. I hope that the Minister can give personnel outside Northern Ireland. The Interception a more positive response to this group of amendments of Communications Commissioner’s central function than he was able to for the last one. is to keep under review the issue of warrants for the interception of communications. On Amendments 30, 31 and 32, the first amendment Lord Henley: My Lords, first, if there are any would have the effect of leaving it solely to the judgment drafting concerns about this Bill, as I hope I made of the ISC to decide when the criteria for considering clear at an earlier stage, we will be more than happy to a particular operational matter are met. The noble look at them. This is what this House does very well Lord, Lord Butler, is a current member of the Intelligence and the debates that we have been having this afternoon and Security Committee and, as such, speaks from a are indicative of that. We will take these points on position of great knowledge. However, I hope that he board and the similar drafting points made by my would agree that the judgment as to whether an noble friend Lord Lothian. operational matter meets the criteria is one that should Secondly, I understand that the noble and learned be for both the ISC and the Government and not just Lord, Lord Lloyd, tried to table an amendment earlier for one or the other. It is very important that we get today but I think that he missed the boat. I suppose this judgment right. that he could still have put down a manuscript amendment—fortunately, he decided not to—but he Lord Butler of Brockwell: It may be worth making will come back to that in greater detail on Report. the point that the amendment does not leave it solely Certainly we will listen to his remarks in due course to the judgment of the ISC; it just says, as a matter of 1011 Justice and Security Bill [HL][LORDS] Justice and Security Bill [HL] 1012

[LORD BUTLER OF BROCKWELL] that they would be able to use this issue of merged fact, that the operation has concluded or is of national operations as a way of avoiding giving information to significance. So it would not just be the ISC that the committee. The Minister is saying nothing here to decided that—it would be the fact. If I may say so, the reassure me. Perhaps he will give us more detail on Minister misunderstands the purpose of the amendment. Report about what constitutes “ongoing” in the way which the noble Lord, Lord King, has suggested. Lord Henley: I apologise to that extent if I have misunderstood what the noble Lord was getting at in Baroness Hamwee: My Lords, on that subject, when his amendment and I hope that I did not mislead the the Minister considers the word “ongoing”, will he tell House in so doing. The Government’s intention, on the House whether it covers a longer period than that memorandum of understanding, which has to be “current”? I think I would have understood “current” agreed by the Government and the ISC, is that it will investigations. be the appropriate vehicle for agreeing the process to ensure that the information is provided to the committee Lord King of Bridgwater: Or currently ongoing. in an appropriately prompt manner. The amendment in the name of the noble Lord, Baroness Hamwee: Maybe. The Minister says it has Lord Campbell-Savours, would remove one of the key not been traditionally considered and is one of those restrictions on the ISC’s new power to oversee agency words that only recently has come into normal use. It operations, namely the requirement that its oversight probably means slightly different things to different of operations should be retrospective. The extension people. in the Bill of the ISC’s statutory remit into the agencies’ operational work is a significant deepening of the Baroness Manningham-Buller: I think the problem committee’s powers. While the ISC has in the past is the word “operation”. Certainly in the security and conducted inquiries into operational matters with the intelligence world, an operation is something finite, agreement of the Prime Minister, such as its inquiries with a code name, that will come to an end. I think into the London bombings of 7 July 2005 and into that is what the legislation is trying to get at. It rendition, the provisions in the Bill provide a formal certainly would not be a merged operation such as a remit for the committee in this area. We anticipate that jihadist threat or Iraq, which would not be seen in the new ISC will provide such oversight on a more those terms. That may be the difficulty. If we can make regular basis. that clear in defining it, that might be helpful to the We have worked with the current ISC to develop Minister. the new arrangements, and the committee agrees with the Government that its oversight of operations should Lord Henley: I am grateful to the noble Baroness be retrospective in nature. In other words, the ISC for her intervention. I am also grateful to my noble should not oversee operations that are ongoing. There friend Lady Hamwee for her suggestion that “current” are a number of very good reasons for this. might be a better word than “ongoing”. “Ongoing” is not a word that I would necessarily have wanted to use Lord King of Bridgwater: This is my concern about and is not one that I have come across much before in the drafting: what is an ongoing operation? Is it 7/7 legislation. “Current” might be a better term and and the follow-up; or is it the jihadist threat that exists might be one of the reasons why we need to look at the and which we think possibly continues to exist at this drafting of these matters, to make sure that we have time, with the Olympics coming up and the heightened got it absolutely right. For that reason, all I can say is security alert that will continue afterwards? What is an that we will look again—the noble Lord, Lord Campbell- “ongoing” security operation? Savours, smiles—at that word “ongoing” and make sure that we have got it right. Again, as a layman and not a simple Scottish lawyer, it seems to me that Lord Henley: My Lords, I am not sure that the “ongoing” is something that we can all understand word “ongoing” has actually been tested in the courts. relatively simply, so I hope we can get this right. That It is in the Bill, which is why I make this point. We have is the point of the processes that we are going through no judicial interpretation of “ongoing”, but I hope the in this House. I hope that we can get it right in due courts would understand and interpret it as the words course. appear in the Bill. Amendment 32 is the third amendment in this group and the second in the name of the noble Lord, 9.45 pm Lord Butler, and my noble friend Lord Lothian, and Lord Campbell-Savours: This has nothing to do would allow the ISC to oversee an operational matter with the courts. This will be a discussion in the committee that does not meet the criteria in Clause 2(3) if the with the chairman and the agencies, which is where we relevant Minister of the Crown agrees to consider the may well end up having an argument. The agencies matter. Given that the requirement is that the Government may say no, or Ministers may say, “No, you cannot and the ISC both need to agree, it is difficult to see have it because it is part of some ongoing operation”. circumstances in which the noble Lords’ amendment They will not know the point at which operations have would ever need to be used. For example, we cannot merged into a long extended operation that might go presently foresee circumstances in which it would be on for a long time. I am quite worried about this appropriate to call on the ISC to put its resources section. I am beginning to believe that the agencies towards examination of operational matters that were might have conceded on this fact because they knew not of significant national interest. 1013 Justice and Security Bill [HL][9 JULY 2012] Justice and Security Bill [HL] 1014

Nor would it be appropriate for the ISC to have a Amendments 31 and 32 not moved. role in approving future actions or decisions relating to the agencies, or to examine ongoing—again I use that word, but perhaps I ought to say current—operations. Amendment 33 Such a role could cut across lines of ministerial Moved by Lord Campbell-Savours accountability and could even have the potential to prejudice those operations. The amendment is therefore 33: Clause 2, page 2, line 24, at end insert— unnecessary. “(d) must be approved by Parliament” I hope that that deals with most of the points. I am sure that it does not, but I have given a commitment Lord Campbell-Savours: My Lords, I shall be very that we will look again at the drafting of this part of brief as the hour is late. I cannot see what the problem Clause 2. I hope that the noble Lord will feel able to is with the Government accepting this amendment, withdraw the amendment. which would simply require that the memorandum of understanding under this clause should be approved by Parliament. It is not as if the memorandum of Lord Butler of Brockwell: My Lords, I am grateful understanding would include security sensitive to the Minister and to other noble Lords who have information. As I understand it, it is simply about taken part in this debate. It has brought to light structures. The parliamentary debate would be about matters that need to be clarified before Report. I the structures that have been established in the detail emphasise again—and I apologise for rudely interrupting of the memorandum of understanding. In addition, if the Minister—that there is no difference between the Parliament were to give approval during the debate, ISC and the Government on what the committee’s Members might want to raise issues not covered in the purview should be. The ISC accepts that its purview memorandum of understanding. One of these might should normally be retrospective and that it should be be regarding the investigator. There was once an confined to matters of significant national interest. investigator to the ISC. If I remember correctly, his What is new about the way the clause is drafted is the name was Mr Morrison, and for reasons I have never interpolation of the Prime Minister in deciding that understood his employment was terminated. Many that is the case. That is unnecessary, and as my colleague, Members called for the investigator to be in place and the noble Marquess, Lord Lothian, said, it would I should have thought this is an example of an area produce the most tremendous logjam and would be a where Members of Parliament might want to question backward step from where we are now. That is the only Ministers. difference, but I hope that that issue can be looked at There is also the issue of access to individual officers again. within the service. When I was on the committee, the If I may say so, the discussion on the amendment of arrangement was that it was primarily the directors of the noble Lord, Lord Campbell-Savours, brings out the services who gave evidence to the committee, although the ambiguity of the word “operations”. As the noble on occasion it was one or two others. It might be that Baroness, Lady Manningham-Buller, said, it is perhaps the memorandum of understanding should be considered because it is a term of art in intelligence speak and by Parliament in the context that there needs to be means something specific rather than an ongoing some flexibility on whether people other than agency exercise. If I may do the draftsman’s work and join the directors—perhaps officers from lower down within noble Baroness, Lady Hamwee, it may be that “specific the ranks—should be called upon to give evidence to operation” might be more helpful than “current” or the committee. I do not know because this is an area I “ongoing”. However, that is a matter for consideration. do not know a lot about. All I am saying is that I think On Amendment 32, I am fortified by a whispered there is room here for a debate in Parliament to conversation with the noble Baroness, Lady Manningham- consider the detail of the structure, and it is something Buller. One can imagine a situation in which it might that we have not debated here today. be useful to Parliament and the nation, and to the My noble friend Lord Rosser dealt in some detail agencies themselves, if the ISC is asked to look at an with these issues during the debate on one of his ongoing, even specific, operation. Let us imagine that amendments and he sought assurances. I do hope that something is going on that has got into the media, is the Minister can explain today why Parliament will creating great concern, there are great sensitivities to not be approving these matters. I understand that the it, but it is urgent that someone should look at the document will be laid before Parliament, but that matter and provide a report to Parliament. That is the there will be no parliamentary debate. I beg to move. sort of circumstance in which my proposal might be helpful. It is discretionary and the decision would be with the approval of the Minister, but it seems a pity Baroness Hamwee: My Lords, I have Amendment 34 not to allow for that sort of situation by making in this group, which uses the formal language of the provision for it in the Bill. affirmative procedure but comes to the same thing as the noble Lord’s Amendment 33. I tabled the Those are the considerations that I would urge amendment in part because I wanted to seek more on the Minister and the Government. With the information about the memorandum of understanding. assurance that he will look at them before Report, I The noble Lord may not have seen it, but the Government am content to withdraw the amendment and not move have today circulated a long note responding to a Amendment 32. I beg leave to withdraw the amendment. number of points raised by noble Lords at Second Reading, for which I thank them. The note includes a Amendment 30 withdrawn. paragraph on the memorandum of understanding in 1015 Justice and Security Bill [HL][LORDS] Justice and Security Bill [HL] 1016

[BARONESS HAMWEE] clear. I believe that the criteria should be matters for response to my question about whether we will be able debate and not simply for the draft, although we look to see a draft of it, or of a framework, to enable forward to it as it will inform debate. Reading this further debate. note, it seems to me that the approach is more top-down than I should like to have seen. Lord Campbell-Savours: Did the noble Baroness say that she had seen a draft document or memorandum of understanding? Perhaps I misheard. Could she Lord Rosser: My Lords, perhaps I may make one clarify what she said? I am sorry I could not hear. brief comment. I have already expressed our views about the memorandum of understanding and I think that in return I was told by the noble Lord, Lord King Baroness Hamwee: No, I said a note from the of Bridgwater, that I was being savage. Government responding to points made by noble Lords I just wish to pursue the point that the noble at Second Reading. Baroness, Lady Hamwee, made about other references in Clause 2 to the kind of content that will be included Lord Henley: Perhaps I may assist the noble Lord. in the memorandum of understanding, which we will It was a note sent out by myself and my noble and not get an opportunity to debate and which does not learned friend Lord Wallace of Tankerness, which I have to be approved by Parliament. Clause 2(3) says: hope went to all Peers who spoke at Second Reading. “The ISC may, by virtue of subsection (1) or (2), consider any If the noble Lord has not received his, he should have particular operational matter but only so far as the ISC and the done and I can only blame the post. Prime Minister are satisfied that … the matter … is not part of any ongoing intelligence or security operation, and … is of significant national interest, and … the consideration of the 10 pm matter is consistent with any principles set out in, or other Baroness Hamwee: My Lords, the Minister should provision made by, a memorandum of understanding”. not blame the post; it came to me by e-mail this One has to bear in mind that this is not a document morning. The post may follow in about three days. I that we will be able to debate and discuss and it will want to put on the record what the note told me and not need to be approved by Parliament unless the other noble Lords who have seen it about the Minister is going to move on this amendment. What memorandum of understanding. It states: are these principles that will be set out in the memorandum “The MoU needs to be agreed between the ISC and the Prime of understanding which we are not going to be told Minister”. about when discussing the Bill and which we are not We know that. It continues: going to be allowed to discuss? “We are starting this process of drafting and agreeing this document, and will do so in parallel”— Lord Henley: My Lords, first, I apologise to the I stress those words— noble Baroness, Lady Hamwee—who is great on drafting. “with the Bill’s passage ... Once we have an agreed draft … it is She has picked out another word—envisaged—which our intention that it is published, to help inform debate”. she has not come across in legislation before. We will The thrust of my amendment is that it should be add that to “ongoing”. I suspect that, like her, I am subject to debate. The Ministers who sent the letter probably an old fogey on these matters. These matters then told us: are new to drafting but develop in the way that they “The matters covered … may include … The factors to be do. We will consult the draftsman on whether he is taken into account in deciding whether a particular operational happy with “envisaged” or whether some other word matter which the ISC might wish to consider is ongoing and/or of could do it. significant national interest … A description of the arrangements by which the ISC will request, be provided with and hold information, It would probably be helpful if I first explain the including the circumstances in which the ISC will be able to access purpose of the memorandum. We believe that it will primary source materials … A description of the role of investigative be an important document in the relationship between staff in the ISC’s work; and … A description of the process for the ISC and the Government. It will define the precise producing an ISC report”. extent of the ISC’s oversight of parts of the intelligence As the noble Lord said, the memorandum of community other than the agencies. It will set principles understanding will be a public document, so it cannot or other criteria that must be met before the ISC can be so sensitive that that is a reason for it not to be consider particular operational matters. It will describe debated. I say to the Committee that today’s debates the arrangements by which the agencies and other have shown how much Parliament—and this House in intelligence bodies will supply information to the ISC. particular—has to contribute to consideration of the We expect that it will also cover matters such as: the criteria that will be applied. We are told in Clause 2(4)(a) factors to be taken into account in deciding whether a that the memorandum of understanding, particular operational matter which the ISC might “may include other provision … which is not of the kind envisaged wish to consider is ongoing, current—or whatever in subsection (2) or (3)”. word we particularly wish to use—and/or of significant That is very wide. I realise that “envisaged” is another national interest; a description of the arrangements by term that I have not come across in legislation before. I which the ISC will request and hold information, do not know whether it means more than “not within”, including the circumstances in which the ISC will be “not as described” or “not subject to” subsections (2) able to access primary source materials; a description and (3). I am beginning to feel like an awful old fogey of the role of investigative staff in the ISC’s work; and in raising these points but legislation should be completely a description of the process for producing an ISC 1017 Justice and Security Bill [HL][9 JULY 2012] Justice and Security Bill [HL] 1018 report. That is what we intend that it should cover. then it will not be subject to any further parliamentary There will no doubt be other matters that will also approval. While I entirely understand that necessarily need to be covered. secure issues in the memorandum may have to be dealt The memorandum of understanding in the Bill with separately, much of what is in the legislation and must be agreed between the Prime Minister and the the memorandum of understanding are the rules under ISC and it can be altered or replaced at any time by which the ISC will operate and the access that it will agreement. It is intended that the first memorandum have. The Minister is very nobly taking on the first cut of understanding will be agreed immediately on the of the Bill, if I may put it like that. The memorandum coming into force of the relevant provisions. As I said, of understanding will have to be looked at again. If it however, we hope that we can give some idea of what covers the first part of what I am talking about, it is going to look like by the time we reach Report. certainly it should be available to Parliament. Either it As is usual for a memorandum of understanding—this should be under consideration while we debate the Bill is not an unusual procedure—there is no parliamentary or it should come up at a later stage, subject to approval procedure. This was looked at by the Delegated parliamentary approval if it is subsequent to the passage Powers and Regulatory Reform Committee and it was of the legislation. perfectly happy with this. While the memorandum of understanding itself will be an unclassified document Lord Henley: My Lords, again I do not think that which will be published and laid before Parliament, its my noble friend followed what I said. We will not precise terms are very likely to be shaped by matters agree the final memorandum until after the Bill has which are sensitive in terms of national security and completed. However, I make it clear that we want to which therefore cannot be made public. In these produce a draft of it at an earlier stage as we complete circumstances, it is particularly appropriate that the our discussions with the ISC. Once we have an agreed memorandum of understanding can be concluded draft, it is our intention to publish it to help inform without the need for parliamentary approval. debate. I hope that this will happen before Report. The Bill is only just starting in this House. It has to go Of course the terms of the memorandum of through another place as well. As discussions on this understanding must be agreed with the ISC. The Bill will be ongoing—I must not use the word “ongoing”—as makes that clear—it is agreed between the Government the Bill is considered by Parliament, it would not be and the ISC. The ISC, we must always remind ourselves, appropriate to share the first draft before at least it has is a committee composed of parliamentarians—nine been agreed by both parties. from both Houses. It could be eight members from this House and one from another, but it might be some My other point is what I said at the beginning of other arrangement, as it is at the moment—seven from my remarks: the memorandum of understanding, having another place and two from this House. As a result of been agreed by the Prime Minister and the ISC, can be the changes that the Bill will bring about the committee altered and replaced by agreement at any time. Since it will be appointed by and accountable to Parliament. is a working document that can move on and be In some ways, requiring these parliamentarians to altered and agreed by the two parties, it would not be seek the approval of the rest of Parliament is a restriction appropriate to constantly put it back to both Houses on the independence of the body. I think that it would of Parliament for debate and agreement. That is not be unusual for Parliament to have such control over the position with other memorandums of understanding. the detailed way in which what amounts to a Select Normally there is no parliamentary approval process. Committee—as the noble Lord, Lord Campbell-Savours, That is why I mentioned that this had been to the is looking for—has decided to conduct its business. Lords Delegated Powers Scrutiny Committee, which, as far as I know, is perfectly happy with the process. We have not yet published the memorandum for the simple reason that the memorandum of understanding Lord Campbell-Savours: I will not delay the Committee. does not exist. We are starting the process of agreeing I am grateful to the noble Lord, Lord King, who this document with the ISC and will do so in parallel clearly understands exactly what is being said—namely, with the Bill’s passage through Parliament. that Parliament will be denied the right to approve the Lord King of Bridgwater: My Lords, I am a little memorandum of understanding. I am sorry that I did confused about the memorandum of understanding. not see a copy of the letter that the noble Baroness, We seem to have slipped into an issue that arises in the Lady Hamwee, was fortunate to receive. It may have second part of Clause 2: operational matters. The truncated my comments during debate on a number of memorandum also refers to overseeing other activities amendments this evening. However, I suspect that we of Her Majesty’s Government in relation to intelligence will have rich pickings in the memorandum and that and security matters. I understand that that is a reference we will come back to it on Report. I beg leave to to the Ministry of Defence, to the CDI—who used to withdraw the amendment. appear before the Intelligence and Security Committee—to the Home Office and to other people who gladly came Amendment 33 withdrawn. and gave evidence. Presumably that is part of the Amendment 34 not moved. memorandum of understanding. There is nothing controversial about this; it merely legitimises and puts Clause 2 agreed. into statute a situation that already exists. If I understand correctly, the Minister is now saying House resumed. that the memorandum of understanding will not appear before the end of the parliamentary process, and that House adjourned at 10.14 pm.

GC 459 Arrangement of Business[9 JULY 2012] Civil Aviation Bill GC 460

Under the Bill, the CAA non-executive members Grand Committee will also determine the terms and conditions on which the chief executive is to be employed and who should Monday, 9 July 2012. be appointed. Other executive members are to be appointed by the chief executive with the approval of the chair and at least one other non-executive member Arrangement of Business who also will have to approve the terms and conditions Announcement under which other executives are employed. The role and importance of the CAA non-executive members 3.30 pm is further enhanced not just by the more influential role that the CAA will have but also by the fact that The Deputy Chairman of Committees (Baroness the Secretary of State and the chief executive must Gibson of Market Rasen): My Lords, if there is a exercise their powers to secure that, as far as practicable, Division in the Chamber while we are sitting, this the number of non-executive members exceeds the Committee will adjourn as soon as the Division Bells number of executive members. are rung and will resume after 10 minutes. So at a time when there is increasing concern about remuneration packages and bonuses; at a time when Civil Aviation Bill CAA non-executives will be involved in the major senior executive appointments and their terms and Committee (4th Day) conditions; at the same time as the role of the Civil Aviation Authority is being increased; and at the same 3.30 pm time as the importance of non-executives is being Relevant documents: 4th Report from the Delegated increased by there being a requirement in this Bill for Powers Committee. the number of non-executives to exceed the number of executive members, the Government decide that this is the appropriate time to remove the oversight that the Clause 96 : Non-executive members of CAA Treasury has on non-executive pay at the CAA. The Treasury can provide a degree of impartiality over decisions on the remuneration of Department for Amendment 64 Transport appointees, as well as having knowledge Moved by Lord Rosser of what remuneration levels are for non-executive members appointed through other departments of 64: Clause 96, page 59, line 32, leave out paragraph (b) state. The Government’s logical does not add up. I beg to move. Lord Rosser: My Lords, the purpose of these amendments is to stop the Bill from apparently removing the Treasury’s oversight on non-executive pay at the Earl Attlee: My Lords, I am grateful for the explanation Civil Aviation Authority, which was provided for in given by the noble Lord, Lord Rosser, and I hope that the 1982 Act that established the CAA. Under the I can clarify the Government’s position on these probing Bill’s proposals, decisions on pay, allowances, pensions amendments. In the current political environment and or gratuities will be determined solely by the Secretary with the public interest in these matters, I can quite of State for Transport. understand why the noble Lord has tabled them. Following recent failures to take action over excessive There are several reasons why I cannot support all pay until forced into it by political and public pressure, these amendments, to which I will come shortly. By as with RBS and Network Rail where the Secretary of way of background, the changes introduced by the State for Transport initially denied that she could do Bill that these amendments seek to overturn complete anything about the level of bonus payments to top a series of governance reforms recommended by executives, there should not be any weakening of Sir Joseph Pilling following his 2008 strategic review oversight on remuneration payments. At this time of the Civil Aviation Authority. Sir Joseph’s conclusion of increased and justified public concern about levels was that the involvement of two government departments of pay and bonuses, it is hardly appropriate for the in remuneration decisions was unnecessary. He said: Government to be seeking to remove a layer of checks and balances on the setting of CAA non-executive “In evidence to the review the Treasury explained that the CAA was the only regulator it looked at in this way … The board members’ pay. statutory requirement for the Treasury to approve the Civil The CAA non-executive members were paid varying Aviation’s members’ remuneration and pensions is an anomaly. amounts up to some £77,000 in 2010-11. Non-executive I recommend that the Department for Transport seek to amend board members are not there simply to make up the the legislation so that the responsibility lies solely with the numbers or to add a veneer of outside independence Secretary of State”. and challenge. They are there as critical friends to He also asked the Department for Transport challenge and question the senior executives on both to consider the approach of some other UK the policies that they are pursuing and the policies that regulatory bodies where the board appoints executive they are not, including accounting and financial policies, directors without ministerial involvement. The previous and to ensure that appropriate corporate governance Government accepted those recommendations and arrangements are not only in place but are being consulted on the proposals reflected in the Bill. The properly implemented and applied. Government agree with Sir Joseph’s conclusions that GC 461 Civil Aviation Bill[LORDS] Civil Aviation Bill GC 462

[EARL ATTLEE] the oversight of the Treasury is an anomaly that adds Amendment 67 no value. The Committee should note that there is no equivalent requirement for any comparable regulatory Moved by Lord Rosser body, so Clause 96 implements an important aspect of 67: Before Clause 100, insert the following new Clause— the Pilling report. It would remove Treasury involvement “Accounts and audit in approving the remuneration of non-executive members. (1) Section 15 of the Civil Aviation Act 1982 (accounts and Removing Treasury oversight will also remove unnecessary audit) is amended as follows— government duplication; there is no need for two government departments to be concerned with CAA (a) in subsection (1), for paragraph (c) substitute— board remuneration. It will also reduce unnecessary “(c) to send copies of the statement of accounts to the Secretary of State and the Comptroller and Auditor delays in the appointment of non-executive members General before the end of the November following the of the CAA. accounting year to which the statement relates.”; There is nothing so special and different about the (b) in subsection (2), for paragraph (a) substitute— CAA board appointments that they alone of all regulatory “(a) the National Audit Office shall examine, certify and appointments require the approval of two government report on each statement of accounts received under departments. The Secretary of State will continue to subsection (1) and shall lay copies of the statement of be responsible for appointing non-executive directors accounts and of its report thereon before each House of Parliament.” and determining their remuneration. They are part-time posts that currently pay under £25,000 with some (2) In the National Audit Act 1983, Schedule 4 (Nationalised Industries and Other Public Authorities) Part 1, leave out “Civil small additions, where applicable, for extra work. I note Aviation Authority.”” that the noble Lord, Lord Rosser, suggested that some were paid £75,000. They are not in a CAA pension or bonus scheme. It is therefore quite unnecessary for the Lord Rosser: The amendments in this group provide, Treasury to undertake the administrative burden of first, for a new clause that would give the National checking the decisions of the Secretary of State. I hope Audit Office oversight of the Civil Aviation Authority’s that that provides the Committee with the reassurance accounts. It would also place on the Civil Aviation required and that the noble Lord will consider withdrawing Authority a general duty of efficiency in the use of its his amendment. financial resources. It is not clear why the Government have not already included those provisions in the Bill. There are significant changes in the role of the Civil Lord Rosser: Obviously, it is my intention to withdraw Aviation Authority under the Bill in relation to aviation the amendment, but before doing so perhaps I may security functions transferred from the Department ask the noble Earl whether he said that the posts for Transport and the economic regulation of airports. would receive less than £25,000. Is he saying that that The Civil Aviation Authority is likely to become a was the case in the financial year 2010-11 for which we more influential and important body as a result. appear to have the figures? Other regulatory bodies, including economic regulators which are also industry funded, are subject to National Earl Attlee: The non-executive directors are currently Audit Office oversight. They include Ofgem, Ofwat paid between £22,000 and £25,000 and are not eligible and Ofcom. The Office of Rail Regulation is also for pensions or bonuses, although they can receive subject to National Audit Office oversight, and the extra payments for extra days of work. I hope that that ORR is likewise funded from within the industry. As helps the noble Lord. we know, the Civil Aviation Authority is funded from the aviation industry and also receives a limited amount of money from the taxpayer. It is not, however, subject Lord Rosser: I note with interest the Minister’s to National Audit Office oversight, although it is response. Either the figures that I have are incorrect or generally recognised that the Comptroller and Auditor- an awful lot of extra work is undertaken, but obviously General and his staff at the National Audit Office do a I can look at that. The key part of the Minister’s highly effective job. argument is that no other regulatory bodies have Treasury and appropriate department involvement. The activities of the regulators to which I have just The Minister has been clear on that. I shall certainly referred and which are subject to NAO oversight do want to reflect on his response, but I beg leave to not involve significant public funds, but they lead to withdraw the amendment. costs being incurred by the providers of essential or strategic services which are likely to be passed to consumers, which justifies NAO involvement. That is Amendment 64 withdrawn. particularly the case where the need for active economic regulation has arisen from the process of privatisation, Amendments 65 and 66 not moved. and it is therefore only right that there should likewise be National Audit Office oversight of the Civil Aviation Clause 96 agreed. Authority’s accounts, as provided for in the amendment. The House of Commons Transport Select Committee in its report also called on the Government to explain Clauses 97 to 99 agreed. why the Civil Aviation Authority is apparently unique among industry regulators in being outside the remit Schedule 14 agreed. of the National Audit Office. GC 463 Civil Aviation Bill[9 JULY 2012] Civil Aviation Bill GC 464

The second amendment gives the Civil Aviation I shall speak first to Amendment 67 on introducing Authority a general duty of efficiency in the use of its a role for the National Audit Office. In Commons financial resources. A number of those giving evidence Committee the Minister announced a strengthening, to the House of Commons Transport Select Committee outside the Bill, of the scrutiny to which the CAA is suggested that the CAA did not always operate in the subject. Having considered this issue further myself, I most efficient way possible. For example, in its written remain unconvinced that there are compelling reasons evidence, British Airways stated that no measures to to believe that NAO scrutiny of the CAA would encourage efficiency had been included in the Bill and deliver a different result from the current and new that it considered that the Civil Aviation Authority mechanisms by which the CAA’s functions are had scope to make significant improvements in efficiency already audited and scrutinised. Moreover, the CAA in certain areas. It argued that the CAA should have a is overwhelmingly funded by the aviation industry. duty to operate efficiently. Parliament recognised this in removing the NAO’s role from the CAA and certain other bodies in 1984. The In order to keep costs for airlines and passengers, as issue was considered by Sir Joseph Pilling, in his 2008 well as the taxpayer, as low as possible, it is essential strategic review of the CAA, who concluded that there that the CAA adopts efficient ways of working and was no need for NAO involvement. The recommendation modern technology where appropriate, as higher costs was subsequently accepted by Ministers under the for airlines arising from CAA charges and any inefficient previous Government, and I have yet to be convinced use of its financial resources have the potential to that they were wrong. damage major UK airports’ competitiveness with alternative competing hubs. The Transport Select It is true that other industry-funded regulators come Committee, having taken evidence, recommended that under the scrutiny of the NAO but, unlike the CAA, an explicit efficiency duty for the Civil Aviation Authority they are generally either non-ministerial government should be inserted in the Bill. It is clear that it was departments or rely on government funding for a unimpressed with arguments that other parts in the significant proportion of their income. The CAA’s Bill already provided that explicit efficiency duty for situation is very different from regulators such as the the CAA. Office of Rail Regulation. Although the ORR is funded I hope that the Minister will be able to give a by industry licences, it is distinct because of the high sympathetic and helpful response to the amendments level of public funding that the rail industry receives. and I beg to move Amendment 67. I reiterate the strength of the scrutiny mechanisms already in place with the CAA. As was said on Report, the Secretary of State appoints the CAA’s external Lord Soley: I share the concern expressed by my auditors. She presents the CAA’s accounts to Parliament noble friend Lord Rosser about leaving the CAA out by placing the annual report statement in the Library of National Audit Office oversight. I have never of the House of Commons; she is involved in the understood the argument for that. It is very unusual, if development of the corporate plan; with the Treasury’s not unique, for such an organisation to be left outside consent, she approves the CAA’s borrowing and sets the remit of the NAO, and the case for its inclusion is its required rate on return on capital; and she will strong. At the very least, I would like the Government continue to approve the remuneration of the chair and to explain why; I do not understand it. The argument non-executive members of the CAA board. In addition, about efficiency follows from that, but the one that the CAA consults on its charges and fees. Clause 100 worries me most is raised by Amendment 67, which I makes such consultation an explicit requirement. support. I have not yet heard any argument why the I therefore currently see no reasons why the NAO CAA should be outside the remit of the NAO, because should audit the CAA, and ask the noble Lord to almost any other body of this type would be included. withdraw that amendment. I should like an explanation for that. On Amendment 68, regarding efficiency, in practice the CAA is already subject to conditions and obligations 3.45 pm that ensure that it is efficient. As announced by the Lord Trefgarne: My Lords, while the noble Lord, Lord Minister in the Commons, from 2013 onwards the Rosser, makes an interesting case for Amendment 67, I Government will include in their annual accounts am somewhat neutral on the matter, and look forward direction a requirement for the CAA to include an to hearing the Minister’s reply. I must say that I am efficiency statement in its annual report. This would a good deal less enthusiastic about Amendment 68; be subject to validation by the CAA’s external auditors, general, somewhat ill defined duties such as those and the Secretary of State for Transport will approve contained in that amendment are best left out of the terms of reference for that work. The efficiency legislation, and I hope that the noble Lord will not statement is likely to include a summary of value-for- press it. money audits and post-project completion reviews, developments in processes and technology and a report on the remuneration and deployment of staff. The Earl Attlee: My Lords, I fully agree with noble external auditors’ published statement in the annual Lords on the need for the CAA to be efficient in report would contain a summary of their findings on carrying out its functions. Identical amendments to the efficiency statement in the interests of transparency. the ones now tabled by the noble Lord, Lord Rosser, Industry representatives on the CAA’s finance advisory were also tabled in the Commons both in Committee group would be given an opportunity to discuss the and on Report, and were defeated in Divisions. statement before and after the external auditors had GC 465 Civil Aviation Bill[LORDS] Civil Aviation Bill GC 466

[EARL ATTLEE] Earl Attlee: My Lords, noble Lords have advanced completed their activity. This establishes an annual various arguments as to why the CAA should be process of scrutiny, with transparency to the industry audited by the NAO, but the Committee has not and to Parliament, to which the Secretary of State will convinced me that the CAA would become any more continue to present the CAA’s accounts. efficient if we went down that route. If noble Lords want to make any progress with their argument, they During the past nine years, the CAA has reduced will have to convince me that it would give a better its workforce by 15%. It employed 1,057 full-time outcome. equivalents in 2003 and had reduced that number to 870 in March 2012. The CAA’s strategic plan contains The noble Lord’s implied question was how much the objective: of the CAA’s budget comes from public funds. It is “To ensure that the CAA is an efficient and effective organisation only 6%. which meets Better Regulation principles and gives value for money”. Lord Soley: Six per cent of how much? Six per cent Clause 1(3) and (4) and Clauses 83 and 84 already of a large amount can be a large amount, too. build in proportionality safeguards. The CAA is also required to follow the good regulation principles in the Legislative and Regulatory Reform Act 2006 and Earl Attlee: My Lords, I am afraid that I will have the statutory regulator’s compliance code requires that to write to the noble Lord on the CAA’s budget. As regulators, ever, I will give Members of the Committee a comprehensive answer to any of their more technical “should be accountable for the efficiency and effectiveness of their activities, while remaining independent in the decisions they questions. take”. I am aware that this is very important to airlines Lord Rosser: In writing that letter, can the Minister represented by the British Air Transport Association. also give the relevant comparable figures for the other I will continue to reflect on the matter and consider regulatory bodies to which we have referred—Ofgem, what further reassurances can be given to your Lordships Ofwat, Ofcom and the ORR—and which are also on Report. In light of that, I hope that, at the appropriate funded in part by their industries? If the Minister’s point, the noble Lord, Lord Rosser, will consider argument on this issue is that the figure for the Civil withdrawing his amendment. Aviation Authority is particularly low in either percentage or actual terms when compared with other regulators, which are also partly funded from within their own Lord Soley: Amendment 67 is still puzzling me, industries, perhaps in sending that letter he could because the Minister’s argument seems to be that, provide the comparable figures so that we can have a because the airlines fund the CAA so heavily, there is a look at them. relatively small contribution from the taxpayer and, for that reason, the NAO need not be involved. I do I would comment only that while the Minister says not have the figures with me, but I do not think that that it is up to us to show the case for why a current the contribution from the taxpayer is so small as to be arrangement should continue, there is to be a changed really insignificant. If we are saying that a public body Civil Aviation Authority under the Bill. We are not such as this can be excluded from the NAO audit talking about that authority as it is now but about one simply because it receives a fairly small amount of with enhanced powers and influence. I would have public money, that logic could be extended to almost thought that the onus lay with the Minister to show us any other public body of this type. why the arrangements for the CAA should be different from those for other regulators, rather than the context To use the Minister’s argument, if in time the in which he put it: of seeking to say that we have to railway industry was able to pay rather more for the make the case. It is the Minister who has failed to Office of Rail Regulation, as one would hope, one make the case, frankly, but I will leave it until we would no longer need to have that looked at by the receive the letter from him with the information that National Audit Office. The Minister seems to saying he has said he will provide. that this is purely a ministerial discretion issue; that is, I am still not clear which clauses the Minister is “We will simply look at it. If the amount of taxpayers’ saying provide the general duty of efficiency. I see a money is small enough, we won’t bother to put it reference in Clause 1(3), to which I think the Minister under the NAO”—I do not use “won’t bother” in a referred, to the CAA having, dismissive sense; I mean that the Government will not “regard to … the need to promote economy and efficiency on the bother to have the NAO look at it. However, there will part of each holder of a licence”, come a point when we want the NAO to look it. Can the Government indicate what the trigger would be? for example, but that does not relate to the CAA’s Are we talking about £1 million or £5 million? What efficiency. I can find references, which I think the amount would suddenly trigger the Government saying Minister used, to activities being, that the CAA would be put under the National Audit “transparent, accountable, proportionate and consistent”, Office? Alternatively, to use my example of the Office but those do not necessarily refer to being efficient or of Rail Regulation, if the railway industry suddenly efficiency so I do not know what the noble Earl’s started paying for most of it, would we say, “Well, argument is. Which clauses is he saying cover the they’ve reached this point. Therefore, we will no longer general duty of efficiency? My understanding is that put it under the National Audit Office.”? I am not this is not some unique clause that we are proposing to quite clear about what the policy is. put in, as one can find examples of it applying elsewhere. GC 467 Civil Aviation Bill[9 JULY 2012] Civil Aviation Bill GC 468

Once again, why is the Minister saying that it should trading directive, but I want to broaden the debate to not apply to the CAA when, from what I have heard consider the obligations of the industry against the from him and from my understanding of the Bill, I whole background of carbon emissions. cannot see such a clear reference as he can to a general duty of efficiency in any other clauses at present? In order to reduce emissions in the industry and to I wonder if he can assist with that. serve the needs of businesses and members of the public who wish to fly it is clear that there needs to be innovation in the construction of aircraft, so that we Earl Attlee: On Amendment 68, the noble Lord’s can meet what we all appreciate is a very significant points are well made. I said that I will continue to demand for air travel, which no Member of the Committee reflect on the matter and consider what further expects to reduce significantly in the future. We all reassurances can be given at Report. My reason for know the hopes that are expressed about developments saying that is that the noble Lord has put his point such as high-speed rail—that they will lead to a reduction very well. in short-haul flying—but that may not do much more than mitigate the increase that is likely to occur as Lord Rosser: I am grateful to the Minister. I heard people, in due course, want to spend their income on him say that the first time round, but I am grateful to travel. him for having reconfirmed that he is looking at this matter. I appreciate that he has not given any As for the industry, even if high-speed rail plays a commitments. While I would not want to suggest that part in replacing short-haul flights, nothing can take when the noble Earl says he is looking at a matter he is the place of long and medium-range flights. Only not doing it seriously, if I say that he is looking at it aircraft can provide that kind of travel in the timescale seriously I hope he does not take that in the wrong needed. We are all aware that the vast majority of spirit and infer that I think he sometimes does not. vessels that carry passengers do so without regard to However, in view of what the noble Earl has said, I time: they are predominately cruise ships used for beg leave to withdraw the amendment. leisure, so the time constraint is not so acute. It must be several decades since the last passenger went on a Amendment 67 withdrawn. vessel over a long distance to conduct business, except for those exceptional people who will never fly. The Amendments 68 and 69 not moved. way to get about over long distances, clearly, is by air and not by sea. Amendment 69A Of course, the aviation industry has a major future. Another great innovation which I am sure others will Moved by Lord Davies of Oldham bring to the Minister’s attention, if I do not, is the 69A: Before Clause 100, insert the following new Clause— increase in global communications, the sophistication “Duty to promote innovation of conference facilities and so on. It leads to the In carrying out its functions, the CAA must, where possible potential obviation of people having to travel for and appropriate, have regard to the need to promote business if they can conduct it just as well through innovation in the civil aviation industry.” effective long-range communication. I have to say that I participated in one of the first such ventures, which Lord Davies of Oldham: My Lords, this is a probing consisted of a link between the United Kingdom, amendment with a proposed new clause because we Japan and the United States. Whenever Japan could could not think where else to put it in the Bill. It raises hear the United States it could not hear Britain; and a very important topic, to which I hope the Minister whenever Britain could hear Japan it could not hear will respond in his customary constructive fashion by the United States. The United States did not succeed assuring the Committee that the Government have in hearing anybody. It was a difficult exercise but I am thought through this issue and, in so far as the Bill talking about several decades ago. We all know how can assist in tackling it, are already doing so—unless sophisticated human communication can be now. One by some remarkable occurrence, and in the unlikely dimension of the financial anxieties that we all have is expectation, the Minister accepts my proposed new the extraordinary speed within which very complex, clause. staggeringly high-value financial communications are effected in fractions of a second. But conferencing of We have proposed this new clause in Amendment 69A that kind will always have its limitations and people in order to probe the Government and to have a will still need to travel for face-to-face meetings. debate about one of the most significant challenges facing the aviation industry in the future and the need There is a challenge to the industry. If the demand for the CAA to play its part. It is clear that the whole is there and the industry is the only way of meeting concept of the Bill is to establish a new position for the that demand, it has to have severe targets to reduce CAA and to update the provisions governing it, but carbon emissions, which must mean that new aircraft one of the great challenges for the aviation industry is engine designs and fuels will play an increasingly obvious, and that is that the British Government have important part. This might seem a long way from the subscribed to very significant and challenging carbon CAA but it sits on the European Aviation Safety targets for the years leading up to 2050. We believe Agency and has a role to play in implementing UK that aviation emissions must be included in these policy on the performance of aircraft. I would not targets. Aviation emissions are already subject to carbon decry the innovations that are already being introduced. caps as a result of being included in the EU emissions Thomsons Airways, for example, operated passenger GC 469 Civil Aviation Bill[LORDS] Civil Aviation Bill GC 470

[LORD DAVIES OF OLDHAM] For example, we have very few global positioning flights using a B757 aircraft that was filled with a satellite approaches. They rely on a satellite, not ground- 50% blend of EASA-specification bio-derived jet fuel. based, last century technical devices that cost a lot to It went from Birmingham to Lanzarotte in the Canary administer. The answer that we are given at the moment Isles and was satisfactory. The bio component was is that it is up to the airports to ask for them, but the derived from waste cooking oil. Owing to differences truth is that it is very expensive to implement. America in the manufacture and supply process of these fuels has a GPS approach for every airport. They are wonderful. compared with normal refining production, care was You can have dog legs on them, which means that you required to ensure that the fuel delivered to the aircraft can fly around communities, lowering the noise, and was traceable and fit for use. That was ensured in this do all sorts of things. You can have an instrument trial. Further use of biofuel is planned by this airline approach from both ends of your airport, not just the as wider availability of bio-derived jet fuel permits. published plate for an NDB on one end. That flight was overseen by the CAA’s flight operations More than that, the technology is now available to inspectorate. have WAAS approaches—wide area augmentation Biofuels are only one option. There are also likely systems. These are ground-based devices—I believe to be developments in the use of fuel cells and hybrid that there are two or three in America—that up the electric engines. The motorcar may have blazed an accuracy of the GPS signal and allow the approach to interesting trail—a reduced carbon trail, I hasten to be made to the accuracy that we are used to with an add. The car industry has done that and aircraft ILS—an instrument landing system. Again, it does engines may follow. On this important issue of the away with expensive ground-based technology. They development of aircraft engines, I want the Minister are very important. Imagine when you fly into a third to say that the Bill will ensure that the CAA will play world country and rely on maintenance by that country its full role in innovation. We know the great emphasis of its instrument landing systems, you are sitting in that has been placed on quiet aircraft and are aware your seat wondering whether that third world country that heavier and bigger aircraft are quieter than lighter can carry that out. There is no worry if you are using a and smaller aircraft were in the past. This is an issue satellite-based system run by the US. beyond quietness; it is about the whole future of the I am seduced by the duty to promote innovation development of carbon emissions. but at the same time, if this is implemented or written into the Bill, it should come with a caution: “with due The CAA is also the economic regulator of NATS. regard to the cost to general and business aviation”. It has already been proven that significant improvements The example is the mode S transponder that was can be made by air traffic control to increase the brought in recently, for which the lower end of the efficiency of the aviation sector. Innovations in technology industry had great difficulty grasping the need. I believe can allow much more efficient flight paths to be taken that it was necessary; there were good examples like and other improvements such as continuous rather being able to fly abroad or into certain air spaces. The than stepped descents. If we can use our airspace more industry is now beginning to grasp that and take it on. intelligently through technological developments so The transponder was needed but was badly sold to the that aircraft have continuous descent approaches, therefore industry, and it cost each and every plane owner quite using a much smoother glide path and much less fuel a lot of money to implement the new equipment. Once than with the traditional stepped approach, that will again, I think the noble Lord for his amendment; be of great benefit in reducing aircraft emissions. I think it is a good one. NATS has its role to play as well. The Minister was kind enough, before we began the Lord Soley: I do not wish to delay the Committee Bill, to give us the opportunity to meet several informed for very long because my noble friend Lord Davies individuals, specialists, to tell us what possibilities and the noble Lord, Lord Rotherwick, have covered a exist in the area. I just want the Minister to confirm number of the points that I would otherwise have that the Bill guarantees that the CAA and NATS can made. play their full part in technological improvements so We sometimes think, as the noble Lord has indicated, that we can still meet the demand for aviation and that this must always involve a cost of some sort to the ensure that the industry has a thriving future while airlines or other people on the sites. In fact, in the car meeting the necessary carbon targets which the Minister industry there are some recent examples that might has embraced. I beg to move. benefit the aviation industry. For example, we have a lower car tax rate, and indeed lower insurance policies, Lord Rotherwick: I am rather seduced by the for cars that are fuel-efficient. That policy was brought amendment of the noble Lord, Lord Davies, which in by the previous Government but is fully supported produces a duty to promote innovation. I very much by this one. I am not sure that we could not have a welcome the brief from the director of airspace policy, policy, or that the CAA could not at least encourage Mark Swan, on innovation, as referred to by the noble one, where our modern, quieter and more fuel-efficient Lord, Lord Davies, on continuous climb, and so on. aircraft could have a different landing charge. Maybe Of course, that falls far short of innovation in general that can already be done, I am not sure. and business aviation. You have only to compare the There are other examples of that type such as the UK to the US to see that we are lagging far behind. ground operations that are carried out. A number of We are only a small aviation sector in general and airports have now got around to doing things like business aviation compared to America and we need a bringing in more environmentally friendly ground champion to push such things. operations generally, particularly regarding vehicles. GC 471 Civil Aviation Bill[9 JULY 2012] Civil Aviation Bill GC 472

They were a bit slow on the uptake but now they are My view is that market forces should be allowed to doing that quite fast. There ought to be aware of drive innovation in industry and the regulator should encouraging that—possibly even financially, as I have be responsive to it. This is how things have worked so indicated. I am not talking about government subsidy far between the aviation sector and the CAA. Indeed, per se but a recognition that there may be a benefit to just how innovative our aviation sector is is a measure bringing in a more efficient system. The examples that of how well this arrangement has worked. the noble Lord, Lord Rotherwick, has just given of Let us consider one aspect of the aviation sector, being able to fly around the community might be the aerospace industry. Our aerospace industry is the enormously beneficial. world’s largest outside the USA, with a 17% share of We ought to be quite creative in trying to find ways the global market. Its annual turnover is more than of encouraging the people who are operating from an £20 billion, and it directly employs more than 100,000 airport to carry out their operations in a more people, supporting a total of 230,000 jobs across the environmentally friendly way. That is possible and we UK economy. Its workforce is highly skilled: 36% of ought to look creatively not just at methods that might its employees have university degrees or equivalent. increase costs but at methods that might also decrease them for some of the operators. The aviation travel industry is equally innovative. In my opening speech at Second Reading, I paid tribute Lord Trefgarne: My Lords, being 110 years old, to this fact, saying: naturally I am resistant to innovation of all kinds, “In 2010 … UK airports served nearly 400 international although I hope not in all branches of aviation. None destinations. That level of activity is possible because over the the less, one needs to take care with imposing duties of past 30 years the aviation industry has changed to meet the needs this kind upon the CAA in this particular area. For of the customer. The emergence of low-cost carriers is one example, if it were to be pressed to incorporate a new example of how the industry has innovated and diversified. There kind of material in an engine, perhaps to make it has also been an increase in the number of people travelling by air in this country, from 59 million passengers in 1982 to 211 million quieter, the cost of certifying a new innovation of that in 2010”.—[Official Report, 13/6/12; col. 1364.] kind can be substantial. My noble friend Lord Rotherwick refers to the desirability of introducing GPS approaches The CAA has its own international consultancy, in more airports. One has to remember that GPS Civil Aviation Authority International, or CAAi, which systems are outside the control of the CAA, the operators is a wholly owned subsidiary of the CAA. It is a and NATS, and in the past have been subject to leading, globally recognised aviation consultancy company interference from hostile agencies, which is much to be that delivers and promotes best practice in aviation regretted. I remember an occasion some years ago governance and education. CAAi provides technical when the GPS system in the UK collapsed for a couple advisory services across a range of aviation-related of days because there was some technical difficulty activities, environmental consulting, professional training, about which the CAA and NATS knew nothing. aviation examination services and certification against One needs to take a little care about these things. internationally recognised quality management standards. The ground approach facilities, for example, to which CAAi’s work contributes to enhancing safety standards my noble friend referred, are under the maintenance worldwide. and control of the airport authority and therefore, you The CAA is also quick to respond to innovation in may say, more reliable, at least when the shortcomings the aviation industry. I have come across two examples are more readily known. That said, I do not want to in the past few days. The noble Lord, Lord Sugar, has stand in the way of these worthwhile innovations, and raised with me the issue of PDAs in the cockpit. The the advantages of GPS approaches to which my noble CAA is assisting many UK commercial air transport friend referred are very real and important, but one operators to gain approval for the use of electronic needs to take care. The CAA has taken a careful—if flight bags. An electronic flight bag approval will that is the right word—approach to the approval of allow an operator to replace many of its cockpit GPS systems. That was right. It is being slowly convinced paper-based processes with an electronic solution such of their merit, which is right, too, but it did not jump as a laptop or tablet device or with an aircraft in their direction as hastily as perhaps some others manufacturer’s own certificated system. The CAA is did. I am not standing in the way of innovation, but I working with EASA and ICAO to standardise and ask the Minister to explain how the costs of all this simplify the requirements for operational approval of will be met. Some of them may fall on the operators—to electronic flight bags. their advantage, no doubt, so that is a good thing—but we should take a little care. The second example is the CAA’s work on its future airspace strategy, alluded to by the noble Lord, Lord Earl Attlee: My Lords, I am grateful to the noble Davies of Oldham. As the noble Lord reminded the Lord, Lord Davies of Oldham, for introducing this Committee, I offered some aviation briefing sessions interesting, probing amendment, because it gives me to Peers shortly before Second Reading. As part of the opportunity to say something about how innovative those, the CAA’s Director of Airspace Policy, Mark the aviation sector in this country already is and the Swan, gave a presentation on its future airspace strategy. CAA’s role as the regulator. My noble friend Lord Through the strategy the CAA is modernising how we Rotherwick spoke about innovation in navigational use our airspace in this country with the aim of aids. I look forward to debating his Amendment 73, achieving a, which will deal with these issues, but his comments “safe, efficient airspace, that has the capacity to meet reasonable were valuable nevertheless. He indirectly illustrated demand, balances the needs of all users and mitigates the impact why the CAA should concentrate on regulation. of aviation on the environment”. GC 473 Civil Aviation Bill[LORDS] Civil Aviation Bill GC 474

[EARL ATTLEE] I am not convinced that the addition of an innovation Mark Swan explained that this aim depends on the duty is, ability to take advantage of technological developments. “the optimal way to achieve the outcome sought”. For example, new communications, navigation and For the reasons I have identified, I believe that we surveillance improve situational awareness of users are already in a good place with regard to innovation and controllers; increased navigational accuracy enables in the aviation industry. There is a risk that giving the closer-spaced routes; and the amount of noise experienced CAA an innovation duty would oblige the CAA to by communities will be reduced as aircraft fly their meddle in the market and may even restrict the way in routes more accurately and consistently. Operators which the aviation industry would be able to innovate. will be able to free route in the upper airspace along This has been an interesting short debate. I can well the most fuel-efficient track. This is important. The understand why the noble Lord, Lord Davies of Oldham, noble Lord, Lord Davies, touched on emissions and has tabled his amendment, but I hope that he will the need to tackle them with technology and innovation. withdraw it at the appropriate point. The future airspace strategy is an example of how the CAA can facilitate innovation in the civil aviation 4.30 pm industry without the need for a new duty. Lord Davies of Oldham: There is no appropriate The noble Lord, Lord Soley, spoke previously about time like the present, so I will withdraw the amendment using advanced biofuels in the aviation sector, as did after I have given a few words of thanks, first, to those the noble Lord, Lord Davies, today. Today the noble Members of the Committee who support the clear Lord, Lord Soley, talked about quieter aircraft. He need for innovation. I also think that we needed will recall that the quota system of regulating noise at reassurance from the Minister that the Bill provides Heathrow airport strongly encourages quieter aircraft. sufficient powers and incentives to ensure that the Indeed, under the quota system some aircraft cannot limited part that the CAA can play in its role with fly at all at night. While there are some obvious regard to the industry is played as fully as possible barriers, the Government believe that sustainable biofuels against the very challenging objectives that we all need have a role to play in reducing carbon emissions from to meet through change, particularly those in aircraft transport, particularly in sectors where there are limited engine design. However, I was extremely grateful to alternatives to fossil fuels, such as aviation. The Committee the noble Lord, Lord Rotherwick, for indicating that on Climate Change has carried out studies on the there are other aspects of technology that could be of potential for biofuels to reduce emissions from UK great significance to the industry, to which the Minister aviation in the long term. Its latest estimate is that also paid due regard. biofuels could supply 10% of jet fuel demand by 2050, I accept entirely what my noble friend Lord Soley suggesting the impact that future innovation might said about government incentives for the development have. of new technologies in motor cars, and the licence I said that it is my view that market forces, rather system is a very effective weapon in those terms. But, than regulators, drive innovation. I believe that the as I understand it, neither the vehicles that airports examples I have provided together show that the industry use for towing things around nor their emissions are in and the CAA have got the balance right. any way subject to licence. Therefore, no incentive can be placed on the industry as regards those traction The Countess of Mar: Does the noble Earl agree engines for a fresh, new design through the way in that in some cases market forces can have a derogatory which they are licensed. I hope that the Minister has effect on the industry? For example, it can lead to taken on board that we need some imaginative strategies. cutting corners. I think particularly of my own interest, In fact, he has taken it on board because he is going to the cutting of corners in reporting incidents on aeroplanes. tell me about it. Because an aeroplane has to be grounded, it means time out of action and competition within the airline Earl Attlee: My Lords, the noble Lord has suggested industry is so great that it leads to reluctance on the that ground vehicles at airports are not subject to part of employees to report incidents when they should. regulations. I expect that I will be writing to him to This leads to a backwards step as far as innovation is point out that even non-road vehicles have limits on concerned, because, if they did report these things, their emissions. There are complex and quite tough maybe innovation would lead to improvements in regulations to ensure that any ground vehicle reduces facilities. I hope that the noble Earl sees what I mean. its emissions as much as possible. Even a vehicle that is not an on-road vehicle is still subject to regulations on Earl Attlee: I entirely agree with the noble Countess emissions. I think that my letter will go into that. that market forces can have an undesirable effect. That is why we need a highly skilled and competent regulator, Lord Davies of Oldham: I am grateful for that such as the CAA, to ensure that those undesirable reassurance but it raises an obvious question. Some effects of market forces are eliminated as far as possible. airports have taken this issue very seriously already I would like to quote from the Government publication but others have not. I therefore ask the Minister not to Principles For Economic Regulation: tell me how these machines can be improved but rather what is the incentive, compulsion or challenge “The Government will not seek to add objectives, responsibilities or duties to regulators’ remits without detailed consideration of given to those airports which are not improving to the impact of the addition on the overall framework, and consideration ensure that they do so in the future. That is the nub of of cross-sector impacts and even then only when it is clear that this issue with regard to emissions on the ground and the addition is the optimal way to achieve the outcome sought”. at airports. GC 475 Civil Aviation Bill[9 JULY 2012] Civil Aviation Bill GC 476

Without any doubt, the biggest challenge is to the must therefore assume that once these new sanctions aircraft manufacturing industry.As the Minister indicated are in place they will be used to secure some policy in his response, we are not negligible players in these objective, presumably an improvement in compliance terms and already have had one or two interesting that cannot be secured through existing powers. innovations in which we have shown ourselves to be The exercise of new powers will clearly have an world beating. With this amendment, I was merely impact on those on whom they are exercised and will, seeking to get reassurance from the Minister that he presumably, bring a benefit that will exceed the cost of took these issues seriously and that the Bill empowers exercising those new powers. Let us look to the people sufficiently to give their spur to this development Government’s analysis of costs and benefits for this in any way that they can, while always bearing in mind policy, identified in the impact assessment as “Policy the point made by the noble Lord, Lord Trefgarne, Option 2b”. No luck there; it tells us that no monetised that all new technology is more expensive than that benefits have been quantified because they would flow which it replaces if it is going to do a more challenging from the implementation of the regulations, so the job unless we have real breakthroughs in terms of cost-benefit analysis will be done in support of the design, which from time to time in certain areas occur. regulations. As to non-monetised benefits, page 88 of In the past, the aviation industry has not failed us in the document says that the main one, that respect, but the challenges ahead are obviously very intensive. With the Minister’s largely constructive “is the potential for increased compliance with certain areas of aviation regulation and therefore better protection of passengers reply, I am happy to withdraw the amendment, as this and a more level playing field for businesses”. is a timely moment to do so. It says nothing about general and business aviation, Amendment 69A withdrawn. and one wonders what the implication will be on that. So we remain in the dark about what these powers are Clauses 100 and 101 agreed. intended to achieve, the market or compliance failings that they are intended to address, the cost of introducing and exercising them and the impact that they might Clause 102 : Civil Sanctions have on those to whom they will be applied. I refer explicitly to the GBA. Amendment 70 Again, we are left unenlightened. It is all very well for the cost-benefit analysis to hide behind the excuse Moved by Lord Rotherwick that all will be made clear when regulations are brought 70: Clause 102, page 62, line 8, leave out “, 61” forward—I am sure it will all be made clear when the person finds themselves in the dock, but there we Lord Rotherwick: My Lords, I remind the Committee are—but that is not good enough. If the powers are to of my past declared interests. Clause 102 amends the be taken, there must be a reason; and if there is a Regulatory Enforcement and Sanctions Act 2008. It reason, it should be made clear now so that Parliament amends Schedule 5 to that Act to add the CAA to the can decide whether the powers are needed. No doubt list of 27 designated regulators, and amends Schedule 7 others will scrutinise the impact of the extensions of to that same Act to add to the list of 45 regulatory the powers to include Sections 7, 71, 71A and 86 of provisions contained therein a 46th line regarding the Civil Aviation Act 1982. Sections 7, 61, 71, 71A and 86 of the Civil Aviation My concern, and that of the GBA sector, is about Act 1982. The effect of this is to bring each of those the effect on Section 61 of the Civil Aviation Act. provisions of the Civil Aviation Act within the scope Section 61 is a headline provision covering the Air of the order-making powers of the Secretary of State, Navigation Order, which is a huge and complex document and the Welsh Ministers in Wales, under Section 36 of of some 500 pages, detailing the thousands of legal RESA. These are subordinated legislation-making powers. requirements for technical and operational matters It must be assumed that the Government would not such as aircraft airworthiness, equipment to be carried, take the time of Parliament to vest powers in the pilot and aircraft licensing, rules of the air and so on. Secretary of State that he had no immediate intention When the Secretary of State exercises his powers under of exercising. However, the Bill gives us no clues as to this clause, he will empower the CAA to issue fixed-penalty what the effect of these powers may be, so what is it notices for the alleged breach of the ANO, in the same that lurks behind these powers? way as the DVLA does for alleged vehicle offences. Perhaps the Government’s Explanatory Notes to At present UK aviation, especially the GBA sector, the Bill will lighten the darkness. Yet they do not. In operates in what is described as an open reporting respect of Clause 102, the notes merely say: safety culture. The vast majority of pilots, aircraft “Clause 102 amends Part 3 of RESA 2008 … to add the CAA operators and engineers take their legal responsibilities to the list of designated regulators in Schedule 5 to that Act. This for flight safety and airworthiness very seriously. For enables an order to be made so as to give the CAA access to a range of civil sanctions provided for by Part 3 of RESA 2008, example, it is not uncommon to hear pilots telephoning which could be used in relation to the enforcement of breaches of the traffic control tower of an airport to confess and civil aviation law. These sanctions would sit alongside the existing apologise where they believe they may have inadvertently sanctions available to the CAA and would provide it with an infringed controlled airspace. We have a successful alternative to relying on criminal prosecutions”. scheme for reporting a near miss, and another for All we have learnt so far is that these would be new voluntarily reporting general safety occurrences. This sanctions and would sit alongside existing sanctions. valuable safety culture might well be undone under the If we infer that existing sanctions are inadequate, we proposed regime, where it will be possible for the CAA GC 477 Civil Aviation Bill[LORDS] Civil Aviation Bill GC 478

[LORD ROTHERWICK] An unsympathetic observer might conclude that it to automatically issue fixed penalties in such cases, has been added as a simple and straightforward revenue- where at present it uses its powers of prosecution raiser, with the CAA issuing spot fines for all procedural selectively to achieve a strategic safety outcome. oversights and unintended violations without achieving If the penalties were to be imposed as an administrative any safety improvement outcomes. It would be of commonplace, without a full legal process, that would interest to learn from the Minister whether the extension fundamentally change the relationship between the of these powers to other agencies has produced significant CAA and pilots, operators and service providers such compliance benefits. I look forward to his answer. as engineers, who would fear bias and the use of I beg to move. penalties as a revenue-raising exercise. Moreover, the introduction of fixed-penalty procedures, as against Lord Trefgarne: My Lords, I have a good deal of the present prosecution powers, would shift the burden sympathy for the amendment of my noble friend Lord of proof. The recipient of an unexpected penalty Rotherwick. Might the Minister be a little clearer on notice would be faced with the alternative of paying what the process will be for the fixed penalty notices? I up, presumably at a reduced charge, which may be am ashamed to tell your Lordships that I am a veteran provided under Clause 102 if the CAA follows the of the fixed penalty notice system as applied by Transport parking-ticket process, or of challenging the ticket in for London in relation to the congestion charge. I have the courts. By including Section 61 in Clauses 1 and 2 on a couple of occasions had to appeal against an of the Bill, we run the risk that our open reporting alleged violation only for my appeals to be dismissed culture might be fatally damaged. This would work instantly—no doubt, rightly. I discovered that if you against the interests of increased flight safety. insist on appealing and taking your lawyer with you to The CAA has adequate penalties and powers of the tribunal in relation to your Transport for London prosecution at its disposal, which it uses wisely and penalty notice for alleged non-payment of the congestion sparingly.No case has been made to the GBA community, charge, you are 90% likely to get off, but if you do not and no consultation undertaken, where the evidence take your lawyer with you, you are not. It struck me as to back this change has been laid out. Indeed, we have a rather shocking revelation. I do not suggest that not heard that the CAA has asked for these powers. there is anything wrong in the process, but amateurs Perhaps the Minister could say something about that. who go on their own to appeal or simply send in a letter of appeal to Transport for London are likely to 4.45 pm be dismissed out of hand. However, if you turn up on I am deeply concerned about the financial aspects the day with you lawyer, you are likely to have your of this. The penalties imposed under this system will appeal allowed. I hope that there will be no such flow to the Treasury. Clause 102 allows the Secretary vagaries in the system to be employed by the Civil of State to empower the CAA to recover the costs Aviation Authority. Who will hear appeals from fixed associated with fixed penalty ticket systems. The CAA penalty notices issued by the Civil Aviation Authority? will begin a new stream of activity, secure in the What will be the expertise of those who hear them? knowledge that it will be able to recover the costs Can I be assured that the system will be a lot better associated with that activity from those whom it penalises. than Transport for London’s? What controls are there to be over this new enterprise? The present arrangements in respect of enforcement Lord Davies of Oldham: My Lords, I have only one of the ANO are working well and have the active brief comment to make, one which I never thought I consent and participation of the aviation community. would make in Parliament or elsewhere. Oh the joys of We should continue to develop that spirit of co-operation Opposition for the Minister to reply. which has achieved so much over the years. My amendment, to strike out Section 61 from Clause 102(3), Earl Attlee: My Lords, before turning to the detail would achieve that. of the points made, I must emphasise the importance It seems odd that, with a portfolio of criminal of the clause that the amendment would alter. My sanctions at its disposal, this Bill seeks to secure an noble friend Lord Trefgarne mentioned the congestion improvement in compliance through the granting of charge. I have been caught by it but I never dared to powers to impose civil penalties. I invite my noble appeal. I just paid up. That might be because I knew friend the Minister to enlighten the Committee on the that I was wrong. specific inadequacies in the present system that need The noble Lord talked about the higher success rate to be addressed through these new powers. May we if you bring your lawyer. It may be that the appellant have some examples? brings his lawyer because he is certain that he is right, I urge the Minister to reflect carefully on the inclusion so not surprisingly he wins his case. The noble Lord of Section 61 in Clause 102. The department has also asked about the appeal process. If someone who produced no evidence to support the need for it. Its has been issued a fixed penalty notice is unhappy inclusion defies the principles of better regulation and about that, he can take it to court in exactly the same fails even the most elementary application of the way as a motorist can take a matter to court—like the principles of evidence-based policy-making. What is it McCaffrey case. that is not being achieved at present that the inclusion of Section 61 would achieve? I put it to the Committee Lord Trefgarne: I confess that my memory is perhaps that Section 61 has been included simply because it slightly hazy but my recollection is that one cannot could be included and because it makes for a nice tidy take Transport for London to court. If one loses the bundle of powers. appeal, that is that. GC 479 Civil Aviation Bill[9 JULY 2012] Civil Aviation Bill GC 480

Earl Attlee: My Lords, the offender will be able to My noble friend Lord Rotherwick asked what the take the matter to an independent appeal tribunal. provisions will achieve. The inclusion of Section 61 of I will write to the noble Lord with full details of how the 1982 Act in Schedule 7 to the 2008 Act is important, that system will work. as it could give the CAA flexibility to use civil sanctions to enforce the provisions of the Air Navigation Order. Clause 102 amends Part 3 of the Regulatory That would be done only in appropriate cases where Enforcement and Sanctions Act 2008 to enable the the application of criminal penalties was not a CAA to make use of civil sanctions where it currently proportionate response to the offence which had been relies almost exclusively on criminal prosecutions, which committed, particularly in the case of minor administrative are not always appropriate for technical infringements. breaches. The CAA will not automatically impose The Bill will enable the Secretary of State by order to fixed monetary policies for breaches of the Air Navigation give the CAA access to a range of civil sanctions Order; the CAA will have available a range of civil provided under Part 3 of the 2008 Act as an alternative sanctions under RESA, including fixed monetary to prosecution. We believe that criminal sanctions are penalties, valuable monetary penalties, compliance notice disproportionate in relation to some offences, such as and acceptance of enforcement undertakings for minor breaches or offences of an administrative nature. imposition. The CAA must publish guidance on the I do not agree with my noble friend Lord Rotherwick use of such sanctions under a duty to act proportionately when he suggests that the CAA will be encouraged to under the Legislative and Regulatory Reform Act issue fixed penalties. The fines will go to the Consolidated 2006. Fund, as accepted by my noble friend. I think that he In evidence to the Public Bill Committee on the goes a little too far when he suggests that the CAA Civil Aviation Bill in another place, a risk was raised would abuse its powers and I totally refute the suggestion that the inappropriate use of new civil enforcement that these are revenue-raising powers. I was asked for powers could damage the open flow of information examples. When the commander of an aircraft fails to between the industry and the CAA. A recommendation produce licences for his or her flight crew in a reasonable was made that the CAA be required to consult on a time when requested to do so by an authorised person, formal policy before exercising the new powers. I hope he or she is guilty of a criminal offence and liable to that that will give my noble friend some comfort. I do summary conviction and a fine not exceeding level 3 not agree with any suggestion that the CAA would use on a standard scale. Should an offender fail to comply the new enforcement powers disproportionately. That with such rules, a fine or civil penalty for breach may is because the Legislative and Regulatory Reform Act be a more appropriate enforcement action than a 2006 requires regulators to carry out their regulatory criminal prosecution, thus ensuring better compliance. functions transparently, accountably, proportionately, I should point out that offenders will not find themselves consistently, and targeted only where action is need. in the dock because it is a civil penalty. I can assure my That includes the CAA, and we are confident that the noble friends that secondary legislation will be required CAA will abide by those requirements. The Department to grant the CAA these powers. It will be subject to for Transport intends to consult fully on any secondary full consultation and impact assessment. Any order legislation which will make civil sanctions available to will be subject to the affirmative resolution procedure the CAA in respect of relevant offences and to develop in Parliament. a full impact assessment—a point that I know concerned My noble friend Lord Rotherwick asked about the my noble friend. expected scope of compliance changes. The appropriate For those reasons, I hope that my noble friend will time to consider costs and benefits of the power is at consider withdrawing his amendment. secondary legislation stage. It would not be good use of public resources to calculate extensive options for what may not be the impact until Parliament has Lord Trefgarne: My Lords, is my noble friend willing agreed the powers. In particular, Clause 102 inserts to write to me with more detail about the intended certain provisions of the Civil Aviation Act 1982 to appeal processes for the fixed penalty notices? I recognise, the list of enactments in Schedule 7 to the 2008 Act. as he says, that secondary legislation is likely to be That enables the Secretary of State by order to give the required before these processes come into place, but CAA access to a range of civil sanctions in relation to this is a subject of considerable concern, at least for offences contained in secondary legislation made under me. As I explained, the present processes for dealing the 1982 Act. The provisions of that Act include with appeals against, for example, fixed penalty notices Section 61 which enables the Secretary of State to from Transport for London, are unsatisfactory and I make provision for offences to secure compliance with hope that they can be improved in respect of whatever Air Navigation Orders. Such orders are key to the the CAA is empowered to do. regulation of air navigation in the UK. I am sure that all noble Lords in the Committee would agree with that. They set wide-ranging rules that the CAA largely Earl Attlee: My Lords, I will be delighted to write police. to all Members of the Committee explaining the Government’s intent on that issue. Turning to the amendment, as described by my noble friend, it would exclude Section 61 from Schedule 7 to the 2008 Act and thereby deprive the CAA of the Lord Rotherwick: My Lords, I thank the Minister use of a range of civil sanctions in relation to offences for his full reply. He went a long way to try to answer contained in the Air Navigation Order. This would all my questions. He still did not answer the question dilute the intended purpose of Clause 102. about whether the CAA asked for this. GC 481 Civil Aviation Bill[LORDS] Civil Aviation Bill GC 482

Earl Attlee: My Lords, I can easily do that: it did. there are provisions in these arrangements to keep confidential the information that is to be released to Lord Rotherwick: That helps a lot: I now know who others, but the civil aviation community, the number to hold responsible. I must point out that within the of those who hold civil licences and air traffic control limited scope of the Bill, which pays hardly even any licences, is comparatively small. There is a risk that, if lip service to general and business aviation, in the one the information for some unusual medical conditions area where we are mentioned, we find ourselves caught is published, it will be possible to identify the persons on the stick, the discipline area; there are no carrots concerned. If the information on, say, half a dozen or around. I know that my noble friend is a very generous so cases of a particularly obscure medical condition is Minister and I hope that there will be some carrots, made available to research agencies, it will be obvious having had the stick first. who is the holder of that medical information. I am grateful that he will write to my noble friend I hope that my noble friend can explain in a Lord Trefgarne about the consultation. In past little more detail than appears in the Explanatory consultations, general and business aviation has not Memorandum why it is necessary to have this new always been represented. I would be most grateful if power. Can he give me the necessary assurances with my noble friend feels able to go as far as to say that regard to the absolute confidentiality of the information that will be the case this time: that there will be general to be provided? and business aviation members of the consultation and, most importantly, that we are not treated like The Countess of Mar: My Lords, I am pleased to commercial pilots. We do not earn our living from our see this clause in the Bill. Some years ago, research was licence, we are private pilots who do our best to abide conducted on airline pilots who had been exposed to by the rules. organophosphates. I am sorry but I have a problem with my voice. It was impossible for the CAA to give 5pm any details whatever to the researchers and it caused Earl Attlee: My Lords, I assure my noble friend huge difficulties. This will relieve that difficulty, so I that the GBA community will be included in any am very pleased to see it. consultation. Lord Rotherwick: My Lords, I have great sympathy Lord Rotherwick: My Lords, I am grateful for the with my noble friend Lord Trefgarne’s opposition to Minister bending over backwards on all my questions. the clause. I would be very interested to hear what the I will read everything with consideration and I hope Minister has to say because I think that my noble that we might have the letter before Report stage, friend’s concerns are those of many similar pilots. which, after all, will be at the end of the summer, in order to make a decision as to whether to come back Earl Attlee: My Lords, I would oppose my noble to this issue again. In the light of that, though, I beg friend Lord Trefgarne’s intention. I believe that Clause leave to withdraw the amendment. 104 should remain part of the Bill. My noble friend Amendment 70 withdrawn. said that his pilot’s licence was properly suspended for medical conditions. I currently have the same problem Clause 102 agreed. with my HGV licence because my blood pressure is too high—but the Summer Recess is coming soon. Clause 103 agreed. My noble friend was concerned that it might be possible to identify a pilot’s condition because of Clause 104 : Disclosure of medical information those small cohorts. It is more likely that medical research would be into large cohorts, such as all pilots Debate on whether Clause 104 should stand part of the with condition X or all class 1 medical certificate Bill. holders. Should a smaller cohort be of interest, the data controller would normally look to seek consent Lord Trefgarne: My Lords, I must confess that first. when I read this provision originally it seemed to be a There are several reasons to keep the clause part of rather extraordinary provision to be included in the the Bill, by no means the least of which is that the Bill. I therefore took the occasion to make some Government are seeking to enact this change because inquiries. First, I declare an interest. For a number of it was recommended by your Lordships’ Select years, I held an aviation medical certificate, which has Committee on Science and Technology in 2007 and now lapsed owing to my great age. Throughout the this is the first legislative opportunity that successive 40-odd years that I held a civil aviation licence, I was Governments have had to give effect to your Lordships’ dealt with with the utmost consideration and skill by recommendation. the CAA, and previously by the Ministry of Aviation’s I shall turn to the specific points raised by my noble medical authorities, including on two occasions having friend so that I can give him the reassurance that he my licence suspended for medical reasons, entirely seeks. First, he has suggested to me—certainly in correctly and properly, by the then authorities. private; I cannot remember whether he has said this My concern is confidentiality. I am and always have publicly—that the CAA may sell on medical records. been very anxious that medical information held by I make it very clear that this is not the intention of the public authorities, whether it is the CAA or anyone legislation and that the CAA has no plans to do this. else, should remain properly confidential. I accept that There is also perhaps the prospect of the CAA requiring GC 483 Civil Aviation Bill[9 JULY 2012] Civil Aviation Bill GC 484 even more medical data from pilots and flight crew, Individuals’ rights under the Data Protection Act because it might be useful for the purposes of later 1998 and Article 8 of the ECHR will be fully respected. medical research. The CAA cannot ask for more The CAA will act as the data controller at all times. medical information than it needs to consider an We have included strong safeguards in the clause to application for a medical certificate. The CAA has no protect those individuals. First, medical information intention or wish to ask for extra medical information must be anonymised by the CAA before it is released and no mechanism under which to do so without to medical researchers. Secondly, the disclosure must obtaining individual informed consent. The CAA abides be for medical research purposes approved by a research by the data protection principle of keeping the minimal ethics committee. Thirdly, the CAA must consider data required for the purpose of medical fitness that the research is likely to improve the understanding assessments. If an applicant were asked to provide of health risks to those individuals required to provide medical information that appeared to have no relevance medical information to them. Fourthly, the CAA must to their licence application, it could be expected that consider that it would be difficult or expensive to take they would challenge the need for it. the steps required by existing legislation to enable disclosure of all the information that is to be disclosed—for Clause 104 does not provide the CAA with any example, where the research cohort is particularly further powers to collect medical information. Those large. As the information disclosed by the CAA would powers are already there as part of the CAA’s licensing be anonymised, any published research would also be obligation under the Air Navigation Order. The CAA in anonymous form. These cumulative safeguards will has no intention to expand the scope of the medical ensure the appropriate balance between enabling information that it requires of applicants, and this important medical research and protecting privacy provision would not allow for that. The clause is there rights. I therefore hope that my noble friend will feel solely to permit the CAA to disclose the medical able to withdraw his opposition to the clause standing information that it already collects for medical research part of the Bill. purposes, subject to the strict safeguards contained in Clause 104(3). Lord Trefgarne: My Lords, I am very much persuaded The Committee will note that the CAA does not set by the arguments that the Minister has put forward. It out to collect medical data but acquires such data is important that this information is kept confidential. from people wishing to be licensed as pilots, navigators and so on because it has to make a judgment on I have just one other question to which I suspect my whether those people are medically fit enough to be noble friend will not have answer off the cuff, but if he licensed. We also think that making this change is a could write to me on it, I would be grateful. Am I not good thing to do. The Civil Aviation Authority receives right in thinking that the CAA has access also to medical information relating to flight crew and air medical information on pilots held by the Ministry of traffic controllers in the course of its licensing functions. Defence? It is important that that information, too, Clause 104 provides for the CAA to be able to disclose should be kept confidential, but it is also important this medical information to medical researchers by that the information is available for the researchers if amending Section 23 of the Civil Aviation Act 1982, it can be done in a proper way and with proper subject to the strict safeguards included in the Bill. safeguards. My noble friend may not have that information This information could be used for important medical at his fingertips, but if he could write to me about the research into the major functional and incapacitation MoD position in this matter, I would be greatly obliged. risks to those individuals—for example, the risks of heart problems. We believe that an increased Earl Attlee: I can undertake to give what information understanding of the main health risks may in turn I can. However, we both know a little bit about the lead to an improved understanding of the risk to Ministry of Defence and I am not entirely confident public safety, which is vital in the aviation industry. that it would have the data that the CAA would have. The types of important research envisaged here include the analysis of the electrocardiogram tracings Clause 104 agreed. of pilots over an extended period to determine whether small anomalies—that is, differences—seen in the tracings translate to heart problems later in their careers. Given Clause 105 : Dangerous flying the important benefits of this research, we consider that the provision represents a proportionate response Debate on whether Clause 105 should stand part of the to the legitimate aims pursued. I also remind the Bill. Committee that this proposal was supported in public consultation on the Bill, where the vast majority of respondents agreed with making anonymised medical Lord Trefgarne: My Lords, again, this is a very data available for ethically approved research. It is of small point on which I would be grateful for assistance. course vital that in doing this we include strong and Am I not right in thinking that, if we move in some effective safeguards to protect individuals’ privacy. respects from prosecutions under the 1982 Act or The Government are committed to ensuring that medical some other Act to prosecutions under the Air Navigation research will not compromise the rights of individuals Order—we have already talked about fixed penalty to have their confidential medical information protected. notices—the penalties under the ANO are less than I have already answered one of my noble friend’s very those under the civil aviation Acts, including the 1982 good questions, which was about small cohorts. Act? Is that one of the intentions of this provision? GC 485 Civil Aviation Bill[LORDS] Civil Aviation Bill GC 486

Earl Attlee: My Lords, I shall resist my noble friend navigation it is odd that only one plane was allowed to Lord Trefgarne’s intention to oppose this clause and I fly. Was everybody else banned or did they not have urge that it should remain part of the Bill, with which the right equipment? Maybe this is irrelevant to the I am sure my noble friend will agree. Clause 105 clause but what is special about “Crown aircraft”? repeals Section 81 of the Civil Aviation Act 1982, which creates an offence of dangerous flying where an Lord Rotherwick: It may help if I jump in. I suspect aircraft is flown in such a manner as to cause unnecessary that planes landing in the Scilly Isles were under danger to any person or property.In practice, prosecutions CAT—Civil Air Transport. In certain situations, a for dangerous flying have invariably been brought by private plane can be landed under VFR when a public the CAA under successive Air Navigation Orders, plane cannot under IFR. I only suggest that that currently the Air Navigation Order 2009, rather than might be the case under Section 81 of the 1982 Act. I understand that my noble friend’s concern is about the relative penalties under the Act and the order, and I shall come to that Earl Attlee: My Lords, if the aircraft was being matter in a moment. operated under the terms of the Civil Aviation Act, it The 2009 order is used because it sets out what is a matter for the CAA to regulate and investigate. It needs to be proved for an offence to have been committed, is not a matter for me to comment on. If it was an including recklessness or negligence, more clearly than aircraft of the Ministry of Defence, it is not covered does Section 81 of the 1982 Act. Any prosecutions of by the Civil Aviation Act. dangerous flying would be carried out under one of the two articles in the Air Navigation Order. The first Lord Trefgarne: My Lords, I am grateful to my is Article 137, which provides that: noble friend for explaining all the penalties. Were I still “A person must not recklessly or negligently act in a manner authorised to fly, I should be very careful not to fly likely to endanger an aircraft, or any person in an aircraft”. dangerously and fall foul of all the penalties he described. The second is Article 138, which provides that: “A person must not recklessly or negligently cause or permit Clause 105 agreed. an aircraft to endanger any person or property”. Amendment 71 5.15 pm Section 81(1) of the Civil Aviation Act provides for Moved by The Countess of Mar a fine not exceeding level 4, which is currently a 71: After Clause 105, insert the following new Clause— maximum of £2,500, or imprisonment not exceeding “Public interest disclosure six months, or both on summary conviction. There is (1) The Civil Aviation Act 1982 is amended as follows. no provision for conviction on indictment. However, (2) After paragraph (ha) of section 60(3) (functions with contravention of Articles 137 or 138 of the ANO respect to health) insert— carries a potentially higher penalty than Section 81 of “( ) for ensuring that all airline pilots and crew are aware of the Civil Aviation Act. Contravention of Article 137 and are protected by the terms of the Public Interest makes a person liable on summary conviction up to Disclosure Act 1998.”” the statutory maximum of £5,000 or on conviction or indictment to a fine and/or imprisonment of up to five years. The penalties for contravention of Article 138 The Countess of Mar: My Lords first, I apologise if are the same as for Article 137 except that the potential my voice runs out; I have a problem in that direction. In term of imprisonment is up to two years only. I assure moving Amendment 71, I shall speak to Amendment 72. my noble friend that the use of the ANO will be no I suspect that most noble Lords will be aware of my less dissuasive than the use of the Civil Aviation Act in long-held interest in organophosphates—OPs—and, this context. more particularly, those whose health has been damaged by exposure to OPs. This interest stems from my I can inform the Committee that in the past two personal experience. years the ANO offences were used in four prosecutions and convictions, and there has never been a prosecution At Second Reading I spoke of the method by for the Section 81 offence. Accordingly, this clause which the air that pilots, airline crew and passengers repeals Section 81 of the 1982 Act as in practice it is breathe is drawn in over the very hot engines of an redundant. For those reasons, I hope that my noble aeroplane on to which oil may have leaked. This oil, friend will withdraw his opposition to the clause standing manufactured by one company, ExxonMobil, contains part. an OP—tricresylphosphate, or TCP. This becomes aerosolised when heated to high temperatures, such as when it drips on to a hot engine. I detailed the chemical Lord Berkeley: Could the Minister explain what stages during Committee on the CAA Act 2006, as I Clause 105(5) means in practice? It refers to, am sure the noble Lord, Lord Davies of Oldham, will “power to apply certain provisions to Crown aircraft”. remember, so I will not do it again. The Minister will know that we debated transport to I know that the Minister will rely on the much the Scilly Isles a week or two ago. I heard that Prince criticised Cranfield study which looked at a sample of Charles visited there last week with great success. just 100 flights and found no so-called fume events. However, there was thick fog and the only plane that What it did find was the presence of TCP in 23% of was allowed to fly was his. I hope that it was safe— flights and there were 38 reports of fumes of which the I am sure that it was—but in terms of safety of majority were described as “oil” or “oily type” smells. GC 487 Civil Aviation Bill[9 JULY 2012] Civil Aviation Bill GC 488

A mandatory occurrence report or defect report was That all sounds very good. However, when the CAA not triggered for a single flight, despite this being a was challenged for failing to enforce the COSHH requirement of Commission Regulation (EC) No. 859/ regulations, Mr Tim Williams, then the CAA health, 2008, which amended No. 3922/91. An “occurrence” safety and environmental adviser, wrote on 13 April is defined in directive 2003/42/EC as, 2007: “an operational interruption, defect, fault or other irregular “The CAA’s health and safety enforcement powers are derived circumstance that has or may have influenced flight safety and from the Civil Aviation (Working Time) Regulations 2004”— that has not resulted in an accident or serious incident”. which the Minister has told me— The directive is worth reading because it details “in particular Regulation 6 that requires adequate health and occurrences such as fume events. I wonder why these safety protection to be provided to crew members. These Regulations occurrences were so studiously ignored by the Cranfield neither replicate nor replace those made under the Health and researchers. Safety at Work etc Act 1974, which are enforced by the Health and Safety Executive. The Control of Substances Hazardous to Toyber’s dictum states: Health Regulations 2002 … are derived from the Health and “Absence of evidence is not evidence of absence”. Safety at Work etc Act 1974 and”— There are two problems with occurrence reporting. I hope that the Minister will listen to this— The first is that pilots and crew know that if they “the CAA has no authority to enforce these Regulations, with report a fume event, their aircraft will have to be enforcement duties falling to the HSE. It is therefore inappropriate grounded at considerable cost to their employer and for the CAA to investigate any alleged breaches of the COSHH that, to put it mildly, is likely to be frowned upon. The Regulations. The Memorandum of Understanding (MOU) between second problem is that of credibility. Fume events are, the HSE and the CAA, and in particular Annex 8, provides by their nature, transient. They can be minor or major, further details on the divisions of health and safety responsibilities in aviation. The MOU also sets out how the CAA and HSE will and I know that the Minister has seen film of a major interact to avoid duplication of regulatory effect”. event when you could hardly see down the cabin because of the smoke. There is no standard equipment They might also interact to avoid any regulation in on board an aircraft to collect or measure toxic fumes, this case. and the human nose is the only available detection Mr Williams goes on to say that the CAA is always system. Engineering tests, unless they very precisely prepared to investigate where the health and safety of replicate the conditions under which a reported event crew members may have been compromised, but states took place, are very unlikely to produce a fume event. that there is a lack of evidence. Of course, if you do In either case, the reporting officer will be afraid at not look, you will not find. There is plenty of evidence least to be made to look a fool or at worst to be going back to the 1950s. If the Minister looks at the sacked. PhD thesis of Susan Michaelis, called Health and The CAA Act 2006 placed on the Secretary of State Flight Safety from Exposure to Contaminated Air in and the CAA duties in connection with, Aircraft, which I gave him last year, he will see in the annex page upon page of contaminated air reports “the health of persons on board aircraft”. from May 1985 to August 2006. He will see pages of The EU legislation listed in my Amendment 72 also data which confirm cabin air quality problems in BAe places duties on the competent authority in relation to 146s, just one of the aircraft types known to have this the health and safety of pilots, crew and passengers on problem, and yet no one in government or the CAA board aircraft. Other EU and international legislation seems to have shown any interest in what effect these defines the safety of the aircraft, its engines, other events have on pilots, aircrew and passengers. I wonder, mechanical equipment and even the quality of the and am frequently asked, why, after a reported incident, engine oil to be used. Much of the health and safety medicals, including blood tests, are not conducted legislation that applies to everyone in the UK workplace immediately on those likely to have been affected. This is defined in health and safety Acts and regulations. would at least establish whether there has been exposure The Minister, in a letter to me dated 18 June this year, to TCP. stated that: As I said at Second Reading, a small study in “The operation of aircraft in and over Great Britain is subject Nebraska showed that 50% of passengers on one to the Health and Safety at Work Act 1974. Consequently, the flight tested positive to TOCP, and a recent survey Control of Substances Hazardous to Health Regulations (COSHH) 2002 (as amended) do apply to aircraft in flight in airspace above found that 32% of UK pilots experienced medium to Great Britain. However, the Civil Aviation Authority (Working long-term ill health. Forty-four per cent reported short- Time) Regulations 2004 (as amended), also impose a duty on term effects and 13% were grounded because of fume employers to ensure adequate health and safety protection of events. aircraft crew on British-registered aircraft at all times. These regulations cover aircraft in flight and are enforced by the CAA”. Researchers at Cranfield and the Institute of Occupational Medicine in Edinburgh express an opinion The memorandum of understanding between the that the levels of TCP found in aircraft are acceptable, CAA and the Health and Safety Executive, which the but I do not think that it needs much imagination to Minister mentions in his letter, states at paragraph 1.5.3: realise that levels of absorption and inhalation of “The CAA is responsible for regulating the occupational toxic chemicals in a normal working environment health and safety of crew members whilst they are on board an such as a factory are very different from those in the aircraft from the time when they board the aircraft, preparatory to flight, to the time they leave the aircraft on completion of the enclosed, pressurised atmosphere of an aeroplane cabin flight. For the purposes of the occupational health and safety or cockpit. No safe levels have been established in this reporting and regulatory consideration, the CAA will monitor case. In any event, there are no acceptable daily exposure events occurring in aircraft whilst in operation outside the UK”. levels laid down for the more toxic breakdown products GC 489 Civil Aviation Bill[LORDS] Civil Aviation Bill GC 490

[THE COUNTESS OF MAR] For those reasons, I have no doubt whatever that of TCP or for the chemical cocktails produced by those open to ill health caused by such substances in heated oil. Incredibly, a CAA investigation into cabin the course of their work must be protected by law. It is air quality suggested that the average man can safely, surely our responsibility to ensure that the law is “ingest 7 metric tonnes of pyrolised oil per day for 74 days stringent enough, and properly applied, that there is: without effect”. adequate identification of these cases when they arise; that there is clarity with regard to who has the I wonder on what sound scientific evidence that statement responsibility for following up; that a statistical analysis was based. is undertaken; and that, where necessary, regulations A long-standing former British Airways cabin crew are tightened to ensure that people in cabins and member, concerned about the health effects that she passengers in aircraft are not put in danger because of was seeing among her colleagues, surveyed more than the effects of these substances. 1,000 crew. Among other things, she identified cancer I draw to the Committee’s attention some statistics occurring at 10 times the UK national average. She that are relevant to air crew contamination. The noble advised BA management and medical personnel of Countess has referred to Susan Michaelis who, in a her findings. Instead of thanking her for her efforts PhD thesis, undertook an extensive health survey of and agreeing to take matters further, they sacked her. 146 UK BAE pilots. That snapshot showed that: 88% Although my Amendment 71 may not be perfectly were aware of cabin air contamination; 63% reported worded, I hope that the Minister will accept its spirit symptoms consistent with cabin air contamination, and either assure me that airline pilots and crew will some immediate and some long term; 44% reported be supported and encouraged to report events that immediate short-term effects consistent with cabin air may have adverse health effects or assist me with contamination, representing flight safety hazards; and wording an acceptable amendment to this effect. 32% reported medium to long-term effects, again consistent with air cabin contamination and representing The Minister and the noble Lord, Lord Davies a flight safety hazard. Thirteen per cent were chronically of Oldham, may recall my efforts during the passage of impaired and no longer able to fly, which was in fact the Civil Aviation Act 2006 to provide a truly independent higher than pilot medical statistics for disqualification health and safety and medical facility for pilots and globally for all reasons, not just those consistent with crew. I was concerned that because the CAA was air cabin contamination. There is a strong temporal dependent on the aviation industry to fund this provision, relationship between the adverse effects reported and there might be some reluctance to put pressure on the the contaminated air environment. Those data are the airlines to improve working conditions and health and most authoritative that we have and surely should be safety grounds. considered. The ability to enforce COSHH regulations is I hope that the Minister will accept the amendments fundamental to ensuring that cabin air is not but, at the very least, is he willing to accept those contaminated, but on its own admission the CAA has figures? If he does not accept them, is he in a position no enforcement powers. This is totally unacceptable. to gainsay the argument? If other figures exist, they The cockpits and cabins of airplanes are workplaces should surely come to light. I hope that he can tell the for pilots and crew. I can think of no other workplace Committee that his department has rigorously examined in the UK where employees are so unprotected. the evidence put forward by Susan Michaelis in her I understand that an Air Navigation Order would be PhD thesis. At the very least, I hope that the Minister necessary to give the CAA this power. I hope that the will set up some independent investigation into the Minister will agree to Amendment 72 when I move it. reporting system of events that may have adverse In the mean time, I beg to move Amendment 71. health effects on those in aircraft cabins, and clarify who is responsible for applying the regulations. Will he undertake to review the statistical information available, 5.30 pm from all sources, to ensure that this issue is most assuredly not swept under the carpet? Lord Wigley: My Lords, I support Amendment 71, as moved by the noble Countess, Lady Mar, and I support her in regard to Amendment 72. I pay tribute Lord Rotherwick: My Lords, I congratulate the to the phenomenal work that she has undertaken over noble Countess, Lady Mar, and the noble Lord, Lord an extended period on conditions associated with Wigley, on tabling the amendment. It is most important, organophosphates. I regret that I cannot bring to this and the compelling evidence that we have heard is Committee the direct experience of flying that other evidence I have heard about for a long time and, noble colleagues have but, during my incarnation in indeed, read in books. If I am right, the aircraft another place, I have certainly had far too much referred to is the one that the royal flight uses and is experience of exposure to organophosphates in other mainly used for Ministers. If someone said to me that walks of life. Some noble Lords may be aware of the a Minister has faded or gone bonkers, the next question work undertaken by Mrs Enfys Chapman, who was should be: how many times have they flown on the for a time a constituent of mine and had the need royal flight? We all get into the commercial aeroplanes to dig into the tragic consequences of OP dips. I that we are talking about, so this is something that had constituents who were chronically affected by affects us. Of the Cranfield test, it was suggested— organophosphates: two sheep farmers who were almost alleged—to me that it was suspect because the aircraft certainly crippled by the effects of OP sheep dip. that they had on test were ones given to them by the A relative of my wife was also afflicted. airlines, not picked at random but, it was alleged, safe GC 491 Civil Aviation Bill[9 JULY 2012] Civil Aviation Bill GC 492 aircraft given for tests. One of the unofficial research We could be in an American aircraft, a British aircraft teams referred to in some books found that, of its or an aircraft from Abu Dhabi. This is an international swab tests on a range of aircraft, the majority had issue that needs international action. I do not think contamination when the swab tests came off seats. that we will resolve it simply by domestic means alone, We have all had the awareness when we come off a albeit that we can set an example, and I have no doubt plane that we frequently travel on: “Gosh, I was tired that that is the purpose behind the amendments. I think on that flight. I’m not normally that tired”. That is a that the proposers would accept, though, that this real problem. If the Minister does not accept the needs an international response. amendment, my only advice for noble Lords about I hope that the Minister will allude to that and say planes that take their cabin air, their bleed air, off the whether he would be prepared to undertake on behalf engines, off the compressor, is to fly on a Boeing 787, of the Government to contact our European partners the Dreamliner. It is the first aircraft that does not use and some of our major manufacturers. We have medical the ghastly system that causes the problem; it uses a expertise in this country that should be able to identify specialist air system totally independent of the engine. the significance of the problem. I think that the noble I hope that the Government will come forward to Countess said that you will not find if you do not address this elephant in the room; it affects us all when look, which is a very telling point. Yes, I do not want we go on aircraft. to see our industry crippled competitively against others but, at the same time, if long-term damage is done to Lord Empey: My Lords, I do not know whether the pilots and other air crew as a result of this contamination, amendments before us will be the right vehicle, but that is a matter where we as a Parliament have a duty they draw attention to a problem that definitely exists. of care to people in the community who work in that As someone with a family member who is a commercial environment, just as the noble Countess identified airline pilot, I am very conscious of the risks involved. those people who worked in our agricultural sector It is often pointed out that pilots and air crew are at and were exposed to vast quantities of contamination. greater risk of receiving higher levels of radiation I recall the time years ago when people said that because they fly without any protection at very high Sellafield was not a threat in the Irish Sea. We were levels for prolonged periods—indeed, throughout their told that the levels of contamination were perfectly working lives—and that that makes a difference. Here, safe. The levels of what people think is safe are now there is undoubtedly a problem but the solution is not about one-thousandth of what they were 30 years ago. as immediately obvious. For instance, on the point We are all in territory where we know that something made by the noble Lord, Lord Rotherwick, about the is not right but we are not necessarily sure of the Dreamliner and its new system, many of the huge solution. There are many examples where substances fleets of existing aircraft have the basic bleed air entering our systems can do long-term damage if system so this is not easy to resolve. Mention has been people are exposed to them for long periods of time. made of the BAe 146, which is a very nice aircraft to I have an open mind on whether this is the right fly in and, in particular, to land in, but there have been route but I hope that the Minister, on behalf of the incidents where aircraft have suffered a large ingress of Government, at least will address the fundamental vapour to the cabin, visible to the passengers. This is and underlying point behind the amendments. not a figment of someone’s imagination; it actually happens. Although it is true to say that pilots on flight decks generally have an independent air supply from 5.45 pm that of the people in the main cabin, it is sourced from Lord Davies of Oldham: My Lords, I shall contribute the same place. briefly because I cannot do justice to this issue. However, The question is: do we need international action? I hope that the Minister will do so. I pay tribute to the Let us face it, there are a very small number of aircraft enormous work of the noble Countess, Lady Mar, in manufacturers in the world and probably an even this area. I had the privilege of knowing Nancy Tait smaller number of aircraft engine manufacturers. Basically, who happened to be a constituent when I represented there needs to be international action by Governments Enfield and first came into the House. For a number to deal with this issue, whether through an action in of years her concerns about asbestosis were brushed this Bill, through action by the Government taken via aside on the grounds that the evidence did not match international organisations or through discussions with the allegations being made and anxieties being expressed. the industry. As the Minister pointed out, we are still Everyone else knew that huge potential costs were number two in the world on aerospace, which is a very involved if asbestos had to be stripped out of buildings important industry to this country. I would think that that were already constructed, to say nothing about adequate information is bound to be available within not being used again for building. She was right and the United Kingdom from the manufacturers of engines the doubts of the authorities were eventually overcome. and aircraft or parts of aircraft generally, and I cannot The evidence was produced and we are all healthier see any reason why we cannot pursue this issue through because of that, not least our schoolchildren because that route. one of the great uses of asbestos was in schools. We are in a worldwide competitive market, and no I do not know whether this issue is as significant as individual airline will be in a position to put its head that but when the noble Countess, Lady Mar, came to above the parapet without putting itself out of business. see me when I had responsibility for the department in Therefore, we need not only national or European this House a few years ago, I asked for all the investigations action but international action to deal with this. I guess and evidence that the department could make on these that we all fly in aircraft that are differently flagged. issues. I know that a significant amount of work was GC 493 Civil Aviation Bill[LORDS] Civil Aviation Bill GC 494

[LORD DAVIES OF OLDHAM] that he is able to give the Committee reassurances done. The one thing that I was not prepared to do was about this question of health and how it is being to stand before the House on behalf of the Government monitored. I do not have the slightest doubt that if we and reject the noble Countess’s amendments without are wrong, we would all feel dreadfully culpable because an assurance that we had explored every dimension. significant warning signals have been sent out, and There was an element in that about which I have that is why the issue has to be treated with the utmost not heard any more. I wonder whether the noble seriousness. Countess can enlighten the Committee. One of the issues was that the airline pilots, through BALPA, did Lord Wigley: Does the noble Lord agree that the not regard themselves as being excessively threatened first step must be to get authoritative independent by this problem. We all know that they have to protect evidence, facts and figures on which to base decisions, their livelihoods and they have a vested interest, but and that that needs to be looked at rigorously? That is equally no one goes to work thinking that they may be something we could all support because out of that we engaging in something that will seriously affect their can then reach reasonable conclusions. health in the future or even make them dangerous if they fall ill while they are working. That was an important dimension. I do not know whether BALPA’s Lord Davies of Oldham: Of course. That is a major attitude has changed. There has been no reference to it exercise and a costly one, and would have to be done but it would be germane to the debate. with the greatest thoroughness. The department and indeed the Government would have to be convinced The Countess of Mar: I think that the noble Lord that the anxieties were such that they could be allayed might agree that being an airline pilot is quite a macho only by that approach. It is for the Minister to indicate job and you do not admit that you are feeling ill until to us whether he thinks that we are at that stage now; you have to. We have two pilots here. Some of the we certainly were not a few years ago. people with whom I have contact are ex-BALPA pilots and are now seriously ill—some very seriously ill. The Countess of Mar: I have no intention of expecting While they were members of BALPA and working the airline industry to scrap all its planes immediately they did not complain. I mentioned at Second Reading and replace them with the Dreamliner. I recognise that the fear that they have of reporting because of losing that would be hugely expensive. It is just the same their jobs. story as with asbestos and, in a more minor way, with sheep dip, although the latter problem has been resolved. Lord Davies of Oldham: We all understand that I am concerned that people are not reporting ill health point. The noble Countess referred to macho jobs. because they are frightened—frightened of losing their There are lots of tasks that are extremely dangerous jobs, in one case, or of retribution. If the CAA had the and people are prepared to take them on, but a risk to power to enforce COSHH, doing so would make the their health of what is involved is a long-running airline owners maintain their aeroplanes properly— dimension that this manifestation represents. I am grateful to the noble Lord, Lord Empey, for his My point is obvious enough: I was assured several intervention there—and take notice when there was a years ago that there was not sufficient substance in the complaint. Until we know how many complaints there position as established at that stage for action to be are, we are not going to be able to solve the problem. taken. The action, of course, will be dramatic. Reference has been made to the fact that the Dreamliner does Lord Davies of Oldham: I hear what the noble not use this air system. The Dreamliner is rather an Countess says, and I heard that case deployed at the expensive aircraft to produce, as we all know, and it is time when we met previously on this issue. Overall, in open competition with the A380, which uses the old though, my experience is that, whatever risks to livelihood, system. We are talking about massive resources being people have the greatest concern about threats to their involved. There is no easy switch. If anyone had long-term health and it is therefore not the case that thought at any stage that everyone’s health could have they conceal these issues. The issue with the asbestos been safeguarded just with an easy technological change, problem was not that people were concealing the that would have been done, but we are talking about impact; what was not being substantiated sufficiently something so much bigger. was cause and effect, which is exactly the issue here.

Lord Empey: Does the noble Lord accept that Earl Attlee: My Lords, I am grateful to all noble maintenance is an issue here? The 146’s oil seals were Lords for their contributions to this debate. On the partly responsible when they corroded, largely due to first amendment tabled by the noble Countess, airline the chemicals to which they were exposed. Maintenance pilots and crew members are already protected in this may not be the solution but it is certainly an issue. area by Part IVA of the Employment Rights Act 1996, which was inserted by Sections 1 to 2 of the Public Lord Davies of Oldham: It certainly is; the 146 Interest Disclosure Act 1998, both as workers who can illustrated that in graphic terms and that is why changes make a protected disclosure to their employer and as were made. I hope that the Minister is able today to individuals who can make one to the CAA. The CAA build on experience. After all, the issue has been is a prescribed person for the purposes of that Act, before the department, thanks to the work of the which means that it can receive “protected disclosures” noble Countess, over a number of years now. I hope or whistleblowing from the civil aviation industry. GC 495 Civil Aviation Bill[9 JULY 2012] Civil Aviation Bill GC 496

As for awareness of these rights, the CAA has a found no evidence of pollutants occurring in cabin air published statement on its website in relation to its at levels exceeding available health and safety standards whistleblowing policy which makes it clear that it will and guidelines. investigate all complaints in an appropriate manner, However, I am well aware that the noble Countess endeavouring to maintain confidentiality at all times. has very strong views about the standards and guidelines. I add for the sake of completeness that, as well as Levels observed in the flights that formed part of the the protection afforded by the Act, the CAA has long study were comparable to those typically experienced established processes in place for incident-reporting in domestic settings. The department has now formally and to safeguard confidentiality. The chief of these is referred the published research studies to the Committee the mandatory occurrence reporting scheme established on Toxicity, the independent adviser to the Government in 1976. Consequently, the noble Countess’s amendment on matters concerning the toxicity of chemicals, for it refers to protections already in place and is unnecessary. to consider the matter. The second amendment proposed by the noble Countess is also unnecessary. However, it also has an 6pm important and possibly unintended consequence which The noble Lord, Lord Davies of Oldham, mentioned makes it unacceptable. The amendment would substitute BALPA. It is interesting to note that when I had a the existing provision in Section 60 of the Civil Aviation meeting with BALPA recently concerning the Bill, at Act 1982 with the wording that it proposes. This no time did it mention cabin air quality. In addition, would be a backward step because it would cause the BALPA supported the Cranfield research and issued removal of the power which enables an Air Navigation a supportive press notice when it was published last Order to contain provisions, year. The noble Countess suggests that pilots are “for safeguarding the health of persons on board aircraft”. reluctant to raise the issue because of job insecurity. That power has already been used. Why, when they retire, do they not suddenly start blowing the whistle loud and clear? They do not. The duty on the Secretary of State of, “organising, carrying out and encouraging measures for safeguarding the health of persons on board aircraft”, The Countess of Mar: My Lords, that is precisely now in Section 1(1A) of the 1982 Act, as inserted by what they are doing. The people I have contact with Section 8(2) of the Civil Aviation Act 2006, was a are ex-BALPA pilots and they are now complaining. widely welcomed reform. The existing Section 60 power If the Minister was to go to a meeting of the GCAQE, is part of delivering that general duty. We do not want he would see a lot of ex-BALPA pilots. to lose that. I suspect that the noble Countess does not want to lose that either, but the effect, perhaps Earl Attlee: What I find odd is that the noble unintentional, of this amendment would be to remove Countess has been raising the issue for some time, but the relevant subsection of Section 60. That is why I no pilot or any member of cabin crew apart from a regard it as a backward step and why it is opposed by very few who are in contact with her has ever approached the Government. me on the issue. I have received nothing about it. There is also a second objection to this amendment. The noble Countess also asked me about medical The matters listed in it are a mixture of UK legislation, data. The swab test research undertaken by the Institute European legislation and European Aviation Safety of Occupational Medicine in Edinburgh found Agency technical specifications. They are already enforced concentrations of organophosphate compounds consistent by the appropriate regulators in relation to the protections with previous measurements. I remind the Committee that they give, including safety, technical integrity of that the main research study published by Cranfield aircraft and working conditions for those in the aviation University in May last year found no evidence of industry. pollutants occurring in cabin air at levels exceeding The principal enforcement agencies are the Civil available health and safety standards and guidelines. Aviation Authority and the Health and Safety Executive, Levels observed in flights that formed part of the and there is a memorandum of understanding, referred study were comparable to those. to by the noble Countess, between these two bodies setting out their respective responsibilities for enforcing occupational health and safety in relation to public The Countess of Mar: I remind the noble Earl that transport aircraft while on the ground and in the air. It in none of those aircraft was there a fumigant, but was drawn up by the two organisations with the aim of they still found TCP in the aircraft. avoiding duplication of effort in the areas of overlapping mutual interest. There is therefore no need specifically Earl Attlee: The noble Countess has made that to provide for the enforcement of these in an ANO. point before. As a mere parliamentarian, I have to rely The noble Countess suggested that the CAA was on the academic research being conducted in an complacent. This is far from being the case. Successive appropriate manner and subject to peer review. All the UK Governments have investigated the matter thoroughly. published research studies have now been formally The UK has an excellent safety record in aviation referred to the Committee on Toxicity which is, as I which we would not wish to lose by being complacent. said, the independent adviser to the Government. Allegations of ill-health caused by cabin air have not When I first came into the House in 1992, I was been upheld by research. The main research study, rapidly aware of the noble Countess’s work regarding published by Cranfield University in May last year, organophosphates and sheep dips. GC 497 Civil Aviation Bill[LORDS] Civil Aviation Bill GC 498

[EARL ATTLEE] This is an important subject. I highlighted problems In answer to a point made by the noble Lord, Lord with sheep dip and I was told at first that it was Wigley, I am sure that the law is being properly applied. perfectly safe. I was proved right on that occasion The noble Lord asked: how frequent are fume events? and I hope that noble Lords will listen to me because Incidence of fume events is extremely low. The most there are serious effects. What concerns me perhaps as recent figures show that in 2010, there were 207 much as anything is that passengers are never told contaminated air events reported to the CAA mandatory when there has been a fume event. You might get a reporting scheme out of 1.12 million passenger and lady who is newly pregnant—perhaps she does not cargo flights by UK carriers. That is 0.018% or less know that she is— and whose baby, when it arrives, than 1 in 5,000. has either a cognitive problem or a deformity. We know that foetal exposure to tiny amounts of The Countess of Mar: Does the noble Earl agree organophosphates can be quite serious. that the Science and Technology Committee found We really need to be looking at this more thoroughly. severe underreporting of fume events? I know that when the Cranfield work was done, it was agreed that pilots would not be looked at until it could Earl Attlee: My Lords, I am not sure what would be established whether these toxic chemicals were in drive underreporting of fume events. fact arising in airplanes. That work has been done and The noble Lord, Lord Davies, talked about his role there has been a lot of criticism of it. I am not too in this matter and his discussions with the noble happy about it, personally, because I have seen how Countess some time ago. As I said, the UK has such research can be twisted in order to provide the undertaken research where no other country has done so. answer required and I mentioned intellectual corruption at Second Reading. I am not going to let go of this. The Countess of Mar: I am sorry to interrupt the I shall pursue it even beyond this Bill. I realise that it is noble Earl, but Australia and the United States have difficult but the noble Lord will hear more of it. In the done so. mean time, I beg leave to withdraw my amendment. Earl Attlee: My Lords, I am afraid we will have to Amendment 71 withdrawn. have a difference of opinion on that matter. In view of Amendment 72 not moved. what I have said, I hope that the noble Countess will Clause 106 agreed. feel able to withdraw her amendment.

The Countess of Mar: Will the Minister kindly Amendment 73 address my question about the ability of the CAA to Moved by Lord Rotherwick regulate through COSHH? I repeat: the CAA has no 73: After Clause 106, insert the following new Clause— authority to enforce the COSHH regulations—this is “Automatic direction finding equipment from the CAA—and it is therefore inappropriate for In paragraph 4 of Schedule 5 to the Air Navigation Order the CAA to investigate any breaches of the COSHH 2009, paragraph (a) of Scale F is repealed.” regulations. Lord Rotherwick: My Lords, as an instrument-rated private pilot I have been aware for some time that the Earl Attlee: My Lords, in my answer I explained to carriage of an obsolete radio navigation system is still the Committee that I am certain there is no gap in mandated by the Air Navigation Order. Technology responsibilities between the HSE and the CAA. moves on: automatic direction-finding, or ADF, equipment was developed in the middle of the last The Countess of Mar: But the HSE has the ability century and in the last two decades has been overtaken to enforce COSHH regulations. The CAA has no by more modern satellite-based and computer-controlled ability to enforce COSHH regulations, on its own systems, such as GPS. Indeed, it is possible to purchase regulations, and it is important that it should be wristwatches with better navigational functions than able to. those provided by ADF. Earl Attlee: Yes, my Lords, but as I explained to the I have to revalidate my IR rating once a year, and to Committee there is a memorandum of understanding, do this I fly in a plane with steam-driven instruments. which the noble Countess referred to, to ensure that I apologise to my noble friend Lord Trefgarne, whose there is no gap between enforcement by the CAA and plane had nothing but steam-driven instruments. Once the HSE. a year, using this equipment I have to do an NDB. The one thing that is interesting about an NDB, The Countess of Mar: I thank the Minister for his apart from the fact that it points roughly in the direction response but I find that really inadequate. The facts of the beacon that you are trying to track, is that in a are there: the Health and Safety Executive has the thunderstorm it can be reliably trusted to point toward ability to apply COSHH but the CAA, on its own the thunderstorm and not the airport. It can do many admission, has not that ability. It is important because other things. One will notice that at Oxford when engine oils and their effects would come under COSHH. landing on a one line procedure, as the plane crosses a I thank the Minister for addressing my other points railway track prior to landing, the needle of the NDB and I am also very grateful to the noble Lords, Lord will deviate towards the train running across the track Wigley, Lord Rotherwick, Lord Empey and Lord if one is so lucky as to fly over it. In short, it is not a Davies of Oldham, for their contributions and kind particularly reliable instrument but it has served well comments, which I found quite embarrassing. over many years. However, there are better systems now. GC 499 Civil Aviation Bill[9 JULY 2012] Civil Aviation Bill GC 500

Ground-based non-directional beacons, NDBs, are “a Fortran program for calculations on atoms and molecules”. rapidly disappearing in the United States. About 100 a I thought that that had got nothing to do with aviation year go out and there is virtually none left. The and that I had therefore better stick to my notes. associated automatic direction finding, ADF,equipment, My noble friend has a passion for ensuring that mounted in an aircraft remains a legal requirement for regulation is appropriate and that we take into account instrument flight in controlled airspace, although some technical developments which can often make regulations limited exemptions are in place. That absurdity makes out of date. The Civil Aviation Authority has advised some flights in modern aircraft that are not fitted with that it agrees with my noble friend that the existing ADF of dubious legality. It is a grey area, despite arrangements are no longer appropriate, given the having absolutely no implications for the safe and recent progress in navigational equipment. I am therefore expeditious conduct of those flights, or indeed finding pleased to learn that the industry now benefits from some the solution for the navigation. alleviation in a general exemption issued by the CAA. Noble Lords will be as fearful as many owners and I agree with my noble friend Lord Rotherwick that operators of light aircraft that when the Government’s this matter is worthy of further investigation. It is of Clause 102 comes in, the CAA may be issuing fixed course an important safety issue and I am sure that the penalty notices like confetti to those who breach the Committee will agree that it needs a proper and thorough ANO requirement. I am therefore proposing a simple safety assessment before we could remove this requirement. new clause to repeal the relevant requirement in the A meeting between my noble friend and the Civil Air Navigation Order 2009. I have put this point to the Aviation Authority may be the first step to considering Government in the past and while accepting their how best to proceed, including an assessment of if and suggestions and issuing guidance suggesting alternative when it might be possible to amend the Air Navigation navigational aids that might be acceptable as alternatives, Order. That would be a more suitable approach than the legal requirement remains. I understand that primary through this Bill, as pointed out by my noble friend legislation is required to bring about the change and Lord Trefgarne. If my noble friend agrees, I would be put the question beyond doubt. Indeed, that was happy to make the necessary arrangements. I note that the real reason I am told that nothing has come my diary is already littered with protected dates for forward to date. They have been waiting for primary such a meeting with my noble friend. Therefore, I legislation. hope that my noble friend will withdraw the amendment at the appropriate point. This is the first suitable legislative vehicle to present itself, so I move my new clause confident that it will Lord Trefgarne: My Lords, just before my noble find favour with my noble friend the Minister. I accept friend withdraws his amendment, perhaps I may point that my drafting may not be up to the requirements of out that automatic direction finding equipment operating parliamentary counsel and am very happy to take on the medium wave is very useful when it is not being advice from my noble friend who may wish to table a used for navigational purposes—for example, for listening more elegantly drafted new clause on Report. In the to the test match. The noble Lord may or may not use mean time, I beg to move. that in consideration. Lord Trefgarne: My Lords, I have some sympathy Lord Rotherwick: I am very grateful for the kind with my noble friend. He knows that very well. On the words of my noble friend the Minister and for his other hand, the regulations to which he refers and offer, which of course I should like to take up. I do not which he seeks to amend by virtue of this amendment think that there is more to be said than that. I also are devised and overseen by considerable experts in thank my noble friend Lord Trefgarne who seems to this area. It would be a mistake to impose a requirement be a little concerned about my amendment. I hope on the CAA by means of this amendment at this time. that his noble Dove, which is now out at grass, and its These matters should be left to the experts who are wonderful array of steam driven instruments were within the Civil Aviation Authority and the National being used for the right reason and that he was not Air Traffic Services. They are not all dinosaurs; they listening to the test match as he was making an instrument are very senior, distinguished, respectable and intelligent approach. I know that he has not been in a cockpit for people. I am happy to leave it to them and I hope that some time but if he would like to come and see a new my noble friend will feel so persuaded. cockpit, I would be delighted to take him along, although it might come as a shock. I beg leave to 6.15 pm withdraw the amendment. Earl Attlee: My Lords, I thank my noble friend Lord Rotherwick for putting forward this amendment. Amendment 73 withdrawn. I can appreciate his desire to remove where possible Clauses 107 and 108 agreed. unnecessary regulation and requirements on the aviation industry, which accords with the Government’s intentions Clause 109 : Commencement on the red tape challenge. My noble friend has rightly Amendments 74 and 75 not moved. drawn the Committee’s attention to whether there continues to be a compelling need for the mandatory Clause 109 agreed. carriage of automatic direction finding, ADF,equipment Clauses 110 to 112 agreed. on some aircraft. I did a little research myself: I looked up ADF and it appeared to be Amsterdam Density Bill reported with amendments. Functional, which is, Committee adjourned at 6.18 pm.

WS 73 Written Statements[9 JULY 2012] Written Statements WS 74

Government have identified three main options Written Statements for responding to the implementation of personal Monday 9 July 2012 independence payments. The three main options are: option 1—no legislative link between eligibility for a Blue Badge and eligibility to personal independence Building Societies payment; Statement option 2—establishing a legislative link between Blue Badge eligibility and the enhanced mobility The Commercial Secretary to the Treasury (Lord component of personal independence payment; and Sassoon): My honourable friend the Financial Secretary to the Treasury (Mark Hoban) has today made the option 3—establishing a legislative link between following Written Ministerial Statement. Blue Badge eligibility and those who score eight points or more within the “moving around” activity The Government White Paper Banking Reform: within personal independence payment. This assesses Delivering Stability and Supporting a Sustainable Economy, a person’s physical ability to get around. published on 14 June 2012, announced that the Government would shortly publish a discussion document on the The Government’s preferred option is option 3 as it building societies sector, setting out the full detail of would mean that eligibility for a Blue Badge would be their proposals for building societies, and their aspirations most similar to the current scheme and the potential for the sector. We are today publishing this document. impacts of this option are minimal. We will, however, The Future of Building Societies sets out the consider this in light of views and comments sent in as Government’s aim to maintain the distinctiveness of part of the consultation. The Government are also the sector while creating a level playing field and asking for other suggestions for other practical and removing unnecessary barriers to growth. It will amend sustainable solutions. the Building Societies Act to widen the opportunities The consultation concludes on 2 October 2012. for building societies and to align them with the ring Personal independence payments will be introduced fenced banks without compromising their mutuality for new claimants aged between 16 and 64 from April and the pivotal role they play in supporting the aspirations 2013 onwards. It will begin to replace disability living of families. The loss-absorbency proposals will apply allowance for existing recipients aged between 16 and to building societies as they will for banks of a similar 64 from October 2013 onwards. Any consequential profile. More detail will be announced in due course. changes to the Blue Badge scheme will also be phased Furthermore, the Government are open to reviewing in and will affect existing badge holders when an those parts of the Building Societies Act that the existing badge expires and they need to apply for a sector believes restricts it, where this is in accordance new one. with maintaining its distinctiveness as part of their A copy of the consultation document has been drive to foster diversity in the financial sector. placed in the Library of the House. The discussion document is available on HM Treasury’s website, and copies have been placed in the Libraries of both Houses. Disabled People: Elected Office Disabled People: Blue Badge Scheme Statement Statement

Earl Attlee: My honourable friend the Parliamentary Baroness Verma: My honourable friend the Under-Secretary of State for Transport (Norman Baker) Parliamentary Under-Secretary of State for Equalities has made the following Ministerial Statement. and Criminal Information (Lynne Featherstone) has I am today publishing a consultation document on today made the following Written Ministerial Statement. personal independence payment and eligibility for a The Government are today launching a £2.6 million Blue Badge. The consultation period closes on Tuesday fund to support disabled people who wish to stand 2 October 2012. for elected office. This proposal forms part of the The coalition Government are taking forward Government’s strategy to provide support for disabled important reforms to the welfare system. One of these people—the Access to Elected Office Strategy. Following reforms will involve changes to disability living allowance public consultation, the strategy has been developed and will affect eligibility for a disabled person’s parking by the Home Office, working with the Cabinet Office permit or Blue Badge. About a third of all badges are and the Department for Work and Pensions. currently issued to people who receive the higher rate Disabled people are under-represented in public of the mobility component of disability living allowance. life, as the speaker’s conference report and the My department is therefore consulting on the options parliamentary debate on 12 January recognised. Following we have for dealing with the impact of the changes. public consultation, the Government last year published The consultation covers arrangements for England proposals to provide extra support for disabled people only. who wish to stand for elected office. I am committed to ensuring that the Blue Badge The fund we are launching today will support disabled scheme continues to be focused on those people who people with some of the additional costs that a disabled will benefit most from the parking concessions that person may face in standing for elections, compared to it offers, and that it is sustainable in the future. The a non-disabled person. WS 75 Written Statements[LORDS] Written Statements WS 76

This will not, however, replace existing obligations or facing a serious threat of financial instability, is for parties, which is why I have published guidance for robust, follows clear procedures and is embedded in political parties on their legal responsibilities under EU law. the Equality Act 2010, particularly on the reasonable The UK broadly welcomes these proposals, which adjustments they should make for disabled people. will be an important part of governance reforms. The The fund will be open until March 2014 and will be proposals will help improve fiscal stability in the euro available to support disabled people seeking elected area, which is in the UK’s national interest. The euro positions in the following polls, including by-elections: area must put in place governance arrangements to police and crime commissioners; English local and create confidence for the future and ensure fiscal English mayoral; Greater London Authority; and UK responsibility. Parliament. The impact of the fund and the strategy (Possible agenda item) Revised capital requirements overall will be evaluated to inform any decision about rules (CRD4) any further support beyond the current spending period. The presidency may update Ministers on the latest We will also continue to work with colleagues in the trialogue negotiations, following the general approach devolved Administrations to share our learning from agreed by Ministers at 15 May ECOFIN. The UK this strategy. continues to support the full implementation of Basel 3 The fund will be complemented by an introductory and for member states to have sufficient flexibility to online training course on standing for elections, launched increase minimum standards in order to protect financial today. It will be of interest to anyone without previous stability in their jurisdiction. experience who wishes to stand for elections but is Proposal for Bank recovery and resolution directive aimed particularly at disabled people. It includes contributions from disabled politicians and others to This item was deferred from the 22 June ECOFIN. encourage disabled people to stand for elected office. The Commission will present its new proposals for a directive, following which Ministers may then have an As I have already announced to the Speaker in my initial exchange of views. The directive will require letter of 16 March, I am also pleased to say that, as member states to ensure that their national supervisory part of the Access to Elected Office’s commitment to and resolution authorities have a set of common tools provide support to disabled people, I am funding up to and powers which will enable them to avert, and where three additional placements specifically for disabled necessary manage, the failure of a financial institution. people as part of the Speaker’s parliamentary placement The proposal seeks to prevent the systemic damage scheme. caused by the disorderly failure of such institutions, Further details of all these initiatives can be found limiting public sector exposure and preventing wider on the Home Office website at http://homeoffice.gov.uk/ economic damage. equalities/equality-public-political/ . Presentation of the Cyprus presidency work programme The new presidency will set out their work programme for the next six months. Ministers will have an exchange ECOFIN of views on Cyprus’ work programme. Statement Follow-up to the European Council on 28 and 29 June 2012 Ministers will discuss the follow-up to the European Council, which considered a paper by the four presidents The Commercial Secretary to the Treasury (Lord (of the Council, Eurogroup, ECB and Commission), Sassoon): My right honourable friend the Chancellor Towards a Genuine Economic and Monetary Union and of the Exchequer (George Osborne) has today made agreed a Compact for Growth and Jobs. the following Written Ministerial Statement. Contributions to the European Council Meeting on The Economic and Financial Affairs Council will 28 and 29 June 2012— European semester be held in Brussels on 10 July 2012. Ministers will discuss the following items: The presidency will ask Ministers to adopt council recommendations on national reform programmes Economic governance—two pack and stability or convergence programmes. The Ministers will hold an orientation debate on the recommendations were endorsed at June European two pack of economic governance proposals, to discuss Council. The UK supports the European semester the European Parliament’s position. This will inform process and the country specific recommendations. the first working-level trialogue meeting with the European Parliament on 11 July. The first proposal concerns strengthening surveillance of budgetary policies in euro area member states. It EU: Cypriot Presidency would require euro area countries to present their Statement draft budgets at the same time each year and give the Commission the right to assess and, if necessary, issue an opinion on them. The second proposal concerns strengthening economic and fiscal surveillance of euro The Minister of State, Foreign and Commonwealth area countries facing or threatened with serious financial Office (Lord Howell of Guildford): My right honourable instability. It aims to ensure that the surveillance of friend the Minister for Europe (David Lidington) has member states under a financial assistance programme, made the following Written Ministerial Statement. WS 77 Written Statements[9 JULY 2012] Written Statements WS 78

I am keen to keep Members fully informed on (which includes British citizens and UK registered developments in the European Union and their companies), wherever they are in the world, other than implications for the United Kingdom and our priorities. in the limited and specific circumstances set out in my I would, therefore, like to draw Members’ attention to statement of 9 February 2012. a paper on the priorities of the Cypriot presidency of the Council of the European Union, which has been placed in the Library of the House. Flooding I have also deposited a copy of the Cypriot’s own Statement presidency priorities paper, the official calendar of events and a list of key Cypriot personnel for the The Parliamentary Under-Secretary of State, Department presidency. for Environment, Food and Rural Affairs (Lord Taylor of Holbeach): My right honourable friend the Secretary of State (Caroline Spelman) has today made the following Exports: Tasers Statement. Statement Following my Written Ministerial Statement to the House on 3 July (col. 48ws) concerning the flooding The Minister of State, Foreign and Commonwealth events in the Midlands and North East of England on Office (Lord Howell of Guildford): My honourable 28 June, I would like to provide a further update on friend the Parliamentary Under-Secretary of State for the significant flooding events that have taken place Foreign and Commonwealth Affairs (Alistair Burt) over this weekend on 6-8 July in England following has made the following Written Ministerial Statement. further periods of extremely high rainfall. Torture is an affront to human rights and the UK I would also like to acknowledge the tragic events will not waver from our determination to combat it which have taken place in the Krasnodar Region of wherever and whenever it occurs. Russia over the weekend and to express our sympathies Since 1997 it has been UK government policy to for the communities and individuals involved. prevent persons and companies operating in the UK During Friday and Saturday there was heavy and from manufacturing, selling or procuring equipment persistent rainfall across England and Wales, which on designed primarily for torture, and have taken necessary top of the already saturated ground has caused serious measures to prevent the export from, or transhipment flooding in some areas and disruption to many more. through, the UK of portable devices designed or There were widespread local impacts including to modified for riot control purposes or self-protection property, transport networks, sporting and cultural that administer an electric-shock. This included electric events, and agricultural land. discharge shock guns, of which Taser is a brand. I can confirm that on the latest count a total of In my Written Ministerial Statement of 9 February 391 properties were flooded across England from rivers 2012, I reconfirmed the Government’s commitment to and surface water flooding. 147 properties flooded in this longstanding policy. We are determined to prevent the South West; two-thirds of which were flooded due companies or persons operating from the UK or UK to rivers overflowing their banks and the rest from persons wherever they are in the world from surface water. Eighty properties were flooded in the manufacturing, selling, or procuring equipment designed Midlands and a further 86 in Yorkshire, Lincolnshire primarily for torture and we will continue to press for and the north. a global ban on such equipment. We will maintain this Nationally it is estimated that about 3,000 properties prohibition on the export, transhipment, and trade in have been protected from flooding over this weekend such equipment to all destinations, except in the very as a result of flood defences in place. The Met Office limited and specific circumstances set out in the Statement and the Environment Agency have been providing regarding to Tasers in specific cases relating to approved flood and weather warnings and over 200 flood warnings use by UK police, or by the police of the Crown and alerts were sent to communities at risk of flooding dependencies or overseas territories. across the country, including three warnings of severe The ban on British involvement in these activities river flooding. has always been intended to apply, and will continue Following the wettest June since records began to be applicable to trade activities as well as to export across England and Wales, the rainfall in July falling and transhipment. This is necessary to ensure that the in East Devon was over 100 mm—three times the rain policy ban on selling, manufacturing and procuring of normally expected for the whole of July—and across this equipment has maximum effect. Trade activities the South Pennines over 60 mm of rain fell which is include the trafficking and brokering of controlled 75% of the rain expected for the whole month. These goods from one third country to another third country rainfall figures demonstrate how severe and unusual by UK persons wherever they are, or by any persons the conditions have been but despite this we are determined carrying out such activities in the United Kingdom. to carry on improving our resilience to deal with this Trade activities were not included in the July 1997 type of weather in the future. Statement because at the time such activities were not On Sunday I visited the town of Ottery St Mary in controlled in the United Kingdom. the South West and saw for myself the damage and Thus the Government will not issue licences for disruption to people’s lives that this flooding has trade (including trafficking and brokering) in equipment caused. I would like to thank the local authorities and designed primarily for torture to any person in the other agencies in the area for their efforts to protect United Kingdom or to United Kingdom persons as lives and properties in Ottery and other affected defined in Section 11 of the Export Control Act 2002 communities and now to help them begin to clear up. WS 79 Written Statements[LORDS] Written Statements WS 80

The Secretary of State for Communities and Local The publication of the draft Local Audit Bill is Government is activating the Bellwin scheme of emergency another key step towards a more transparent and financial assistance to help local authorities with their localist audit system, and builds on what has already immediate costs associated with protecting life and been achieved since my right honourable friend, the property in their areas. Exceptionally, the scheme will Secretary of State, announced our plans to abolish the reimburse local authorities for 100% of their eligible Audit Commission. In 2010, the Government brought costs above threshold. This is in recognition of the an end to the top-down regime of routine assessment particular circumstances around these floods and will and inspection of local authorities, reducing the burden give the affected local authorities assurance that such on local bodies so they can concentrate on meeting the costs will be reimbursed. Government officials will needs of local people. In preparation for closure the also be discussing the recovery arrangements with Government asked the Audit Commission to outsource local authorities in the areas affected. the work of its in-house practice to the private sector. The Government recognise the importance which This year and for the next four years local bodies will flood insurance plays in these circumstances and are benefit from a 40% reduction in their audit fees. working closely with the insurance industry to secure The package of reforms, including the proposals set the future availability and affordability of flood insurance out in the draft Bill we are publishing today, will bring following the expiry of the statement of principles total expected savings to the public purse of £650 million next year. over the next five years. This figure (which is net of I am pleased to be able to report that the situation transitional costs) includes savings from the ending of in the South West and other parts of England worst assessment and inspection, a reduction in the cost of hit by the floods continues to slowly improve. There audit, and the slimming down and closure of the are no longer any severe flood warnings in force. I Audit Commission. Full details of the savings are set would like once again to take the opportunity to out in the consultation-stage impact assessment published praise the excellent response from our front line emergency alongside the draft Bill. services, local authorities and the diligent work by The new local audit framework set out in the draft Met Office and Environment Agency staff in the Bill represents better value for money for taxpayers Flood Forecasting Centre. With the forecast indicating while protecting the integrity of the local audit system. continuing unsettled weather, we will all need to remain There will be a more streamlined regulatory system alert to the risk of further flooding in the coming that will continue to provide robust assurance over weeks. public funds. These reforms will also bring wider It is my intention to hold a technical briefing for benefits: the new regime will be more localist, allowing flood affected constituencies in the early part of next local bodies to appoint their own auditors, with week to enable MPs to be made aware of the full range appropriate safeguards to protect auditor independence. of tools at their disposal to help their constituents. The reforms will complement our existing initiatives to increase transparency and empower local scrutiny Justice and Security Bill of public bodies. Statement In the proposed new audit framework, local bodies will be able to appoint their own auditors from an The Advocate-General for Scotland (Lord Wallace open and competitive market, on the advice of an of Tankerness): My right honourable friend the Lord independent auditor panel. The draft Bill provides the Chancellor and Secretary of State for Justice (Kenneth mechanism to delegate new responsibilities to the Financial Clarke) has made the following Written Ministerial Reporting Council, which will act as the overall regulator Statement. for auditors, and the professional audit bodies. It also Today I have laid before Parliament the Government’s sets out a new role for the National Audit Office, response to the House of Lords Select Committee on which will set the code of audit practice, and will be the Constitution’s report on the Justice and Security able to undertake a small number of thematic value Bill, which was published on 15 June. We have sought for money studies relating to local government. The to respond promptly in order to help inform the draft Bill makes provision for the repeal of the Audit upcoming debates on the Bill. Commission Act 1998, and for the transfer of assets, liabilities and continuing functions to other bodies Local Audit Bill once the Audit Commission closes. Statement Although there are no draft clauses included in the Bill at present, the accompanying consultation document The Parliamentary Under-Secretary of State, Department makes clear that the intention is to include provisions for Communities and Local Government (Baroness Hanham): relating to the audit of health bodies in the final My right honourable friend the Minister of State for version of the Bill when it is introduced to Parliament. Housing and Local Government (Grant Shapps) made I am also publishing alongside the draft Bill detailed the following Written Ministerial Statement on 6 July proposals for the audit of smaller local public bodies 2012. (those with an annual turnover below £6.5 million). Today I am publishing the draft Local Audit Bill These bodies will be subject to a proportionate audit for consultation and pre-legislative scrutiny. A copy regime, including an option for smaller bodies to have has been laid before the House. The draft Bill sets out their auditor procured and appointed by a sector-led a new, decentralised and more efficient audit framework, body. This follows a proposal from the National that gives local bodies greater responsibility. Association of Local Councils and the Society of WS 81 Written Statements[9 JULY 2012] Written Statements WS 82

Local Council Clerks to establish a body for such a to the 2014 PrepCom, consistent with their commitments under purpose. Additionally, bodies with a turnover below actions 5, 20, and 21 of the 2010 RevCon final document. £25,000 will no longer be automatically subject to Participants received a briefing from the United States on US external audit. Instead, I am proposing new transparency activities at the Nevada National Security Site. This was offered requirements for all smaller bodies with a turnover with a view to demonstrate ideas for additional approaches to below £200,000, and local people will still be able to transparency. raise objections and have complaints investigated by Another unilateral measure was a tour of the US Nuclear an auditor if deemed appropriate. Risk Reduction Center located at the US Department of State, where the P5 representatives have observed how the United States I welcome scrutiny of the draft Local Audit Bill by maintains a communications center to simultaneously implement the House. We will seek to shorten and simplify the notification regimes, including under the New Strategic Arms provisions, if at all possible, before it becomes a final Reduction Treaty (New START), Hague Code of Conduct Against Bill. It remains the Government’s intention to introduce Ballistic Missile Proliferation (HCOC), and Organization for a final Bill as soon as parliamentary time allows. Security and Co-operation in Europe (OSCE) Vienna Document. The P5 agreed on the work plan for a P5 working group led by China, assigned to develop a glossary of definitions for key nuclear terms that will increase P5 mutual understanding and Nuclear Disarmament facilitate further P5 discussions on nuclear matters. Statement The P5 again shared information on their respective bilateral and multilateral experiences in verification, including information on the P5 expert level meeting hosted by the UK in April, at The Minister of State, Foreign and Commonwealth which the UK shared the outcomes and lessons from the UK-Norway Office (Lord Howell of Guildford): My honourable Initiative disarmament verification research project. The P5 heard friend the Parliamentary Under-Secretary of State for presentations on lessons learned from New START Treaty implementation, were given an overview of US-UK verification Foreign and Commonwealth Affairs (Alistair Burt) work, and agreed to consider attending a follow-up P5 briefing on has made the following Written Ministerial Statement. this work to be hosted by the United States. I would like to update the House on the outcomes As a further follow-up to the 2010 NPT review conference, the of the Washington conference of the five nuclear P5 shared their views on how to discourage abuse of the NPT non-proliferation treaty (NPT) recognised nuclear weapon withdrawal provision (Article X), and how to respond to notifications states (P5) on nuclear disarmament, which took place made consistent with the provisions of that article. The discussion 27-29 June. included modalities under which NPT states party could respond collectively and individually to a notification of withdrawal, This was the third such conference at senior official including through arrangements regarding the disposition of level. It followed conferences in the UK (September equipment and materials acquired or derived under safeguards 2009) and Paris (June 2011), which brought together during NPT membership. The P5 agreed that states remain responsible policy officials, military staff and nuclear scientists under international law for violations of the treaty committed from all five nuclear weapons states. prior to withdrawal. The conference was an important part of the The P5 underlined the fundamental importance of an effective international dialogue on nuclear disarmament International Atomic Energy Agency (IAEA) safeguards system in preventing nuclear proliferation and facilitating co-operation demonstrating a shared determination to make progress in the peaceful uses of nuclear energy. The P5 discussed concrete on the commitments set out in the 2010 NPT Action proposals for strengthening IAEA safeguards, including through Plan. promoting the universal adoption of the additional protocol; and The P5 issued the following statement after the the reinforcement of the IAEA’s resources and capabilities for effective safeguards implementation, including verification of meeting: declarations by states. “The five nuclear non-proliferation treaty (NPT) nuclear-weapon states, or “P5,” met in Washington on June 27-29, 2012, in the The P5 reiterated their commitment to promote and ensure wake of the 2009 London and 2011 Paris P5 conferences to the swift entry into force of the Comprehensive Nuclear-Test-Ban review progress towards fulfilling the commitments made at the Treaty (CTBT) and its universalization. The P5 reviewed progress 2010 NPT review conference, and to continue discussions on in developing the CTBT’s verification regime in all its aspects and issues related to all three pillars of the NPT—non-proliferation, efforts towards entry into force. Ways to enhance the momentum the peaceful uses of nuclear energy and disarmament, including for completing the verification regime, including the on-site inspection confidence-building, transparency, and verification experiences. component, were explored. The P5 called upon all states to uphold their national moratoria on nuclear weapons-test explosions The P5 reaffirmed their commitment to the shared goal of or any other nuclear explosion, and to refrain from acts that nuclear disarmament and emphasized the importance of working would defeat the object and purpose of the treaty pending its together in implementing the 2010 NPT review conference action entry into force. The moratoria, though important, are not substitutes plan. The P5 reviewed significant developments in the context of for legally binding obligations under the CTBT. the NPT since the 2011 Paris P5 conference. In particular, the P5 reviewed the outcome of the 2012 Preparatory Committee for the The P5 discussed ways to advance a mutual goal of achieving 2015 NPT review conference, continued their discussion of how a legally binding, verifiable international ban on the production to report on their relevant activities, and shared views, across all of fissile material for use in nuclear weapons. The P5 reiterated three pillars of the NPT, on objectives for the 2013 Preparatory their support for the immediate start of negotiations on a treaty Committee and the intersessional period. The 2012 PrepCom encompassing such a ban in the conference on disarmament outcome included issuance of a P5 statement comprehensively (CD), building on CD/1864, and exchanged perspectives on ways addressing issues in all three pillars (NPT/CONF.2015/PC.I/12). to break the current impasse in the CD, including by continuing their efforts with other relevant partners to promote such negotiations The P5 continued their previous discussions on the issues of within the CD. transparency, mutual confidence, and verification, and considered proposals for a standard reporting form. The P5 recognize the The P5 remain concerned about serious challenges to the importance of establishing a firm foundation for mutual confidence non-proliferation regime and in this connection, recalled their and further disarmament efforts, and the P5 will continue their joint statement of May 3 at the Preparatory Committee of the discussions in multiple ways within the P5, with a view to reporting NPT. WS 83 Written Statements[LORDS] Written Statements WS 84

An exchange of views on how to support a successful conference request the information needed to carry out full in 2012 on a Middle East zone free of weapons of mass destruction and robust investigations; and was continued. require those to whom recommendations are made The P5 agreed to continue to meet at all appropriate levels on nuclear issues to further promote dialogue and mutual confidence. to set out how they intend to respond. The P5 will follow on their discussions and hold a fourth P5 The draft legislation would make the Children’s conference in the context of the next NPT Preparatory Committee”. Commissioner more independent from Government and more directly accountable to Parliament, in particular through an annual report to Parliament that will allow for more effective scrutiny of the impact that the Office of the Children’s Commissioner Children’s Commissioner’s activities have had on the for England promotion and protection of children’s rights. The Statement draft legislation also includes measures designed to make the commissioner’s business planning processes more transparent, by making it a requirement for the The Parliamentary Under-Secretary of State for commissioner to consult on his or her future priorities Schools (Lord Hill of Oareford): My honourable friend and to appoint an advisory board. the Minister of State for Children and Families, (Sarah In line with John Dunford’s recommendations, the Teather) has made the following Written Ministerial draft legislation would also result in the functions of Statement. the Children’s Rights Director in Ofsted being Following John Dunford’s independent review of incorporated within the remit of the Children’s the role of the Children’s Commissioner, I informed Commissioner, but with safeguards to ensure that the the House that the Government had accepted in principle current levels of support provided to this vulnerable all of his recommendations and said that we would group of children were not diluted. consult on the legislative changes needed to implement Under the draft legislation, the Children’s them. Having taken account of the responses to the Commissioner for England would retain responsibility consultation, I am today laying draft legislation before for non-devolved matters, but would be able to delegate the House for pre-legislative scrutiny. his or her powers of investigation to the Children’s The Government aim to make the UK the most Commissioners in the devolved Administrations. The child-friendly country in Europe. Children are generally Children’s Commissioner for England would also be more vulnerable than adults and do not have the same required to consult the Children’s Commissioners in opportunities to make their views known or to raise the devolved Administrations before conducting an concerns about the impact of new policies or legislation. investigation on a non-devolved matter within their It is therefore important that they have a strong advocate jurisdictions or across the UK. to represent their interests, particularly when they are Copies of the draft legislation will be placed in the in vulnerable situations. House Libraries. John Dunford’s independent review concluded that there was a continuing need for a Children’s Commissioner, who could act as a champion for children and young Presumption of Death people—ensuring that their voices were heard and Statement that new policies and legislation were designed in a way that took account of their rights. However, he said that the current legislative framework had prevented The Minister of State, Ministry of Justice (Lord the commissioner from fulfilling that role effectively, McNally): My honourable friend the Parliamentary and that changes were needed to ensure that the Under-Secretary of State, Ministry of Justice (Jonathan commissioner would, in future, have greater impact on Djanogly) has made the following Written Ministerial children and young people’s lives. Statement. The draft legislation laid before the House today I have today (Friday 6 July) laid before Parliament would create a new role for the Children’s Commissioner, a Command Paper setting out the response of the focused on promoting and protecting the rights of Ministry of Justice to the report of the Justice Committee children, in line with the Articles of the UN Convention on Presumption of Death (HC 1663)[Cm 8377]. on the Rights of the Child, to which the Government In its report the committee criticised the present law are a committed signatory. In order to carry out the in England and Wales. The committee recommended role effectively, the Children’s Commissioner would that better guidance should be made available to those have powers to: left behind. The committee also recommended that carry out investigations; legislation should be introduced to create both a single statutory process to obtain a certificate of presumed carry out assessments of the impact of new policies death broadly equivalent to a death certificate and a and legislation on children’s rights; new status of guardian of the affairs of a missing undertake research; person. monitor the effectiveness of complaints and advocacy The Ministry of Justice acknowledges the difficulties services for children and young people; faced by those left behind when a person disappears; accessplaceswherechildrenarecaredfororaccommodated accepts the committee’s recommendation that better away from home, so that their concerns can be guidance should be issued, and is working with others heard; to prepare this. The department also accepts the committee’s WS 85 Written Statements[9 JULY 2012] Written Statements WS 86 proposal that a certificate of presumption of death decommission their assets, they will (subject to certain should be created. The Government will introduce conditions) be entitled to claim a shortfall payment legislation to achieve this when parliamentary time from the Government. permits. In relation to the committee’s recommendation This contractual approach is intended to facilitate on guardianship, the department considers that this further investment and production in the UKCS and is area is complex and that further examination of the therefore expected to have a positive impact on the issues is required before any decision to legislate can Exchequer. properly be taken. The department intends to ask the The initial consultation period will last for 12 weeks, Law Commission to conduct a detailed project considering closing on 1 October 2012. how best to effect this reform and is in discussions with it. A copy of the consultation will be made available from the HM Treasury website: http://www.hm-treasury.gov. uk. Questions for Written Answer: Summer Recess Visas Statement Statement

The Chancellor of the Duchy of Lancaster (Lord The Minister of State, Home Office (Lord Henley): Strathclyde): It has been agreed through the usual My honourable friend the Minister of State for channels that the two dates for tabling Questions for Immigration (Damian Green) has today made the Written Answer during the Summer Recess this year following Written Ministerial Statement. will be Monday 10 September and Monday 1 October. My right honourable friend the Home Secretary is Answers to Written Questions will be made available today laying before the House a statement of changes online once a week and an edition of Hansard will be in the Immigration Rules. The changes support the published on 24 September in which Answers received introduction of a new targeted interview programme by that time will be published together with Written by the UK Border Agency, to ensure students seeking Ministerial Statements. to abuse the immigration system are identified and refused a visa for the UK. The UK Border Agency plans to interview between 10,000 and 14,000 student Taxation: Oil and Gas Investment visa applicants over the coming year. Statement The first change makes provision for an entry clearance officer to be satisfied that an applicant is a genuine student before granting entry clearance under tier 4 of The Commercial Secretary to the Treasury (Lord the points-based system. The second change makes Sassoon): My honourable friend the Economic Secretary provision for an entry clearance officer to refuse to to the Treasury (Chloe Smith) has today made the issue entry clearance where the applicant fails to attend following Written Ministerial Statement. an interview without providing a reasonable explanation. Both changes will be effective from 30 July 2012. At Budget 2012, the Government announced a package of measures on oil and gas taxation to support From December 2011 to the end of February 2012 investment. This package included the introduction of the UK Border Agency ran an interviewing pilot. The legislation in 2013 giving the Government statutory pilot assessed the effectiveness of interviewing more authority to sign contracts with companies operating student visa applicants. It also considered the requirement in the UK and UK Continental Shelf (UKCS), to for and potential impact of a new power to refuse provide assurance on the tax relief they will receive entry clearance on grounds of genuineness. Over 2300 visa when decommissioning assets. applicants from 47 countries were interviewed. Seventeen per cent of those interviewed were refused a visa under The Government recognise that, at present, a lack existing powers. Entry clearance officers indicated they of certainty over how much tax relief companies could have refused up to 32% of the remainder on expect to be able to claim in respect of their future grounds of genuineness. The full evaluation report of decommissioning costs is making it difficult for oil the pilot is being published today, and a copy has been and gas assets to change hands, limiting the funds placed in the Library of the House. available for new ventures and deterring incremental investment. Since 2011 the Government have overhauled the student visa system to tackle abuse while continuing to HM Treasury is today publishing the following attract and retain the brightest and best students who document: Decommissioning Relief Deeds: Increasing will help drive growth in the economy. They have Tax Certainty for Oil and Gas Investment in the UK introduced a range of measures to tighten controls on Continental Shelf. institutions sponsoring international students, remove This consultation document seeks views on the the entitlements that provided false incentives to those Government’s proposals to provide certainty on motivated by work not study, and ensure only those decommissioning relief through decommissioning relief with the most to offer remain in the UK at the end of deeds. their course. Over 450 colleges have now lost their It is proposed that these deeds will provide eligible right to bring international students to the UK, and companies with certainty that, if they do not achieve a the number of student visas issued in the year to specified level of relief under the tax code when they March 2012 fell by 21%. WS 87 Written Statements[LORDS] Written Statements WS 88

Whilst these changes have significantly strengthened risk UK Border Agency compliance action. Providers the student visa regime, the pilot study identified some often undertake recruitment activity remotely, through residual abuse. The findings indicate that targeted agents. overseas interviews, supported by new powers of refusal, are useful additional tools to support entry clearance Interviewing will provide an additional layer of officers to identify and tackle it. These risk-based scrutiny, where needed, to help safeguard institutions. controls will be used alongside the wide range of other Interviews also will provide applicants with every checks already operated by the UK Border Agency. opportunity to demonstrate how they meet the genuine student rule. Students from low-risk countries who These measures do not alter the duty on tier 4 already benefit from a streamlined visa application sponsors to satisfy themselves that an applicant is able process will be exempt from the genuineness test. and intends to follow the course of study. They are designed to protect reputable providers that have made Further details on the application of these provisions offers to students in good faith, and would otherwise will be set out in UK Border Agency guidance. WA 197 Written Answers[9 JULY 2012] Written Answers WA 198

The Parliamentary Under-Secretary of State for Written Answers Schools (Lord Hill of Oareford): The Government recognise the importance of meeting the needs of Monday 9 July 2012 children with autistic spectrum disorder but do not believe that having a teacher with special expertise in Ascension Island autism in every school is a practical way forward. Questions Instead the Government are making support available to staff who teach children with autism. The Government Asked by Lord Ashcroft have provided funding for up to 9,000 school special educational needs co-ordinators (SENCOs) to have To ask Her Majesty’s Government whether rights completed mandatory training by the end of 2011-12 of abode have been introduced for Ascension Island; and are funding a further 1,000 SENCOs in 2012-13. and if not why not. [HL1249] The training includes training on particular types of special educational needs, including autism. The Minister of State, Foreign and Commonwealth The Teaching Agency has developed advanced level Office (Lord Howell of Guildford): There is no right of training materials on four types of special educational abode on Ascension and the Government have no needs, including autism. The Government are also plans to introduce such a right. To do so would funding the Autism Education Trust until April 2013 fundamentally change the nature of the territory and to develop national standards for staff working with bring unacceptable costs and contingent liabilities to children with autism and tiered training for all staff, the UK taxpayer. teachers and SENCOs. Asked by Lord Ashcroft To ask Her Majesty’s Government what areas of Bangladesh disagreement regarding the use of facilities on Questions Ascension Island by the United States are under Asked by Lord Avebury discussion by the United Kingdom and the United States. [HL1250] To ask Her Majesty’s Government whether they will propose to European Union Heads of Mission Lord Howell of Guildford: There are no areas of in Dhaka that they should hold regular meetings disagreement regarding the use of facilities on Ascension with the Chittagong Hill Tracts (CHT) Commission, Island by the United States, which is regulated by a particularly before they undertake visits to the series of diplomatic agreements. Officials from the CHT. [HL1164] Foreign and Commonwealth Office and the Ministry of Defence, hold regular discussions with the United The Minister of State, Foreign and Commonwealth States on issues relating to Ascension. Office (Lord Howell of Guildford): I welcome my Asked by Lord Ashcroft noble Lord’s proposal. European Union Heads of Mission in Dhaka regularly discuss issues relating to To ask Her Majesty’s Government what are the the Chittagong Hill Tracts with a range of government issues that have been considered in their discussions and non-government stakeholders including members regarding Ascension Island with the Governor of of the Chittagong Hill Tracts Commission. Pre- and St Helena, Ascension and Tristan da Cunha in the post-visit meetings can be an invaluable means of past six months. [HL1251] sharing information. Asked by Lord Avebury Lord Howell of Guildford: Officials from the Foreign and Commonwealth Office have had regular discussions To ask Her Majesty’s Government whether they with the Governor, and with the Ascension Island will make representations to the Government of Administrator, on a range of issues relating to the Bangladesh about the refoulement of Rohingya security and good governance of Ascension. These asylum-seekers by Bangladesh; and whether they have included the possible role of Wideawake airport will propose that European Union aid be offered to in connection with the St Helena airport project, the United Nations High Commissioner for Refugees Ascension Island Government finances, an Island Council to facilitate the resettlement of Rohingya refugees by-election, and the sale of fishing licences. already in Bangladesh. [HL1193]

Autism Lord Howell of Guildford: We have raised this issue Question with the Government of Bangladesh as part of a recent European Union demarche. Asked by Lord Quirk Between 2007 and 2012, the European Union (EU) To ask Her Majesty’s Government whether, provided ¤13.85 million to non-governmental following the recent report by the All-Party organisations working in the field. Additionally, the Parliamentary Group on Autism, they will consider EU is funding a ¤3 million project in the region to the case for every school to have on its staff a support a refugee protection environment in Bangladesh. teacher with special expertise in teaching children The EU has also offered assistance to the Government with autistic spectrum disorders. [HL1220] of Bangladesh. WA 199 Written Answers[LORDS] Written Answers WA 200

Banks: Iceland China Question Question Asked by Lord Kennedy of Southwark Asked by Lord Empey To ask Her Majesty’s Government what progress To ask Her Majesty’s Government what they have made in securing the return of money representations they have made to the Government from Iceland following the collapse of Icelandic of China with a view to ensuring that the Chinese banks. [HL1182] currency is traded at global market prices and not held at artificially low levels. [HL1069] The Commercial Secretary to the Treasury (Lord Sassoon): Details of the loans to Icelandic banks as at 31 March 2011, including repayments and interest The Commercial Secretary to the Treasury (Lord received, can be found in Sections 33, 34 and 36 of the Sassoon): The Chancellor meets regularly with Chinese Treasury annual reports and accounts 2010-11. The counterparts to discuss a range of economic and report can be accessed via the following web link: financial issues. At a global level, the G20 has regular http://www.hm-treasury.gov.uk/d/ discussions on the causes of and response to global annual_report_accounts140711.pdf. imbalances, including the role to be played by exchange rates valued in line with market fundamentals. The Figures as at 31 March 2012 will shortly be published Prime Minister and the Chancellor have played their in the Treasury annual reports and accounts 2011-12. full part in these discussions, most recently at June’s Los Cabos G20 summit: http://www.g20.org/images/ stories/docs/g20/conclu/G20_Leaders_Declaration Banks: Lending _2012.pdf. Question Asked by Lord Myners To ask Her Majesty’s Government whether the Civil Service: Redundancy “funding for lending” programme requires European Question Union state aid approval; and, if not, why not. [HL1087] Asked by Lord Laird To ask Her Majesty’s Government, further to The Commercial Secretary to the Treasury (Lord the Written Answer by Lord Wallace of Saltaire on Sassoon): The Bank of England and the Treasury are 14 June (WA 265), how many staff working for the currently working together on the design of the scheme Foreign and Commonwealth Office and its agencies and further details will be released in the coming were made redundant or departed early last year; weeks. what were the costs under the Civil Service Compensation Scheme in (1) redundancy payments, (2) annual pension amounts payable immediately, Burma and (3) any lump sum retiring allowances; and what Question was the average redundancy payment. [HL1124] Asked by Baroness Uddin To ask Her Majesty’s Government whether they The Minister of State, Foreign and Commonwealth will co-ordinate an international response to aid Rohingya Office (Lord Howell of Guildford): Foreign and refugees seeking asylum in Bangladesh. [HL1225] Commonwealth Office (FCO)—a total of 102 staff left under the various voluntary exit schemes between March 2011 and March 2012. The total cost was The Minister of State, Foreign and Commonwealth £7,115,532. Office (Lord Howell of Guildford): The Government have been playing their part to encourage a co-ordinated The total annual pension amount payable for staff response to the recent events in Rakhine State, Burma. who have had access to their pension under the voluntary exit scheme was £869,527. The total lump sum for We, along with European Union partners, have those staff totalled £2,552,086. encouraged both Burma and Bangladesh to ensure the safety of civilians fleeing the intercommunal violence The average payment for staff who left under the in Rakhine State, and to work with the international various voluntary exit schemes was £69,760. community so that the victims of violence can have FCO Services—a total of 29 staff left under the access to humanitarian assistance. various voluntary exit schemes between March 2011 We fully acknowledge Bangladesh’s efforts in dealing and March 2012 at a total cost of £1,077,344. The with development and humanitarian issues in Cox’s total annual pension amount payable for staff who Bazar district over several decades, and understand have had access to their pension under the voluntary the difficulties accepting further refugees would cause exit schemes was £182,424 the total lump sum for for Bangladesh. However, it is vital that Bangladesh those staff totalled £537,700. continues to provide treatment for displaced individuals The average payment for staff who left under the in need of emergency medical care. various schemes was £47,997. WA 201 Written Answers[9 JULY 2012] Written Answers WA 202

Civil Service: Secondments The Minister of State, Ministry of Justice (Lord Question McNally): Arrangements already exist to assess young people on entry to custody for literacy, language and Asked by Baroness Nicholson of Winterbourne numeracy and, where appropriate, screen them for To ask Her Majesty’s Government how many dyslexia and other learning needs. A local authority staff, by department, are on secondment from the which was maintaining a statement of special educational civil service, and to which organisations; and how needs for a person immediately prior to their detention many external staff are currently seconded into the is also required to provide a copy of the statement. civil service, in which departments, and from which Education providers in custody use tests, such as the hidden disabilities questionnaire developed by Dyslexia organisations. [HL1060] Action, to test anyone who shows signs of having a learning difficulty or disability. This identifies a range Baroness Verma: Individual departments determine of learning difficulties, allowing the education provider the use of secondments and so these data are not held to refer the learner for further assessments and to centrally. arrange appropriate learning support to assist the learner in achieving their learning aims. Crime: Gun Grime Question Egypt Asked by Lord Storey Question To ask Her Majesty’s Government what strategies Asked by Lord Janner of Braunstone they have to (1) curtail the availability of guns in the community, and (2) encourage more people To ask Her Majesty’s Government what measures with knowledge of illegal gun use or possession to are being taken to ensure that British holiday-makers approach the police. [HL973] are safe in Egypt, and especially in Cairo, following reports of potential further protests after the result The Minister of State, Home Office (Lord Henley): of that country’s presidential election. [HL1048] The UK has some of the toughest firearms laws in the world. The Home Office works closely with the National The Minister of State, Foreign and Commonwealth Ballistics Intelligence Service (NABIS) and the Association Office (Lord Howell of Guildford): The Foreign and of Chief Police Officers (ACPO) on gun crime issues. Commonwealth Office (FCO) cannot ensure the safety NABIS and ACPO monitor trends in the illegal use of and security of British nationals because such issues firearms and work with local police forces to ensure are the responsibility of the Egyptian Government that they have the intelligence and support they need and authorities, in the same way that the UK authorities to address gun crime in their area. are responsible for the security of all individuals in the Strategies to encourage more people with knowledge UK. of illegal gun use or possession to approach the police We urge all British nationals travelling overseas to are police operational matters. check the FCO travel advice ahead of time. We constantly review the FCO travel advice to ensure that British Dogs: Guide Dogs nationals are aware of the risks they face when they go Question overseas. Our travel advice offers information and advice to help British citizens make their own informed Asked by Lord Morrow decisions about travelling to a particular country. We To ask Her Majesty’s Government, further to last updated the travel advice to Egypt on 26 June with the Written Answer by Lord Sassoon on 11 June advice to avoid all political demonstrations and large (WA 158), in the light of the feeding of guide dogs gatherings, especially those in Tahrir Square. We remain with a specialised feed which is different to the in contact with tour operators on the ground to keep standard dog food rated as pet food, whether they them informed. will apply a zero rate of VAT to food supplied for guide dogs. [HL1028] Embryology Question The Commercial Secretary to the Treasury (Lord Sassoon): Agreements with our European Union partners Asked by Lord Alton of Liverpool mean it is not possible to extend existing zero-rates or to introduce new ones. To ask Her Majesty’s Government, further to the Written Answers by Lord Darzi of Denham on 19 June 2008 (WA 178–86) and by Earl Howe on Dyslexia 22 November 2010 (WA 263), how many incidents Question of ovarian hyperstimulation syndrome (OHSS) causing Asked by Lord Quirk a patient to be hospitalised have been reported by clinics in each of the past five years; in how many To ask Her Majesty’s Government how they treatment cycles at least 20 eggs were collected over intend to make progress in speedily identifying and each of the last five years; how the Human Fertilisation addressing the incidence of dyslexia in young offender and Embryology Authority (HFEA) ensures that it institutions. [HL1222] is aware of all adverse incidents that require a hospital WA 203 Written Answers[LORDS] Written Answers WA 204

admission due to OHSS; what assessment the HFEA Energy: Emissions has made of the figure described in the journal Question Human Fertility (volume 10, issue 3, pages 183–7) that 14.5% of women from whom more than 20 eggs Asked by Lord Hunt of Chesterton are retrieved in a given treatment cycle are admitted to hospital; and what policy and care implications To ask Her Majesty’s Government what action they will take in response to the recent report of the these findings have. [HL1211] World Health Organisation about the danger to public health caused by emissions from diesel engines on land and at sea; and what action they will take, The Parliamentary Under-Secretary of State, Department in collaboration with industry and public and private of Health (Earl Howe): The Human Fertilisation and environmental organisations in the United Kingdom, Embryology Authority (HFEA) has advised that the to address this issue. [HL1086] number of cases of ovarian hyperstimulation syndrome (OHSS) reported as adverse incidents to the authority by its licensed clinics for each of the past five years is set out in the following table: The Parliamentary Under-Secretary of State, Department of Health (Earl Howe): The recent re-classification of Number of cases of OHSS diesel engine-exhaust by the International Agency for Year reported as adverse incidents Research on Cancer, from “probably carcinogenic to 2007 0** humans”to“carcinogenictohumans”,reflectsastrengthening 2008 64** of the evidence for this causal link to lung cancer. Long-term exposure to ambient particulate air pollution 2009 114* is already recognised as being associated with lung 2010 176* cancer deaths. Consideration of the public health benefit 2011 238 of policy options to reduce particulate pollution (which Notes: includes emissions from diesel engines) is based on * Information as previously provided in the Written Answer of their impact on total (ie all-cause) mortality, which 22 November 2010 (Official Report, col. WA 263) includes deaths from lung cancer attributable to air ** The requirement to report adverse incidents was confirmed by pollution. HFEA General Direction 0011, which came into force on 1 October 2009. Reporting of OHSS may have been variable The Department for Environment, Food and Rural before 1 October 2009 and explain the lower numbers in 2007 Affairs (Defra) and the relevant parts of the devolved and 2008. Administrations have responsibility for air quality policy Source: in the United Kingdom. Road transport is a key the Human Fertilisation and Embryology Authority contributor to primary particulate matter (PM) emissions, particularly in urban areas, while shipping emissions are an important contributor of the pre-cursors of Under the HFEA’s General Direction 0011, licensed secondary PM. Defra and the Department for Transport centres are required to report to the authority the are working together to reduce the air quality impact occurrence of any adverse incident, which includes of the transport sector, for example by working to OHSS that requires a hospital admission, and has a deliver cleaner air through policies such as improved severity grading of severe or critical. emissions standards for new vehicles. The HFEA has also advised that the number of licensable treatment cycles in which at least 20 eggs were collected during the years 2006 to 2010 (the most recent five years of verified data collected on its register) EU: Banking and Fiscal Union is set out in the following table: Question Number Asked by Lord Stoddart of Swindon of eggs Collected Number of treatment cycles in each year To ask Her Majesty’s Government whether any 2006 2007 2008 2009 2010 proposals for an EU-wide banking and fiscal union 20-29 2,246 2,429 2,617 2,817 3,053 would be subject to (1) a unanimous decision in the 30-39 349 357 330 335 418 EU Council and (2) a UK referendum. [HL1099] 40-49 42 37 45 48 50 50-59 7 3 10 13 16 60-69 3 4 Nil Nil 4 The Commercial Secretary to the Treasury (Lord 70-79 1 Nil Nil Nil Nil Sassoon): Whether proposals for a European Union-wide Source: banking and fiscal union would be subject to a unanimous the Human Fertilisation and Embryology Authority decision would depend entirely on the proposals being put forward. The UK is already part of, and supports, a single rule book for core minimum standards. However, The HFEA has advised it has made no assessment proposals such as common supervision, a shared depositor of the figure described in the journal Human Fertility protection scheme and common resolution of banks (volume 10, issue 3, pages 183-7) to which the noble should be for the euro area only, as they are a consequence Lord refers. of the single currency not the single market. WA 205 Written Answers[9 JULY 2012] Written Answers WA 206

EU: Citizenship The Commercial Secretary to the Treasury (Lord Question Sassoon): The Government’s priority is to return the UK economy to sustainable, balanced growth. To help Asked by Lord Stoddart of Swindon achieve this, the Government are focusing on creating the conditions for private sector investment and growth. To ask Her Majesty’s Government, further to This includes a competitive and stable tax system the Written Answer by Lord Henley on 21 June which provides business with the confidence to invest (WA 313–14), whether the European Union can and expand. claim to have citizens in its own right. [HL1310] The Government’s aim is to create the most competitive tax system in the G20. Alongside other reforms to the The Minister of State, Home Office (Lord Henley): corporate tax system, they have reduced the main rate Article 9 of the Treaty on the European Union states of corporation tax from 28% to 24% and have set out that “every national of a member state shall be a plans to further reduce it to 22% by April 2014. This citizen of the Union. Citizenship of the Union shall be will enhance the UK’s competitiveness and encourage additional to national citizenship and shall not replace investment. it”. The European Union therefore only derives its citizens from its constituent member states, and cannot claim to have citizens in its own right. Fraud: Excise Fraud Questions Exports Asked by Lord Kennedy of Southwark Question Asked by Baroness Nicholson of Winterbourne To ask Her Majesty’s Government what is their assessment of the effectiveness of the excise movement To ask Her Majesty’s Government how much and control system in reducing excise fraud. financing UK Export Finance provides for exports [HL1156] to low-income countries; and what percentage of To ask Her Majesty’s Government what is their its funds this represents, in each of the past 10 assessment of the effectiveness of the warehouse years. [HL1057] keepers and owners of warehoused goods regulations in reducing excise fraud. [HL1157] The Minister of State, Department for Business, Innovation and Skills & Foreign and Commonwealth To ask Her Majesty’s Government what is their Office (Lord Green of Hurstpierpoint): UK Export assessment of the effectiveness of the use of the Finance does not finance exports directly but provides administrative reference code in reducing excise support in the form of guarantees on bank loans. It fraud. [HL1158] has provided such support for exports to one low-income To ask Her Majesty’s Government what assessment country in the past 10 years. they have made of the efficacy of fiscal excise duty Categorisation of low-income countries is based on stamps on bottles of spirits. [HL1180] the World Bank’s latest (2011) classification of gross national income (GNI) per capita, being that a lower income country is one that has a GNI per capita of The Commercial Secretary to the Treasury (Lord $1,005 or less. Sassoon): The Excise Movement and Control System This information requested is set out in the table (EMCS) is contributing to the revenue outputs set out below. in Her Majesty’s Revenue and Customs’ (HMRC) tackling alcohol fraud strategy. For the first time, Percentage of HMRC and Border Force officials have access in real total maximum time to data on intra-EU movements of excise goods Maximum liability* in Financial year Country liability* of case financial year that help them better identify and target illicit movements of goods. Since the first phase of EMCS was implemented 2004-05 Kenya 13,410.555 0.67% on 1 April 2010, there has been a significant increase 2005-06 Kenya 9,352,076 0.42% in the revenue yield from registered consignees—businesses 2006-07 Kenya 6,016,752 0.33% authorised to receive duty suspended goods. In their * Maximum liability is defined as the maximum value of the report on Progress with HMRC’s renewed alcohol amount of claims payable under a particular guarantee, taking strategy, published in January this year, the NAO into account the principal and interest over the life of a guarantee attributed this increase to the fact that some consignments for which UK Export Finance could become liable. of excise goods that would otherwise have been diverted and sold illicitly on the UK market are no longer able Finance: Investment to escape detection. Question The Warehousekeepers and Owners of Warehouse Asked by Lord Empey Goods Regulations 1999 (WOWGR) are making an effective contribution to reducing excise fraud as they To ask Her Majesty’s Government what steps guard against unsuitable persons gaining access to they are taking, through fiscal policies, to encourage duty-suspended goods. Under the regulations warehouse the commercial holders of large cash reserves in the keepers and owners of goods in warehouse are required United Kingdom to invest them in projects that will to be approved by HMRC and are subject to rigorous stimulate growth and employment. [HL1070] scrutiny. Applications are rejected if the applicant WA 207 Written Answers[LORDS] Written Answers WA 208 does not pass a fit and proper test. The current rejection Baroness Stowell of Beeston: The Department for rate is 40%. Once approved the approval may be Energy and Climate Change had 32 civil servants revoked or varied at any time for reasonable cause, working within the private office of ministers and the such as evidence of duty fraud. Where duty fraud is permanent secretary on 1 June 2012. There were no identified, the warehousekeeper/owner may be subject people under the age of 21 or apprentices working in to criminal prosecution and/or heavy financial penalties. these areas at that time. HMRC will seek to recover duty losses and may issue civil penalties. Government Departments: Codes of The administrative reference code (ARC) is key to the effectiveness of the Excise Movement and Control Conduct System (EMCS) in helping to reduce excise fraud. Question Each movement of duty-suspended excise product can Asked by Lord Lester of Herne Hill be identified by its own unique reference number on EMCS. This can be accessed 24/7 by HMRC and To ask Her Majesty’s Government, further to Border Agency staff at any time giving complete visibility the Written Answers by Lord Wallace of Saltaire to movements that was not available under the previous on 11 June (WA 152 and WA 169), what mechanisms paper-based system. Any movement of duty-suspended exist to ensure that (1) civil servants, and (2) special excise goods that is not accompanied by a valid ARC advisers, act at all times in accordance with their is liable to seizure. Assessments for duty owing and respective Codes of Conduct. [HL752] penalties may also be raised. Spirits duty stamps were introduced in 2006 as a Baroness Verma: The Civil Service Code and the key plank of HMRC’s original strategy to address Code of Conduct for Special Advisers form part of alcohol duty fraud. Estimated revenue losses from the terms and conditions of appointment for civil spirits fraud were £320 million in that year. They servants and special advisers. reduced to £130 million by the end of 2009-10. As such, individual civil servants and special advisers are personally responsible for ensuring they conduct themselves in accordance with the provisions of the Civil Service Code and the Code of Conduct for Government Departments: Apprentices Special Advisers. Questions Government Departments: Interns Asked by Lord Adonis Questions To ask Her Majesty’s Government how many Asked by Lord Willis of Knaresborough apprentices (1) under the age of 21, and (2) over the age of 21, were employed within the Department To ask Her Majesty’s Government how many for Education on 1 June, excluding agencies and interns on the Civil Service Fast Stream Summer non-departmental public bodies. [HL960] Diversity Programme in 2011–12 (1) came from ethnic minority communities, (2) were educated in state comprehensive schools, (3) attended universities outside the Russell Group, and (4) lived outside the The Parliamentary Under-Secretary of State for Home Counties. [HL1227] Schools (Lord Hill of Oareford): The department has recruited 41 apprentices since 2008. Of this group To ask Her Majesty’s Government whether there 26 secured a permanent job here, or in other departments; isanyrequirementforcompaniesinreceiptof Government two went onto further education; eight completed the procurement contracts to offer paid internships for programme and left to pursue other job opportunities; graduates, or apprenticeships. [HL1228] and five did not complete the programme. The department currently has 11 members of staff working through its Baroness Warsi: The Civil Service Fast Stream Summer apprentice programme (they have permanent rather Diversity Programme 2011-12 (taking place during than fixed-term contracts and are therefore classed as summer 2012) placed 99 interns from ethnic minority full time employees in line with the Civil Service policy communities (87.6% of those confirmed on the on apprenticeships). The department is about to begin programme), 58 interns who were educated in state a recruitment process for its next cohort of apprentices comprehensive schools (51.33% of those confirmed with an estimated 40 apprentices joining in the autumn; on the programme), 47 interns who attended universities they will work across a range of functions and sites. outside the Russell Group (41.59% of those confirmed Asked by Lord Adonis on the programme), and 50 interns who lived outside the Home Counties (including London as part of the To ask Her Majesty’s Government what was the Home Counties region, 44.25% of those confirmed on total number of staff employed within the private the programme). offices of ministers and the permanent secretary at We are expecting 120 intern participants on the the Department of Energy and Climate Change on 6-9 week 2012-13 Whitehall Internship Programme 1 June; and how many of them were (1) under the for graduate level students. The weekly training allowance age of 21, (2) apprentices under the age of 21, and for the graduate programme is £350 for interns working (3) apprentices over the age of 21. [HL1114] in London and £300 for interns working outside London. WA 209 Written Answers[9 JULY 2012] Written Answers WA 210

The UK Government meet the travel costs at the start population distribution of changes in the rates of and end of the internship period, by covering expenses Local Housing Allowance and Universal Credit on for travel to the opening and closing receptions. the National Health Service’s ability to provide We are expecting 60 intern participants on the two effective services at a time when it will undergo week 2012-13 Whitehall Internship Programme for structural changes. [HL1204] college level (16-18 years old) students. They will be To ask Her Majesty’s Government what assessment provided with accommodation, travel and a £20 daily they have made of the impact of rebalanced support training salary in the form of subsistence payments. provided for housing costs through local housing All travel costs to and from interns’ homes at the allowance or universal credit on the National Health start and end of the internship will be met by the UK Service’s ability to treat (1) mental illnesses and (2) Government. tuberculosis. [HL1205] We are expecting 120 intern participants on the one day 2012-13 Whitehall Internship Programme for year nine school students. All travel costs to and from interns’ The Parliamentary Under-Secretary of State, Department homes at the start and end of the internship will be of Health (Earl Howe): No assessment has been made met by the Cabinet Office. Interns will not be paid a of the impact of changes to local housing allowance training allowance to attend the one day event as these rates on the likely distribution of the population or on are secondary school level (13-14 years old) students. the provision of healthcare by the National Health Service. The Department for Work and Pensions (DWP) has commissioned an independent review of the impact Government Departments: Legal Payments of changes to local housing allowance, which provides Question evidence on claimants’ and landlords’ responses to the changes. The DWP published a report of early findings Asked by Lord Laird on 14 June and a copy of the report has already been placed in the Library. Final decisions on rates of To ask Her Majesty’s Government what payments universal credit have not yet been taken. were made by the Ministry of Defence to (1) Clifford Chance, (2) Freshfields, (3) Slaughter and May, (4) Health and Wellbeing Boards will have a key role in Allen and Overy, and (5) Linklaters, in (a) 2008–09, helping ensure that the accommodation needs of people (b) 2009–10, (c) 2010–11, and (d) 2011–12; and to with mental health problems or tuberculosis who are what those payments related. [HL914] homeless are addressed in a co-ordinated manner. The National Institute for Health and Clinical The Parliamentary Under-Secretary of State, Ministry Excellence has published guidance for the NHS and of Defence (Lord Astor of Hever): The only two companies partner organisations, such as local authorities, on who received payments from the Ministry of Defence identifying and managing tuberculosis among hard-to- were: reach groups, including homeless people. This guidance recommends that homeless people should be provided Company with accommodation during treatment, irrespective of Name 2009-10 2010-11 2011-12 their eligibility for state-funded accommodation. £££

Freshfields 55,000 485,000 288,000 Allen & Overy 0 0 26,000 Heritage Lottery Fund Question Freshfields has been involved in Project Marshall (the procurement of an air traffic control system) at Asked by Lord Alton of Liverpool Air Command and in DIO Transformation. Allen and To ask Her Majesty’s Government what Heritage Overy provided legal advice relating to Project Spectrum, Lottery funding has been allocated for projects in the sale of radio frequency spectrum. Englandovereachof thepast10years;andwhatpercentage of those funds have been used in (1) the North-West Health: Local Housing Allowance and of England, and (2) Lancashire. [HL1079] Universal Credit Questions Viscount Younger of Leckie: Heritage Lottery funding Asked by Lord Crisp allocated for projects in England over the past 10 years, and the percentage of those funds that have To ask Her Majesty’s Government what assessment been used in (1) North-West England and (2) Lancashire, they have made of the impact on United Kingdom is set out in the following table:

England North-West England Lancashire

Percentage of England Percentage of England Year Funding (£m) Funding (£m) Funding Funding (£m) Funding

2002-03 284.16 32.91 11.58 19.76 6.95 2003-04 275.81 30.20 10.95 18.77 6.81 WA 211 Written Answers[LORDS] Written Answers WA 212

England North-West England Lancashire Percentage of England Percentage of England Year Funding (£m) Funding (£m) Funding Funding (£m) Funding

2004-05 276.74 28.64 10.35 8.72 3.15 2005-06 249.54 41.74 16.73 20.07 8.04 2006-07 246.87 41.53 16.82 13.32 5.40 2007-08 234.44 32.42 13.83 13.48 5.75 2008-09 131.85 25.16 19.08 12.30 9.33 2009-10 81.87 9.81 11.98 5.47 6.68 2010-11 163.89 26.70 16.29 19.26 11.75 2011-12 231.97 29.84 12.86 11.93 5.14 Total 2,177.14 298.95 13.73 143.08 6.57

House of Lords: Legislation Immigration: Children Question Question Asked by Lord Hunt of Chesterton Asked by Lord Foulkes of Cumnock To ask Her Majesty’s Government whether they To ask Her Majesty’s Government, further to will provide all members of the House of Lords the Written Answer by Lord Henley on 28 May with the same guidance that is provided to ministers (WA 112), where each of the 99 children detained in about the interpretation of legislation by the courts, 2011 were kept in detention; and how many children based on the Pepper v Hart case in 1994. [HL1085] are currently held in detention. [HL1198]

The Chancellor of the Duchy of Lancaster (Lord Strathclyde): There is no specific document providing The Minister of State, Home Office (Lord Henley): guidance to ministers on the interpretation of legislation The requested information is not currently available. or the effect of Pepper v Hart. Information on children held in detention is counted on a quarterly snapshot taken as at 31 March, 30 June, 30 September and 31 December of each year. The Immigration latest published figures as at 31 March 2012 show that Question there was one child in detention. The Home Office releases statistics on detention, Asked by Lord Condon solely under Immigration Act powers on a quarterly To ask Her Majesty’s Government what is their basis, within Immigration Statistics, which are available most recent assessment of the impact of the measures from the Library of the House and from the Home taken by the French authorities to inhibit the movement Office’s Science, Research and Statistics website at: of potential illegal immigrants from the Calais http://homeoffice.gov.uk/science-research/research- region to ports in Kent. [HL1195] statistics/.

The Minister of State, Home Office (Lord Henley): Border Force and the French authorities are committed to combating illegal immigration and improving border Internet: Personal Data security through increased joint working at the Northern Question French ports. Asked by Lord Stoddart of Swindon Following the signing by the UK and French Ministers of immigration agreements in 2009 and 2010, Border To ask Her Majesty’s Government whether they Force has co-operated closely with the French authorities intend to take action to prevent Google or any to fight against illegal migration and trafficking networks other organisation from over-flying private property by implementing a number of measures and initiatives. to gather details by electronic means of the property This has included the closure by French authorities of and those occupying it. [HL1102] the illegal encampment known as the “jungle” in Calais in 2009, the implementation of a Coordination Centre, which created a multi agency and collaborative approach to the challenges of border control, and deployment The Minister of State, Ministry of Justice (Lord of improved technologies. The French authorities have McNally): Where personal data are collected in this continued to take swift action to dismantle any illegal manner, their processing would be governed by the camps in the Calais area. requirements of the Data Protection Act 1998 which is These measures and initiatives have resulted in a enforced independently of Government by the Information decrease in the number of individuals attempting to Commissioner. There would also be a role for the Civil cross the channel illegally with just over 9,600 during Aviation Authority in enforcing the requirements of 2011 compared to over 29, 000 in 2009. the Air Navigation Order 2005. WA 213 Written Answers[9 JULY 2012] Written Answers WA 214

Iran clear that decisions are not yet imminent. We hope Question that this process will result in an agreed and satisfactory solution. Asked by Lord Stoddart of Swindon Asked by Lord Hylton To ask Her Majesty’s Government whether Iran is in compliance with the provisions of the Nuclear To ask Her Majesty’s Government what discussions Non-Proliferation Treaty. [HL1101] they have had with the Government of Israel about the Palestinians living in the strip between the Green Line and the West Bank barrier and the people with The Minister of State, Foreign and Commonwealth West Bank identities living on the Jerusalem side of Office (Lord Howell of Guildford): The Non-Proliferation the barrier; and what representations they have Treaty (NPT) obliges non-nuclear weapon states parties made about the access of those people to healthcare to conclude a comprehensive safeguards agreement and education. [HL1120] with the International Atomic Energy Agency (IAEA) and in 2005, the IAEA Board of Governors detailed “Iran’s many failures and breaches of its obligations to comply with its NPT Safeguards Agreement”. Lord Howell of Guildford: The UK position on the Furthermore, the latest report by the director-general separation barrier is clear: if Israel wished to build the of the IAEA to its Board of Governors states that: barrier, it should have been built on the 1967 border—and “contrary to its safeguards agreement and relevant where it is constructed on the Palestinian side of that resolutions of the Board of Governors and Security border, it is illegal under international law. The routing Council, Iran is not implementing the provisions of of the separation barrier through Palestinian agricultural the modified Code 3.1 of the Subsidiary Arrangements land, often prevents communities from pursuing their General Part to Iran’s Safeguards Agreement”. The traditional livelihoods. same report also sets out a number of concerns about We regularly make representations on these issues possible military dimensions to Iran’s nuclear programme. to the Government of Israel. We will continue to As a non-nuclear weapon state party to the NPT, Iran argue for a just outcome for all the people affected by has undertaken not to manufacture or otherwise acquire illegal settlement construction and the confiscation of nuclear weapons. These issues are therefore extremely land due to the separation barrier. concerning. We remain deeply concerned about restrictions on In addition, the IAEA Board of Governors has freedom of movement between the West Bank and repeatedly concluded that Iran is not complying with East Jerusalem. It remains difficult for Palestinians to United Nations Security Council Resolutions requiring enter East Jerusalem for work, education, medical it to suspend all enrichment-related activities and work treatment or religious worship. Through our embassy on all heavy water-related projects. in Tel Aviv, we have lobbied the appropriate authorities on the issue of movement and access. We continue to work closely with the quartet and European Union Israel and Palestine partners, and to call on Israel to ease restrictions on Questions access. Asked by Lord Hylton Asked by Lord Hylton To ask Her Majesty’s Government what To ask Her Majesty’s Government what representations they will make to the Government representations they have made to the Government of Israel about members of the Jahalin tribe of of Israel about harassment of the residents of the Palestinian Bedouin who wish to return to their Al Baqa’a Bedouin community and of the Burin original tribal lands in the Negev in Israel. [HL1119] cluster of villages near Nablus. [HL1121]

The Minister of State, Foreign and Commonwealth Office (Lord Howell of Guildford): We have concerns Lord Howell of Guildford: We are deeply concerned about the Israeli Government’s plans for relocation of at the increase in violence by extremist settlers against thousands of Bedouin in the Negev. This was a major ordinary Palestinians. Officials from our embassy in focus of the visit of the Parliamentary Under-Secretary Tel Aviv have raised our concerns about this issue with of State at the Foreign and Commonwealth Office, my Israeli Defence Minister Barak. honourable friend the Member for North East The Parliamentary Under-Secretary of State at the Bedfordshire (Mr Burt) to Israel and the Occupied Foreign and Commonwealth Office, my honourable Palestinian Territories on 8-11 January. Mr Burt met friend the Member for North East Bedfordshire (Mr Burt) with Israeli Minister Begin during his visit, to raise issued a statement on 22 June condemning a recent these concerns and encourage further dialogue between incident in which a mosque in the West Bank town of the Israeli Government and Bedouin representatives. Jaba was vandalised. Mr Burt called upon the Israeli Our embassy in Tel Aviv is also in regular contact authorities to bring those responsible to justice in all with Bedouin leaders and activists and our ambassador such cases occurring in the areas under Israeli control. to Tel Aviv has discussed the Israeli Government’s We have also discussed settler violence with our plans with the Speaker and Deputy Speaker of the European Union (EU) partners, including at the EU Knesset and Minister Begin. Extensive consultations Foreign Affairs Council on 14 May (www.eu-un.europa. with the Bedouin community are under way and it is eu/articles/en/article_12170_en.htm) where EU Foreign WA 215 Written Answers[LORDS] Written Answers WA 216

Ministers condemned continuous settler violence and The Minister of State, Ministry of Justice (Lord deliberate provocations against Palestinian civilians McNally): There are no immediate plans to implement and called on the Government of Israel to bring the these provisions; however we are considering it as part perpetrators to justice and to comply with their obligations of wider policy developments. It should be noted that, under international law. if necessary, the judiciary can already grant the use of an intermediary to assist vulnerable defendants to Asked by Lord Hylton ensure a fair trial. To ask Her Majesty’s Government what representations they have made to the Government of Israel about the eviction of Palestinian Bedouin Lord’s Resistance Army refugees from their homes in Khalayleh, north of Questions Jerusalem, and the subsequent demolition of those Asked by Lord Alton of Liverpool homes. [HL1122] To ask Her Majesty’s Government how many documented acts of violence committed by the Lord Howell of Guildford: We have repeatedly made Lord’s Resistance Army have occurred over the last clear to the Israeli authorities our serious concern at 12 months; what estimates have been made of the 40% increase last year, as recorded by the United the numbers of militias currently at large; and Nations, in demolitions of Palestinian properties. We how many people have been killed, injured or view such demolitions and evictions as causing displaced. [HL1286] unnecessary suffering to ordinary Palestinians; as harmful to the peace process; and, in all but the most limited circumstances, as contrary to international humanitarian The Minister of State, Foreign and Commonwealth law. Office (Lord Howell of Guildford): Information from a While we have not raised this specific case with the range of sources, including the United Nations and Israeli authorities, we and European Union partners non-governmental organisations, indicates that the Lord’s have repeatedly expressed concern about the threatened Resistance Army (LRA) now numbers between 250 and and actual demolition of Palestinian homes in East 500 combatants. The United Nations Office for the Jerusalem and in those parts of the West Bank under Co-ordination of Humanitarian Affairs (UN OCHA) full Israeli control. The Parliamentary Under-Secretary reported 278 LRA attacks between January and December of State at the Foreign and Commonwealth Office, my of 2011. These attacks resulted in 120 deaths and honourable friend the Member for North East 302 abductions. UN OCHA noted a slight decrease in Bedfordshire (Mr Burt) raised our concerns about LRA attacks in the final quarter of 2011. demolitions and evictions with the Israeli ambassador The United Nations Regional Office for Central to London on 23 February, the Deputy Israeli Foreign Africa (UNOCA) reports 53 attacks attributable to Minister on 28 February and the Deputy Israeli Prime the LRA in the first quarter of 2012. These have Minister on 19 March. resulted in the deaths of nine civilians, 54 abductions and more than 4,000 displacements. Reporting for the Asked by Lord Hylton second quarter of 2012 is not yet available. To ask Her Majesty’s Government what is their Asked by Lord Alton of Liverpool response to the report Children in military custody on the imprisonment conditions of Palestinian To ask Her Majesty’s Government what plans children in Israel; and what new action they will they have put in place to support the UN Regional undertake. [HL1207] Strategy on the Lord’s Resistance Army, as endorsed by the Security Council on 29 June; what assessment they have made of the resource gaps referred to in Lord Howell of Guildford: The Children in Military the strategic document; and what actions they intend Custody report was an independent study produced by to take to fill those gaps. [HL1288] a team of leading British lawyers and funded by the UK Government. Whilst we recognise that some positive recent steps have been taken to improve the treatment Lord Howell of Guildford: At the Security Council of Palestinian children in the Israeli military justice session on 29 June, the UK urged the United Nations system, we share many of the report’s concerns. We (UN) to develop a costed implementation plan for the are engaging with the Israeli authorities to encourage new Lord’s Resistance Army (LRA) Regional Strategy, further improvements. identifying the resource gaps. Any resource decisions will be made in light of this implementation plan. The UK already supports programmes that address certain elements of the new UN Regional Strategy. Justice: Intermediaries For instance, this financial year we have provided Question £384,000 towards the disarmament, demobilisation, Asked by Lord Bradley repatriation, resettlement and reintegration (DDRRR) programme being undertaken by the Congolese authorities To ask Her Majesty’s Government when the in conjunction with the UN Peacekeeping Operation provisions on the use of intermediaries for defendants, (MONUSCO) in the Democratic Republic of Congo. contained in the Coroners and Justice Act 2009, This has successfully reduced LRA numbers through will be implemented. [HL1159] encouraging defections. We are pleased that the UN has WA 217 Written Answers[9 JULY 2012] Written Answers WA 218 decided to replicate this programme across the entire NHS: Procurement area affected by the LRA. The UK is also providing Questions UNICEF with £500,000 over the next two years to work with the African Union Regional Task Force to Asked by Lord Hunt of Kings Heath develop their standard operating procedures to improve their protection of women and children. To ask Her Majesty’s Government what assessment they have made of the likely impact of European Union proposals for a new public procurement Malaysia directive on the National Health Service and social Question care. [HL1170] Asked by Lord Avebury To ask Her Majesty’s Government what assessment they have made of the likely scale of changes in To ask Her Majesty’s Government whether they transaction costs for the National Health Service will provide an update on their negotiations with resulting from European Union proposals for a the Malaysian authorities on the status and future new public procurement directive. [HL1270] of Malaysian British Overseas Citizens living in the United Kingdom, who have renounced their Malaysian To ask Her Majesty’s Government what assessment citizenship. [HL1275] they have made of the impact on the National Health Service of European Union proposals for a The Minister of State, Home Office (Lord Henley): new public procurement directive on integration of My noble friend has raised the issue of Malaysian services between NHS bodies. [HL1271] British Overseas Citizens in the UK in recent correspondence. I will reply by separate cover addressing The Parliamentary Under-Secretary of State, Department his concerns on this matter. of Health (Earl Howe): Negotiations between the United Kingdom and the European Commission on the proposals for a new public procurement directive will continue Ministry of Defence: Police throughout 2012. It would not be appropriate to make Question an assessment at this time on the impact of potential Asked by Lord Rosser changes to the directive, including transaction costs, to the National Health Service or social care. To ask Her Majesty’s Government what role the Ministry of Defence Police have in (1) protecting ships that have sunk, or have been sunk, and (2) in Overseas Aid investigating actual and suspected cases of such Question ships being disturbed and goods and other articles removed; and what is their estimate of the impact Asked by Baroness Nicholson of Winterbourne on that role of the reductions in the number of To ask Her Majesty’s Government what percentage Ministry of Defence Police. [HL1213] of United Kingdom official development assistance has gone to states they consider to be “fragile” every The Parliamentary Under-Secretary of State, Ministry year for the last five years, and to which countries; of Defence (Lord Astor of Hever): The Ministry of and whether they are on track to reach their 30% Defence Police (MDP) will, subject to available resources target. [HL1058] and competing priorities, undertake criminal investigations into complaints of designated wrecks being tampered with or where items have been removed without authority. Baroness Northover: The UK Government committed The MDP criminal investigative capability will focus in the Building Stability Overseas Strategy (2011) to on crimes that most significantly affect the defence focus on those fragile and conflict-affected countries interest. or regions where the risks are high, our interests are most at stake and where we know we can have an impact. This means that DfID will in future years NHS: Mergers focus our assistance in fewer countries. Of the 28 countries Question in which DfID will focus bilateral assistance, 21 are considered fragile or conflict affected countries. These Asked by Lord Warner countries are: To ask Her Majesty’s Government what guidance Afghanistan; Bangladesh; Burma; DR Congo; Ethiopia; has been given to NHS bodies by (1) the Department Kenya; Liberia; Malawi; Nepal; Nigeria; Occupied of Health, or (2) Monitor, about what NHS healthcare Palestinian Territories; Pakistan; Rwanda; Sierra Leone; activities or organisations constitute an enterprise Somalia; Sudan (since July 2011, also South Sudan) ; under European Union competition law in the event Tajikistan; Uganda; Yemen and Zimbabwe. of a merger of such activities or bodies. [HL1202] DfID has set out the results that will be delivered in each of these countries and planned bilateral assistance The Parliamentary Under-Secretary of State, in its operational plans. On the basis of these projections, Department of Health (Earl Howe): None. Guidance we are confident that we are on track to meet the 30% on the application of the Enterprise Act 2002 to target in 2014-15. Further details of all DfID operational mergers within the United Kingdom is a matter for the plans can be found at http://www.dfid.gov.uk/What-we- Office of Fair Trading. do/Publications. WA 219 Written Answers[LORDS] Written Answers WA 220

The table below shows for each of the past five Security: Private Companies years the percentage of United Kingdom official Questions development assistance (ODA) provided to fragile or conflict affected states. Figures for 2011 are provisional Asked by The Lord Bishop of Wakefield and do not yet fully reflect country specific expenditure. To ask Her Majesty’s Government how much Year Fragile States ODA* as % of Total UK ODA they spent on hiring private military and security companies in 2009, 2010 and 2011. [HL1024] 2007 26% 2008 27% To ask Her Majesty’s Government what were the 2009 26% range of activities private military and security 2010 23% companies were contracted to undertake on behalf 2011 25% of Her Majesty’s Government in 2009, 2010 and 2011. [HL1025] * Official Development Assistance The Minister of State, Foreign and Commonwealth Details of recipient countries for UK aid for the Office (Lord Howell of Guildford): Private security past five years are available in our annual Statistics on companies (PSCs) are contracted to carry out a variety International Development publication (http://www. of important activities and duties including the static DfID. gov.uk/About-us/How-we-measure-progress/Aid protection of premises, alarm monitoring and rapid -Statistics/Statistics-on-International-Development- response services, in addition to the close protection of 2011). DfID classifies countries as fragile if they scored personnel. 3.2 or less on the CPIA or appear on failed state index alert listing or are lower income countries appearing They play a vital and necessary protective role in in Uppsala list of countries recently affected by conflict. hostile environments, and enable the Government and partner organisations to carry out their work in countries such as Afghanistan, Iraq and Libya by providing Police and Crime Commissioners essential security services, as well as ensuring operational Question non-governmental organisations are able to carry out important humanitarian work. Asked by Lord Condon The Foreign and Commonwealth Office (FCO) has To ask Her Majesty’s Government how many centrally awarded contracts to PSCs in conflict zones independent, non-party-political candidates have to a value of approximately: registered for election to the posts of police and crime 2009-10—£47 million; commissioners in the November elections. [HL1194] 2010-11—43 million; and 2011-12—£47 million. The Minister of State, Home Office (Lord Henley): The Government do not hold this information. This specifically covers key contracts in Afghanistan and Iraq primarily, but also Libya and Yemen more recently. These contracts are widely used by other Private Sector: Accountants government departments. Question Details of locally awarded contracts beyond the above are not held centrally and could only be obtained Asked by Lord Lea of Crondall at disproportionate cost. To ask Her Majesty’s Government over the past Asked by The Lord Bishop of Wakefield 30 years, what has been the percentage change in the number of accountants employed in the private To ask Her Majesty’s Government what budgetary sector; and what has been the percentage change in allocation they have made for the hiring of private the number of tax inspectors employed in HM Revenue military and security companies in 2012 and and Customs. [HL1144] 2013. [HL1026]

The Commercial Secretary to the Treasury (Lord Lord Howell of Guildford: The Foreign and Sassoon): Her Majesty’s Revenue and Customs (HMRC) Commonwealth Office (FCO) is responsible for promoting does not have year on year details of the number of British interests in some of the most difficult and accountants employed in the private sector over the fragile environments worldwide. The FCO has a legal past 30 years. However, based on usage and attitude duty of care to take reasonable steps to protect its staff research carried out in 2007-08 the number of tax from reasonably foreseeable harm which might occur agents was estimated at 116,000. from working in these environments. Using private Similarly, HMRC does not have 30-year data recording security companies is a cost effective way of providing the number of tax inspectors employed in the then one element of this risk mitigation. As with all commercial Inland Revenue. arrangements the FCO enters into, we invite a number Currently, there are 17,000 tax professionals in of companies to bid for FCO private security contracts HMRC. Of these, approximately 10,000 are at the to ensure that we get the best possible value for money. higher officer grade or above, which would have been The bulk of the FCO’s expenditure on private the minimum level for the tax inspector grade in the security companies is in support of the UK’s missions former Inland Revenue. in Afghanistan, Iraq, Libya and Yemen, where the WA 221 Written Answers[9 JULY 2012] Written Answers WA 222 threat to FCO staff is particularly high. In financial Tobacco year 2012-13, approximately £41.7 million has been Question allocated to pay for the services of private security companies in these high threat and other overseas Asked by Lord Stoddart of Swindon environments. To ask Her Majesty’s Government whether they In addition, some posts in our network of posts have clinical evidence that tobacco is as adverse to overseas directly hire PSCs to guard their buildings. health as cocaine and cannabis. [HL1314] These details are not recorded centrally and to provide them would incur disproportionate cost. The FCO reviews the appropriateness of the protection The Parliamentary Under-Secretary of State, we provide to staff on a regular basis. The budgetary Department of Health (Earl Howe): Information on provision for contracting private security companies the health harms of a range of licit and illicit substances (PSC) in financial year 2013-14 will depend on our commonly used in the United Kingdom, including assessment of the threat in each of the countries in tobacco, cocaine and cannabis, is contained in the which we work at that time. document published by the department in August Other government departments may also employ 2011: A Summary of the Health Harms of Drugs: A PSCs at home and overseas. These details are also not Guide to the Risks and Harms Associated with Substance recorded centrally and to provide them would incur Misuse. A copy of this document has already been disproportionate cost. placed in the Library.

Sterling Turks and Caicos Question Questions Asked by Lord Myners Asked by Lord Jones of Cheltenham To ask Her Majesty’s Government, further to the answer by the Prime Minister on 25 June (Official To ask Her Majesty’s Government what is the Report, Commons, col. 40), when sterling ceased to planned timescale for the introduction of value added tax in the Turks and Caicos Islands.[HL1147] be a reserve currency. [HL1293]

The Commercial Secretary to the Treasury (Lord The Minister of State, Foreign and Commonwealth Sassoon): The US dollar is currently the dominant Office (Lord Howell of Guildford): The introduction of reserve currency. The United States is able to benefit value added tax (VAT) is a decision for the Turks and economically from having that currency status. Sterling Caicos Islands Government. A decision to introduce is still held as a reserve currency. Sterling was the third VAT was announced in the 2011-12 budget statement. most widely held reserve currency after the US dollar This decision was based on thorough research and an and the euro at the end of 2011, according to the assessment that VAT would offer a simpler, equitable International Monetary Fund’s Currency Composition and stable revenue source. A Green Paper on VAT of Official Foreign Exchange Reserves database. Holdings implementation was published in May and consultation of sterling in official foreign exchange reserves throughout is under way on this. VAT will be implemented from the world totalled approximately $216 billion at the 1 April 2013. end of 2011. Asked by Lord Jones of Cheltenham To ask Her Majesty’s Government what is their Sudan estimate of the revenue which will be raised by the Question introduction of value added tax in the Turks and Asked by Baroness Kinnock of Holyhead Caicos Islands. [HL1148] To ask Her Majesty’s Government whether they will clarify the increased security warning on Sudan Lord Howell of Guildford: The introduction of value issued by the Foreign and Commonwealth Office added tax (VAT) is a decision for the Turks and Caicos which refers to a “kidnap threat”. [HL1188] Islands Government. A decision to introduce VAT was announced in the 2011-12 budget statement. This The Minister of State, Foreign and Commonwealth decision was based on thorough research and an Office (Lord Howell of Guildford): Our travel advice assessment that VAT would offer a simpler, equitable aims to offer objective assessments of the risks to and stable revenue source. A Green Paper on VAT British nationals in Sudan. We use several sources to implementation was published in May and consultation assess the security warnings in the travel advice including is under way on this. VAT will be implemented from from security and intelligence agencies, open source 1 April 2013. and media reporting, local knowledge, reports from Asked by Lord Jones of Cheltenham our embassies and diplomatic reporting. Based on these sources, we believe there is a threat of kidnapping To ask Her Majesty’s Government what assessment throughout the country and have set this out as clearly they have made of the likely impact of the introduction as we are able in our travel advice for Sudan. Travel of value added tax on the economy of the Turks advice is regularly reviewed and updated. and Caicos Islands. [HL1149] WA 223 Written Answers[LORDS] Written Answers WA 224

Lord Howell of Guildford: The introduction of value assessment that VAT would offer a simpler, equitable added tax (VAT) is a decision for the Turks and Caicos and stable revenue source. A Green Paper on VAT Islands Government. A decision to introduce VAT implementation was published in May and consultation was announced in the 2011-12 budget statement. This is under way on this. VAT will be implemented from decision was based on thorough research and an 1 April 2013. Monday 9 July 2012

ALPHABETICAL INDEX TO WRITTEN STATEMENTS

Col. No. Col. No. Building Societies ...... 73 Justice and Security Bill...... 79

Disabled People: Blue Badge Scheme...... 73 Local Audit Bill ...... 79 Nuclear Disarmament ...... 81 Disabled People: Elected Office ...... 74 Office of the Children’s Commissioner for England...... 83 ECOFIN ...... 75 Presumption of Death ...... 84 EU: Cypriot Presidency...... 76 Questions for Written Answer: Summer Recess ...... 85

Exports: Tasers ...... 77 Taxation: Oil and Gas Investment ...... 85

Flooding...... 78 Visas ...... 86

Monday 9 July 2012

ALPHABETICAL INDEX TO WRITTEN ANSWERS

Col. No. Col. No. Ascension Island ...... 197 Government Departments: Codes of Conduct...... 208

Autism ...... 197 Government Departments: Interns ...... 208

Bangladesh ...... 198 Government Departments: Legal Payments...... 209

Banks: Iceland ...... 199 Health: Local Housing Allowance and Universal Credit . 209

Banks: Lending...... 199 Heritage Lottery Fund...... 210

Burma...... 199 House of Lords: Legislation ...... 211

China...... 200 Immigration...... 211

Civil Service: Redundancy ...... 200 Immigration: Children ...... 212

Civil Service: Secondments ...... 201 Internet: Personal Data...... 212

Crime: Gun Grime...... 201 Iran...... 213

Dogs: Guide Dogs ...... 201 Israel and Palestine ...... 213

Dyslexia...... 201 Justice: Intermediaries ...... 215

Egypt ...... 202 Lord’s Resistance Army...... 216

Embryology ...... 202 Malaysia ...... 217

Energy: Emissions...... 204 Ministry of Defence: Police ...... 217

EU: Banking and Fiscal Union...... 204 NHS: Mergers...... 217

EU: Citizenship ...... 205 NHS: Procurement ...... 218

Exports ...... 205 Overseas Aid...... 218

Finance: Investment...... 205 Police and Crime Commissioners...... 219

Fraud: Excise Fraud ...... 206 Private Sector: Accountants...... 219

Government Departments: Apprentices...... 207 Security: Private Companies ...... 220 Col. No. Col. No. Sterling ...... 221 Tobacco ...... 222

Sudan...... 221 Turks and Caicos ...... 222 NUMERICAL INDEX TO WRITTEN ANSWERS

Col. No. Col. No. [HL752] ...... 208 [HL1158] ...... 206

[HL914] ...... 209 [HL1159] ...... 215

[HL960] ...... 207 [HL1164] ...... 198

[HL973] ...... 201 [HL1170] ...... 218

[HL1024] ...... 220 [HL1180] ...... 206

[HL1025] ...... 220 [HL1182] ...... 199

[HL1026] ...... 220 [HL1188] ...... 221

[HL1028] ...... 201 [HL1193] ...... 198

[HL1048] ...... 202 [HL1194] ...... 219

[HL1057] ...... 205 [HL1195] ...... 211

[HL1058] ...... 218 [HL1198] ...... 212

[HL1060] ...... 201 [HL1202] ...... 217

[HL1069] ...... 200 [HL1204] ...... 210

[HL1070] ...... 205 [HL1205] ...... 210

[HL1079] ...... 210 [HL1207] ...... 215

[HL1085] ...... 211 [HL1211] ...... 203

[HL1086] ...... 204 [HL1213] ...... 217

[HL1087] ...... 199 [HL1220] ...... 197

[HL1099] ...... 204 [HL1222] ...... 201

[HL1101] ...... 213 [HL1225] ...... 199

[HL1102] ...... 212 [HL1227] ...... 208

[HL1114] ...... 207 [HL1228] ...... 208

[HL1119] ...... 213 [HL1249] ...... 197

[HL1120] ...... 214 [HL1250] ...... 197

[HL1121] ...... 214 [HL1251] ...... 197

[HL1122] ...... 215 [HL1270] ...... 218

[HL1124] ...... 200 [HL1271] ...... 218

[HL1144] ...... 219 [HL1275] ...... 217

[HL1147] ...... 222 [HL1286] ...... 216

[HL1148] ...... 222 [HL1288] ...... 216

[HL1149] ...... 222 [HL1293] ...... 221

[HL1156] ...... 206 [HL1310] ...... 205

[HL1157] ...... 206 [HL1314] ...... 222 Volume 738 Monday No. 30 9 July 2012

CONTENTS

Monday 9 July 2012 Death of a Member: Lord Marshall of Knightsbridge Announcement...... 901 Questions Environment: Leafleting ...... 901 Passports...... 903 Eurozone ...... 904 EU: Interpretation and Translation in Criminal Proceedings...... 907 Designation of Features (Appeals) (England) Regulations 2012 Public Bodies (Abolition of Environment Protection Advisory Committees) Order 2012 Public Bodies (Abolition of Regional and Local Fisheries Advisory Committees) Order 2012 Public Bodies (Abolition of the Commission for Rural Communities) Order 2012 Motions to Refer to Grand Committee ...... 910 Legislative Reform (Annual Review of Local Authorities) Order 2012 Motion to Refer to Grand Committee...... 910 Justice and Security Bill [HL] Committee (1st Day) ...... 910 Arts and Culture Question for Short Debate ...... 977 Justice and Security Bill [HL] Committee (1st Day) (Continued)...... 995 Grand Committee Civil Aviation Bill Committee (4th Day) ...... GC 459 Written Statements...... WS 73 Written Answers...... WA 197