Defence and Security Public Contracts (Amendment) (EU Exit) Regulations 2019
Earl Howe Excerpts(5 years, 3 months ago)
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The Minister of State, Ministry of Defence (Earl Howe) (Con)
My Lords, a responsible Government plan for all eventualities. It is essential that, as part of our preparations to leave the EU, we make sure that our legislation governing defence and security procurement functions properly beyond exit day in a no-deal scenario. It is the first duty of the Government to keep their citizens safe and the country secure. As part of that, the Government need to be able to procure the critical equipment and capabilities they need smoothly and with confidence. In the event of no deal, these amending regulations will provide procurers and suppliers with legal continuity and certainty, giving them the stability they need to conduct business after 29 March.
Clearly, the amendments to the legislation reflect the UK’s new status outside the EU in a no-deal scenario. However, the framework and principles underlying the defence and security procurement regime remain otherwise unchanged. This is in accordance with the powers given to amend retained EU law in the European Union (Withdrawal) Act 2018. That Act does not allow major policy changes or the introduction of new legal frameworks beyond those that fix deficiencies to ensure the law continues to function properly or remove any reciprocal obligations that are no longer appropriate from exit day.
Brexit will offer us real opportunities, including reform of our defence and security procurement regulations. In the near term however, these amending regulations ensure that the UK’s defence and security procurements continue to function smoothly in a no-deal scenario, but with that all-important autonomy from the European Union. To protect the UK’s essential security interests, the amending regulations will maintain the effect of Article 346 of the Treaty on the Functioning of the European Union by writing its substance into the existing regulations. The regulations already make it clear that they can be trumped by Article 346. Article 346 enables us to disapply the defence and security procurement rules when necessary to protect essential national security interests.
Through the amendments, control over our procurement is returned to the United Kingdom. For example, the Secretary of State for Defence will take the power previously held by the European Commission to modernise, although not broaden, the 1958 list of warlike stores that falls under Article 346 (1)(b). All notices for defence and security procurement opportunities will in future be published on a new UK e-notification system. Business continuity, meanwhile, is assured through the transitional provisions; there will be no defence procurement cliff edge.
Competition remains the cornerstone of defence procurement policy to ensure we equip our Armed Forces with the right capabilities at the right price. Currently, we allow bids from suppliers outside the EU, although the existing regulations provide only the legal right of market access required by EU law for suppliers based in the EU. Any restrictions on bidding, for example, on national security grounds, are made clear from the outset of any procurement.
The amending regulations provide a legal right of market access for suppliers based in the UK and Gibraltar which currently enjoy rights under the EU defence and security directive. After exit day, we will still allow bids from suppliers in the EU on the same basis as we do now for suppliers currently outside the EU. This reflects the UK’s new status as a third country outside the EU.
Although the amending regulations are mainly about EU exit in a no-deal scenario, they also make some updates and corrections to the Defence and Security Public Contracts Regulations 2011. They will come into force before exit day regardless of whether there is no deal.
To sum up briefly, it is through these amending regulations that the Government will ensure that UK defence and security procurement continues to function properly and appropriately, with solid legal foundations underpinning it. It is this instrument that will give procurers and suppliers the confidence and continuity in procurement they need in a no-deal scenario. I commend these regulations to the Committee. I beg to move.
Lord Tunnicliffe (Lab)
My Lords, I thank the noble Lord for introducing this statutory instrument. On the other hand, that is not really true: the facts of life are that I would rather not spend my weekend studying SIs for a scenario that is deeply absurd and the Government should have ruled out many months ago. It is, however, forced upon us.
Initially, I tried to read the Explanatory Memorandum while applying the test that I have been using so far—that there is no new policy except what is necessary to smooth the transition. That is essentially the test of the withdrawal Act. He has already said, however, that this SI goes beyond what is allowed in the withdrawal Act. I noticed that the SI also prays in aid the infamous—as I would call it—European Communities Act 1972, which must have the grandest powers of any piece of primary legislation. Since, therefore, this is quite important—that the Government are seeking to mix the two—I would be grateful if he could give a little more detail on where the 1972 Act has been used and where he is praying in aid the 2018 withdrawal Act.
I found the Explanatory Memorandum difficult to understand because it requires considerable previous knowledge. I can find only one area of concern. In general, the references to the requirement for a new organisation—for new parts of government to take over what is happening in the EU—all seem to make sense.
Essentially, I think the Minister has said that this SI leaves the situation unchanged. Does that mean that the requirement to put defence procurement up for both domestic and international tender is unchanged, except where derogated under provisions similar to Article 346, which I assume is written into the regulations? Does the derogation for national security reasons remain unchanged? Has it been decided that it should not be enhanced, as many of us would argue it should, to include wider, more long-term considerations, such as the preservation of UK sovereign capability by favouring UK firms in some circumstances? This measure seems to create a situation where the rest of the world can bid for UK contracts except where derogated. Does that mean that UK firms will be able to bid for foreign contracts, particularly opportunities in the EEA?
Finally, can the Minister indicate what will happen to these regulations in the event of a deal? Do they die in total or in parts? How will the deaths be managed?
Earl Howe
My Lords, once again I thank the noble Lords who have contributed to this debate for their questions, which I will do my best to answer. The noble Baroness, Lady Smith, and the noble Lord, Lord Tunnicliffe, both asked a similar question about the coming into force of these regulations and the circumstances in which they might not come into force. These amending regulations apply only in a no-deal scenario, other than the changes being made under Section 2(2) of the European Communities Act.
The noble Baroness, Lady Smith, was slightly unclear as to how we could avail ourselves of powers under that Act if we are not a member of the community. The answer is that we are still a member of the European Union and we can avail ourselves of the powers under the 1972 Act until such time as we cease to be members. The very minor adjustments we are making will come into force regardless of whether there is a deal or no deal. If the withdrawal agreement enters into force, the UK, with certain specific caveats, will be treated as an EU member state for the duration of the implementation period. Therefore, the current DSPCRs will continue to apply for that period, albeit with the updates and corrections made in Regulation 2.
The noble Baroness and the noble Lord asked about those changes. They are very minor. They are, in the main, changes required to resolve outdated references and to correct an omission arising from an amendment to the European Economic Area agreement. There is an amendment to the definition of “member state” to add Norway and Iceland, ensuring that economic operators from those two EEA states are covered. Again, that amendment is required regardless of whether the exit-related changes come into force. There are various other minor changes that I can read out, but I think it would be tedious if I were to do so.
The noble Baroness and the noble Lord, Lord Adonis, asked about the effect of the coming into force of these regulations on UK companies and what the benefits to UK industry are likely to be. The main benefit for both UK and Gibraltarian suppliers will be stability and continuity of working regulations, which are well established, understood and practiced. Importantly, UK and Gibraltarian suppliers will continue to enjoy legal rights to participate in UK defence and security procurements. Other non-UK economic operators, save for those in Gibraltar, will not have these rights under the amending regulations. I make it clear that that is not to say that only UK or Gibraltarian suppliers can bid for defence and security procurements. As noble Lords will know, the UK has a long-standing practice of allowing overseas suppliers to participate in defence and security procurements where there is no need for restrictions on who can bid in some way—for example, on national security grounds.
The noble Lord, Lord Tunnicliffe, asked whether UK companies would be disadvantaged regarding their access to the EU market. As a matter of EU law, EU member states will no longer be legally obliged to open their defence and security procurements to UK suppliers, as the EU defence and security directive will no longer apply to the UK after exit day. However, it has to be said that our UK suppliers are recognised as world class. They offer extraordinary experience and expertise in defence. Individual EU member states therefore may choose to give UK suppliers access to their competitions to maximise the effectiveness of their procurements in the same way as the UK does. There is a strong case in terms not only of value for money but of other considerations, such as interoperability and cutting-edge capability.
Lord Tunnicliffe
I feel that I have lost my place. Is the Minister saying that non-derogated invitations to tender will be restricted to the UK suppliers and Gibraltar, or will they be available to worldwide competition, with certain exceptions?
Earl Howe
It will depend on the procurement. If it is determined that the procurement rate relates to an issue necessitating the protection of UK sovereign capability, as in the case of the construction of warships, we would restrict the tendering process to UK-based suppliers. However, the generality of defence procurement is opened up to the widest market possible, although, as was pointed out, we make clear in certain procurements that we will not entertain bids from certain countries. Each procurement has its operational basis made clear at the outset.
The noble Baroness, Lady Smith, asked whether we will give state aid to suppliers. We have no intention of providing state aid to UK suppliers, which is incompatible with our state aid regime. I am sure she will not be surprised to hear that. Having said that, it is important to understand that there are ways we can alert our home-based industry to forthcoming procurements to enable them to prepare their bids in good time and understand our needs. That process is already under way; we are clear that the entire procurement process needs to be smoother than it perhaps has been. That is not the same as state aid, however.
The noble Baroness also asked whether the Government have modelled the impact of the change on UK defence exports. As I said, defence suppliers will lose their legal rights to participate in procurement in the EU 27, but the quality of our companies should ensure that many EU member states will still wish to entertain bids from our defence industry. As the noble Baroness knows, the UK defence industry participates in co-operative defence projects, such as Eurofighter; that will not change either.
Lord Tunnicliffe
I am sorry to ask the same question over and again, but it is important: putting the derogated areas covered presently by Article 346 to one side, do the regulations—noble Lords must realise that I cannot read them; it took all my time to read the Explanatory Memorandum and try to understand it—require the UK to put non-derogated opportunities to international tender, or is that a matter for the United Kingdom Government’s discretion on a project-by-project basis?
Earl Howe
It is important to understand that competition remains at the heart of our approach to defence procurement. Currently, we routinely allow bids from suppliers outside the EU, although the current legislation provides a legal right of access only for suppliers based in EU member states. Where we restrict who can bid in some way—for example, on national security grounds, as I have mentioned—we would make that clear at the outset in the advert or in any pre-procurement documentation.
That position will not change after exit day. Suppliers in the EU and elsewhere will still be free to bid for procurements where no limitations are specified. What is changing is that bidders from the remaining EU member states will not have a legal right to bid for defence contracts; this is the same position as for suppliers currently based outside the EU. I hope that answers the noble Lord’s question.
Lord Adonis
If the noble Earl will forgive me, I think I follow what he is saying, but I invite him to say whether I have understood him correctly. Because we will no longer be part of the EU procurement regime, we will have no statutory obligation to make these contracts available to bidders from the EU, but we intend to continue to invite applications from those countries. Is he saying that, in practice, for suppliers from the EU—leaving aside those from outside the EU about which we have security concerns—there will be no change in the bidding regime as a result of a no-deal Brexit? If that is not correct, and there will be a change, could he tell the Grand Committee what that change would be?
Earl Howe
For UK Government defence procurements, the process from the point of view of an EU supplier will be no different. What it will experience is the need to bear in mind two separate portals or bidding channels; one is the UK e-notification system, which I mentioned earlier, and the other is OJEU. It will need to keep an eye on both if it wishes to participate in the Europe-wide market; in using that phrase, I include the UK as still being a European country, even if not a member of the EU.
Lord Tunnicliffe
The noble Earl says there will be no changes. I understand that at the moment, in non-derogated areas, EU suppliers have a right to bid and we have an obligation to take their bids seriously. I think that under the new situation they do not have this right and that whether they are allowed to bid will be a matter of policy. That policy could change year by year or Government by Government.
Earl Howe
That is technically right. It is our policy to maintain access for EU member states—and indeed, non-EU states—in many, if not most, instances of procurement. A good example might be the fleet solid support ships. We invited tenders from all over the world to build those ships and that should provide the best value for money. We all hope that UK suppliers will feel confident in bidding for that contract, but we wish to benefit the taxpayer as well as the Royal Navy and the process will be an open one.
To answer one point which the noble Lord, Lord Adonis, alluded to, there will of course be opportunities to reform the defence procurement rules after we leave the EU. The current rules are generally seen as out of date, compared to the PCR 2015. We have the opportunity to take a fresh look at what is needed for defence procurement—
Earl Howe
They are the Public Contracts Regulations 2015. This will involve public consultation to ensure that we strike the best balance between value for money and protecting national security. However, I emphasise that that is a long-term project and does not relate to the regulations before us today.
The noble Baroness, Lady Smith, asked about exit day in the event of a deal. As with the non-defence procurement that we debated earlier, any amendment to exit day as a result of a deal will track through from the EU withdrawal Act to these regulations. Therefore, the no-deal element of the amendments will not come into force.
I hope I have explained clearly the effect of Article 346 and why we have replicated it in the regulations but, just to make doubly clear, it is to ensure we can continue to disapply the procurement rules when required to protect our national security interests. For example, if we did not do so we would be required to advertise our sensitive procurements as a matter of domestic law. In so far as I have not answered noble Lords’ questions I will certainly do so in writing, as for the previous debate, but I hope that my responses have clarified any points of uncertainty.
Public Procurement (Amendment etc.) (EU Exit) Regulations 2019
Earl Howe Excerpts(5 years, 3 months ago)
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The Minister of State, Ministry of Defence (Earl Howe) (Con)
My Lords, procurement by the Government and public sector bodies represents a significant sector of the UK economy. It is essential to the day-to-day running of government and is appropriately regulated. The Government are committed to ensuring the continued functioning of this important marketplace when we leave the EU. If a transitional deal is agreed with the EU then the existing procurement regulations will remain in place during the transition period. However, if no deal is reached with the EU then certain aspects of the existing regulatory scheme for public procurement will be deficient and will simply not work. The draft regulations before the Committee seek to address those deficiencies that would arise in a no-deal scenario.
The amendments made to the legislation reflect the UK’s new status outside the EU. It provides a balance between the need to maintain continuity based on established principles and the existing framework with the need to correct deficiencies to the extent permitted by the European Union (Withdrawal) Act. This will ensure the legislation is operable, effective and makes sense. This instrument primarily makes amendments to three sets of regulations—the Public Contracts Regulations, Utilities Contracts Regulations and Concession Contracts Regulations—that regulate public procurement in England, Wales and Northern Ireland. These sets of regulations implement EU directives on awarding contracts and concessions in the public and utilities sectors, outside the fields of defence and security.
This instrument amends or revokes various EU regulations and decisions relating to public procurement that will become retained direct EU legislation on exit day. It also makes small amendments to various pieces of domestic legislation, including some primary legislation, that are not primarily about public procurement but which contain public procurement references that will become deficient on exit day. These changes address the UK’s new position outside the EU while continuing to facilitate a functioning UK internal market.
As we leave the EU, the UK is working to join the WTO government procurement agreement in its own right. We are currently a GPA member through being an EU member state. I am pleased to say that the other GPA parties have agreed in principle to our market access offer and accession. We have taken precautions against the UK’s accession not being fully completed by exit day. One of the amendments to the public procurement regulations ensures continued guaranteed access, rights and remedies on current terms for suppliers from existing GPA countries for a time-limited period from exit day. Without this amendment, suppliers from GPA parties would no longer have the guaranteed access, rights and remedies that they currently enjoy in our public procurement contracts. This will mitigate the risks of a short gap in GPA membership by facilitating continued market access.
Through the amended regulations, control over public procurement is returned to the United Kingdom. All notices for public procurement opportunities will in future be published on a new UK e-notification system. Business continuity is meanwhile assured through the transitional provisions that will generally apply the amended regulations, even in relation to procurements that are already under way on exit day.
In a no-deal scenario, this instrument reflects the UK’s status as a non-member state, at the same time as ensuring a functioning internal market exists that complies with the requirements of the GPA. It provides the continuity and legal certainty required by public procurers and suppliers. I commend the regulations to the Committee and beg to move.
Baroness Hayter of Kentish Town (Lab)
I thank the Minister for introducing the regulations, and those who drafted them for their hard work. Shall we get the good points out of the way first? I thought there were three. The first is that any regulation-making powers under the 1958 list will be by affirmative procedure—a tick for that one. The second was the ban on convictions being carried over as grounds for exclusion—tick. Thirdly, it looks as though Gibraltar has been included, which I assume is with the agreement of the Government of Gibraltar—tick. However, I have a number of questions.
One of my major questions is about the bold statement that no impact assessment has been made, despite the regulations introducing a requirement for businesses to use a new e-notification system that might include considerable changes to their own data systems, requiring software changes and internal training. These things never just happen, and preparing for them could well be expensive for the companies involved. That is a concern, given that the Explanatory Memorandum also states that there has been “no consultation”. It is hard to see how on earth it could have been decided that there would be virtually no cost to the companies affected, particularly small and medium-sized companies. It is exactly those companies, which do not have their own sophisticated IT departments, that could therefore face quite a challenge. It would be helpful to have some explanation of why no consultation and testing took place with them, and how it was therefore possible to take the view that the change would have no impact.
My second question relates to the exit date. I think that I am right that no definition is given in the regulations, presumably because they are made under the withdrawal Act of 2018, which itself defines exit day. I know that the Minister will not comment on this, but a number of us think it extremely unlikely that we will leave on 29 March and that there will very likely be a request for an extension to Article 50, and therefore a change of exit date. Should exit day be amended by statutory instrument under, I think, Section 20(4) of the Act, does that automatically amend the date on which these regulations would come into force? Would the eight months after which Regulations 6, 8 and 10 would come into force automatically follow the new exit date?
My third question is about e-notification, which I touched on earlier. I am worried about it because this is a no-deal preparatory statutory instrument, which sort of assumes that there will be no deal in seven weeks’ time. It would be helpful if the Minister could indicate when he considers that the e-notification system will be up, ready to run and fully tested; hopefully, it will be pre-tested with potential users. Some response on that would be helpful—as would some thoughts on what happens if it is not ready on exit date, particularly as another part of the regulations says that notices cannot be published on any other national portal until they have appeared on the e-notification system. Since we know that these things do not always appear quite on time, what happens if the system is not ready by 29 March? Can the Minister also tell us what sort of training and support will be given to those who need to access it? Perhaps he might know, or be given guidance on, how different this system is from the one currently used with EU procedure.
My fourth question turns to the GPA. The Minister said that the other parties have agreed in principle to us becoming a member of the WTO Agreement on Government Procurement. However, I am interested to know why, both in the regulations and in what he says, there is an indication that that might not have happened by exit date. Paragraph 7.20 of the EM suggests that it may not have happened. Can he explain why there might be a delay, given that we have applied, I assume, and he has heard that the other parties are happy? Basically, what is the problem?
My fifth question is about the CMA. The purpose of these regulations is to ensure that the “award of public contracts” is done in a market which is,
“open and competitive and that suppliers are treated equally and fairly”.
As I understand the regulations, the CMA will oversee and enforce this but that is something of a problem in that we do not yet know the nature of the state-aid regime post Brexit. We do not know the anticipated regime, nor exactly how it will oversee and enforce it. Obviously, state aid is very relevant to procurement, but the market is populated by international actors. They, and our people doing the procurement, will need to be clear about what the regime is. The relevant SI for the CMA bit of this was laid only on 21 January, and there is no indication of when the CMA will publish its policy statements. It says it will be before the end of March; should we come out on 29 March without a deal—which is what this instrument is about—there will be almost no time for anyone to know what the policy on which it will work to oversee the market is.
The Minister will be very pleased to know that I have only seven questions. My sixth question is about the financial threshold. The role of converting the GPA threshold into sterling will fall to the Cabinet Office Minister under these regulations. I was not clear about how this decision will be communicated. At the moment this is done through the normal EU channels but once that no longer happens, what is the transparency? This should be quite a simple decision and how it will happen is laid down, but it would be good to know how it will be communicated.
My last question is about something that I am sure everyone in the Room except me knows, so I ask it very much for my own benefit. It is about social obligations. A contracting authority can refuse to award a contract to the lowest bidder if the bidder,
“does not comply with certain … obligations in the field of social, environmental and labour law”.
I understand what environmental and labour law cover, but I am personally unsure whether “social law” would include consumer law, or whether it is more about social benefits and so on. For my benefit, could the Minister clarify whether consumer law would be covered? I am sorry that I have lots of questions, but that is partly why I asked my colleagues if they minded me going early. I think that gives other people in the Room a chance to find the answers before the Minister has to reply.
Earl Howe
My Lords, I thank all noble Lords who have spoken for their questions. If noble Lords will bear with me I will do my best to answer them, although not necessarily in the order in which they were asked.
The first question of the noble Baroness, Lady Hayter, was about the lack of an impact assessment. As I said in my opening remarks, this statutory instrument was designed to ensure continuation of the current system where possible. The impact of the amendments, including the replacement of the OJEU with the UK e-notification service, was deemed, after a de minimis impact analysis, to be below an annual cost of £5 million, which is the critical figure in this context. Consequently, in line with published guidance, a full impact assessment was not required or produced. We do not anticipate that the costs of complying with the amended regulations will be very great: in fact for all practical purposes they will be unchanged, because this amendment only fixes deficiencies and removes reciprocal rights—it does not change processes and procedures that would affect the cost of running or participating in a procurement under the regulations. That is why there was no consultation.
Lord Wallace of Saltaire
If I understand the Minister correctly, paragraph 12.3 should therefore read: “Provided that there is a withdrawal agreement, the impact will be limited, but in the event of no agreement there will be a considerable and adverse impact”.
Earl Howe
No, my Lords. These regulations are designed to ensure that the experience of businesses using the public procurement system is virtually unchanged from today. Our aim has been to produce as smooth a transition as possible—even in the event of no deal. Of course, as the noble Lord, Lord Adonis, has pointed out, there will be changes in the wider context of bidding in the European market; I will come to that in a minute.
The noble Baroness, Lady Hayter, asked what would happen if exit day was deferred. If that were to happen, and the withdrawal Act amended, that would feed directly through into these regulations, so no specific amendment would be required for that. She also asked me about the GPA thresholds and how they will be published. To update the thresholds, the Minister for the Cabinet Office will need to exercise the new regulation-making powers conferred by this instrument. The new thresholds will, therefore, be reflected in the public procurement regulations themselves and be publicly available and notified by procurement policy notice.
The noble Baroness, and the noble Lord, Lord Wallace, asked about the GPA. As I said in my opening remarks, the UK currently participates in the GPA via its EU membership. We need to accede to the GPA in our own right to maintain legally guaranteed access to public contract opportunities that the GPA provides. The offer that we have made to GPA parties maintains our existing commitments in the UK part of the EU schedule. The European Union (Withdrawal) Act 2018 aims to ensure as much continuity as possible. It is, therefore, the UK’s intention to join the GPA in its own right and, ultimately, to transpose the other international agreements between the EU and third countries. Accordingly, all suppliers should continue to be treated equally and fairly through open competition. Keeping our procurement market open to international competition clearly ensures better value for money for the taxpayer and facilitates UK suppliers being offered reciprocal rights to participate in procurements abroad.
Noble Lords asked me what would happen if our GPA accession did not take place by exit day. We have made good progress in our accession process and, as I said, we have received agreement in principle to our GPA market access offer. Despite this progress, we have taken the necessary precautions in the event that the UK’s application to accede has not been fully completed by exit day. In this scenario, economic operators established in territories and states that are GPA parties would no longer have the guaranteed access and associated remedies that they currently have in relation to UK public procurements. One of the amendments in the public procurement regulations guarantees continued access, rights and remedies for suppliers from GPA countries for a time-limited period from EU exit. This approach has been taken to mitigate the risk of a short gap in GPA membership. This will facilitate UK suppliers being offered reciprocal rights to participate in procurements abroad.
The noble Lords, Lord Wallace and Lord Adonis, asked about the attitude of other countries—New Zealand and China in particular—to what we were doing in relation to the GPA and standards. New Zealand has, in fact, accepted our final market access offer. It continues to be interested in other aspects of the UK’s WTO membership. China’s application has been in train for many years and I am advised that it is unlikely to be completed in the near future. There will be no change to the standards that we currently operate. A draft decision inviting the UK to join has been sent to all GPA parties. It is expected that the formal invitation will be issued at a committee meeting this month. Parties were interested in how the decision described the UK’s relations with the EU during the transition period.
The noble Lord, Lord Wallace, also asked about oversight carried out by the Competition and Markets Authority. This instrument does not provide for oversight by the CMA of the public procurement regime. Aggrieved suppliers will, however, continue to be afforded the remedies provided for in the regulations. In that way, contracting authorities and other entities will be held to account by the courts.
The noble Lord, Lord Adonis, asked various questions about the Official Journal of the European Union and the publication of contract opportunities. In a no-deal scenario, the UK is unlikely to be afforded access to the Official Journal for the purposes of advertising public contracts. That is simply a facet of no longer being a member of the EU, and that is why we have developed our own system to which UK bidders, EU bidders and bidders from the rest of the world will have access and in which they will be able to see UK public procurement opportunities. UK authorities may continue to advertise some types of procurement opportunity in the Official Journal—where the UK is participating in EU research and development projects, for example—though we anticipate that being a relatively rare event.
Lord Adonis
Is the noble Earl saying that to advertise in the Official Journal of the European Union you are required to be an EU member? Could he say—or follow up in writing afterwards—whether Norway and Switzerland, countries with very close economic associations, including membership of some of the economic institutions of the EU, do or do not advertise public procurement opportunities in the Official Journal? If it is possible to advertise in the Official Journal without being an EU member, it would be good to know whether the United Kingdom could continue to do so, since it would be a big advantage to be able to advertise our public procurement opportunities in that way.
Earl Howe
I take the noble Lord’s point entirely. I need to seek advice on the question that he asked me about Switzerland and Norway, as I do not have that information to hand, but clearly, to the extent that we are allowed to avail ourselves of the OJEU in any public procurement context, it will be an advantage. However, I am advised that the new UK e-notification system which is being developed will be accessible by the same portal that suppliers use at the moment. To that extent, the process which they go through will feel quite normal. I can advise the noble Baroness, Lady Hayter, that the new system is on track to be in place by 29 March 2019.
Lord Wallace of Saltaire
My Lords, am I correct in thinking that provided we have an agreement as we leave and therefore also a transition period, during that transition period many of the same arrangements will continue? If so, it is possible that the answer to the question asked by the noble Lord, Lord Adonis, is that during the transition period we will continue to have access. The question of what happens after 2020, 2021 or whenever it is has to be negotiated; the future relationship negotiations have not yet begun.
Earl Howe
The noble Lord is absolutely correct. Clearly if the agreement proposed by the European Commission is agreed, or something like it is agreed, the implementation period will kick in, and therefore we will be as if a full member of the European Union for purposes of public procurement. There will then be the question of what long-term arrangements are negotiated by and through the Commission.
Earl Howe
I have just alighted on my note to that effect. The noble Lord, Lord Adonis, essentially asked whether the implication of the Explanatory Memorandum is that the UK could start flouting the EU state aid regime. On leaving the EU, the UK will no longer be bound by the Treaty on the Functioning of the European Union, so economic operators will not be subject to the EU’s state aid regime any more than a third-country supplier receiving state subsidies would be. The UK has developed its own state aid regime, but it is important to remember that this instrument does not disapply the state aid rules. Rather, contracting authorities will simply no longer be required to look behind an abnormally low tender to investigate whether a bidder was in receipt of unlawful state subsidies. That is because the UK will no longer be a participant in or bound by the EU’s single market and competition rules.
Baroness Hayter of Kentish Town
I asked a question about whether the description of social law includes consumer law. I am happy for the Minister to write to me if he needs to check that.
There was one question I omitted to ask. It is not particularly relevant or specific to these regulations, but the Minister may know the answer anyway. It is: assuming this goes through, is approved by the House, therefore becomes law and then we get a deal, what happens? Do all these statutory instruments get repealed? What would be the status of all these no-deal statutory instruments should we get a deal?
Lord Wallace of Saltaire
In that case, the impact assessment for no deal should have been part of the statutory instrument. I read it as being partly about no deal and partly about the withdrawal agreement, because if we leave with a deal before we have completed joining the GPA the consequences could be quite substantially adverse.
Earl Howe
The two situations would indeed be very different. The Government hope that Parliament will agree a deal, which will make for a much smoother transition in the implementation period for businesses, private citizens and everybody else than if there is no deal. However, as has been said many times in the Chamber, it behoves a prudent Government to prepare for these contingencies. Unlike the statutory instrument we will debate next, this one is purely designed to address the contingency of no deal.
Counter-Terrorism and Border Security Bill
Earl Howe ExcerptsTuesday 15th January 2019
(5 years, 3 months ago)
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The Minister of State, Ministry of Defence (Earl Howe) (Con)
My Lords, I will also speak to the other government amendments in this group.
Government Amendments 1 to 4 return to the issue of the proper scope of the new designated area offence provided for in Clause 4. I thank the Opposition for their constructive approach to this provision. It was clear from our earlier debates that there was general support for the principle of a designated area offence to help protect the public from a real terrorist threat, such as we have seen as a result of UK nationals and residents travelling to conflict zones in Syria and Iraq. The area of dispute was how we protect those who have a legitimate reason for travelling to a designated area.
On Report, the Government sought to provide greater reassurance by building on the existing reasonable excuse defence and setting out an indicative list of such excuses. However, your Lordships preferred an alternative approach, put forward by the noble Lord, Lord Rosser, which excludes from the scope of the offence travel to a designated area for one or more specified purposes. The list of such specified purposes matched the Government’s list of indicative reasonable excuses, but with a power to amend the list of specified purposes by regulations.
It is clear that, while the Opposition and the Government took different approaches to the challenge, we were ultimately striving to achieve the same result. I am pleased to say that, on reflection, the Government are content to accept the approach put forward in the Opposition’s amendment. Having consulted our operational partners, we consider that this change would not materially affect the operation of the offence. Indeed, noble Lords will recall that, on Report, I indicated that, from the perspective of an individual returning to the UK from a designated area, the two approaches would, in one sense, not look very different. Either way, the police would still need to investigate to determine whether, under one approach, an exclusion from the offence applied or, under the other, whether the subject of the investigation had a reasonable excuse.
I also reminded your Lordships that the police have made very clear that they will investigate any person returning from Syria to establish what risk they may pose to the public, given the high level of terrorist threat associated with that region. It seems reasonable to expect that this is likely to be the position in relation to any area that might be designated in the future under this power, as part of the police’s basic responsibility for protecting the public. This is aside from the question of whether a person returning from such an area may have had a legitimate reason for travelling under Clause 4. I accept, however, that an individual with a legitimate reason for travelling to a designated area would take greater comfort from knowing that they had not committed the offence in the first place than from knowing that they had a defence to the offence.
The Government must ensure that the law is as clear as it can be. These four amendments will help to achieve this. Amendment 1 is intended to make explicit in the Bill that there are exemptions from the offence—namely that an individual would not commit an offence if they leave a designated area within one month of the area being designated; that an individual enters or remains in a designated area involuntarily; or that an individual enters or remains in such an area in connection with one or more specified purposes.
Amendments 2 and 4 simply ensure that, consistent with the drafting of the Terrorism Act 2000, the parliamentary procedure for the new regulation-making power is set out in Section 123 of that Act rather than in new Section 58B. This in no way changes the operation of the regulation-making power or the parliamentary process for approving regulations made under it.
Finally, Amendment 3 provides for a definition of “terminally ill” where a person enters a designated area to visit a terminally ill relative. This point was raised by the noble Baroness, Lady Hamwee, on Report. This amendment will provide greater clarity for individuals who may pray in aid this reason for travelling to a designated area.
Lord Foulkes of Cumnock (Lab Co-op)
Before the Minister sits down, I want to raise a particular point about the amendment: why six months? Why was six months chosen rather than three months, a year or any other period? I wondered whether there was a clear medical or legal reason for that or whether it was just taken out of the hat. What is behind the choice of six months in particular?
Earl Howe
My Lords, I am advised that it is in line with provisions in other Acts. If the noble Lord will allow, I will write to him on which they are, as I do not have that information. Essentially, it was a matter of drawing a line at some point. One cannot legislate for every type of terminal illness; it seemed a reasonable line to draw.
In summary, these changes are merely intended to refine and polish the amendment agreed by the House on Report. I hope noble Lords will agree that they reflect the collaborative approach that has characterised the passage of the Bill. I beg to move.
Baroness Finlay of Llandaff (CB)
My Lords, I beg the indulgence and forgiveness of the House because I have not been involved in previous stages of the Bill, but the amendment concerns terminal illness, and I should declare that that is my specialty. It may be helpful to the Minister if I explain that the DS1500 benefits are where the six-month definition has come from—we are going back many years. If someone is deemed likely to die within six months in this country, they become eligible for DS1500 benefits, which is a special fast-track benefit.
However, the problem with the six months is that it is impossible to predict. All the evidence is that you cannot accurately predict whether someone’s prognosis is longer or shorter; it is really a best guess. Therefore, I completely accept the humanitarian rationale behind the amendment, but it is important that the Minister clarifies that this provision is six months with treatment available wherever that person is. I raise that because, to take the example of an insulin-dependent diabetic, if they stop their insulin and already have complications, they will die within six months, but if they carry on with their insulin, they may well live for many years.
It is important to clarify on the record that they are expected to be terminally ill given that they have accessed the treatment available wherever they are. I fully accept that in some parts of the world there is very little treatment available for a lot of diseases, but there is a very wide range of conditions which are fatal in a short time if they are not treated, and I should hate the Government to be caught out by any manipulation.
Earl Howe
I am grateful to the noble Baroness. The example she cites illustrates very well that whether the exemption applies will depend very much on the facts of the individual case and would ultimately be for a jury to determine, if a case got that far. In her example, it would need to be established whether drugs were available for the person or not and the likelihood of their being available. She will notice that the wording is very carefully drawn to say that if, at the time, the person suffers from a progressive disease and their death in consequence of that disease can reasonably be expected within six months—it is that reasonable belief that we need to focus on. It is possible, of course, that the exemption could come under one of the other headings in the amendment: for example, for aid of a humanitarian nature.
The Archbishop of York
My Lords, will the Minister contemplate another example? Megrahi was sent from a Scottish jail back to Libya and expected to die within a short period, but he lived for longer than six months. What if someone was here and the same thing applied? President Pinochet was allowed to go back. Everybody expected him to die but he walked off the plane and lived for quite some time. So the six-month period could become a problem. One needs to find a way of describing it in another way. People have died within six months but some have lived longer. Can the noble Earl help us with that quandary?
Baroness Hamwee (LD)
My Lords, I am grateful to the Minister and the Government for pursuing the point. I looked at this for some time and came to the view that the words “reasonably be expected” were the best that one could provide to cover circumstances that cannot be listed in detail. Indeed, I confess that having complained throughout the Bill’s progress that I did not want to rely on the CPS tests, the police’s common sense and all the rest of it, I will do so on this one. I thank him.
However, I want to raise another point and I hope the Minister is aware of it—I emailed the Bill team about it yesterday. I am happy with the drafting amendments, which are to do with regulations, but given the supplementary delegated powers memo, I thought that I should pursue the issue of peacebuilding as a reasonable excuse. The paragraph of the memorandum dealing with “reasonable excuse defence” gives,
“purposes of a peacebuilding nature”,
as a possible example of a purpose that can be referred to as a reasonable excuse. I referred to peacebuilding at the previous stage, on 3 December, and the noble Earl said:
“I entirely accept the importance of peacebuilding activity … the government amendment does not preclude a person advancing this or any other category of reasonable excuse. I am of the view that legitimate peacebuilding activity could very well be a reasonable excuse”—[Official Report, 3/12/18; col. 860]—
but that it was up to a jury.
The debate continued and, as the House is aware, the amendment in the name of the noble Lord, Lord Rosser, which we supported, was agreed on a Division. Therefore, the point rather floated away. Essentially, I hope the noble Earl can commit the Government today to considering adding peacebuilding when the Bill goes back to the Commons. It seems, from correspondence I have received since I emailed the Bill team, that peacebuilding may or may not be what is understood to be a humanitarian activity. There is a particular concern that—given that this is not something that we talk about and define every day—juries may be puzzled as to what it is and not understand its value. I am not sure whether that is a fair comment. However, it has been described to me as being “complementary to humanitarian aid” and covers a large range of activities, including mediation, support to the local community, justice and reconciliation, psychosocial support and research in the area. The Government have been considering this matter. It would complete the provisions in this area if it could be referred to specifically when the Bill is enacted.
Lord Judd (Lab)
My Lords, I support very strongly indeed what has just been said. Having spent much of my life working with humanitarian agencies, I know that the importance of what has been said cannot be overemphasised. We must not slip into an attitude in which relief, when things have gone badly wrong, may be interminable and highly costly, apart from anything else. There is a real need in hot situations to be working at prevention.
In broad government statements we get very reassuring remarks about the importance of conflict resolution and peacebuilding. The humanitarian agencies frequently find themselves involved in this and I think with all possible clarity that that is valid. They should not just be tolerated, they should be supported by the Government and others. That is significant because anything that either intentionally or unintentionally detracts from the commitment in that area would be very unfortunate.
Lord Kennedy of Southwark (Lab Co-op)
My Lords, I rise briefly to say that I support the amendments before us. I am pleased that the Government have listened to the proposal put by my noble friend Lord Rosser, who is unable to be with us today. I think that the noble Baroness, Lady Finlay, has raised an important issue as regards the medical terminology used, but the noble Earl has answered the point in terms of what can be expected. Generally, I support the amendments because they certainly clarify what we put forward in the first place and I thank the Government for listening in this case.
Earl Howe
My Lords, I am doubly grateful to all noble Lords who have spoken. I am sympathetic to the point made by the noble Baroness, Lady Hamwee, but only up to a certain point. Given that this is Third Reading, our starting point has to be that any further amendments to the Bill should be limited to those that are absolutely necessary to improve the drafting of the Bill in the light of the amendment agreed by the House at Report. I am not persuaded that adding to the list of exemptions from the offence properly falls within the category of amendments that we should now be contemplating at this late stage of the Bill, either today or when the Bill returns to the Commons to consider the Lords amendments.
However, I can assure the noble Baroness that the Government will keep the list of exempted purposes under review. The Bill now helpfully includes a power by regulations—a Henry VIII power to all intents and purposes—to add to the list of exempted purposes should it be appropriate to do so in the light of experience of operating the new offence. I am sure that officials in the Home Office will closely scrutinise the use of this power and will work with their colleagues in the Department for International Development and the Foreign and Commonwealth Office to determine if peacebuilding could usefully be added to the list of exempted reasons in the future.
But I need to make clear to all noble Lords that this is a nicety. In the absence of such an exemption the Government are clear that entering and remaining in a designated area for the purpose of engaging in peacebuilding would constitute a reasonable excuse. We have that all-encompassing provision, as the noble Baroness is aware, in the Bill. There is a problem associated with any approach that has within it a list of some kind, which is why we started out with a very short list indeed. Through our debates we persuaded ourselves that it would be helpful to augment the very short list that the Government started off with, but we have to ask ourselves where we stop.
I hope what I have said has offered some assurance to the noble Baroness and she understands that, while it would not be appropriate to add peacebuilding to the list of exemptions at the moment, that will not preclude us doing so in the future, should there be an operational imperative.
Baroness Hamwee
My Lords, to be rather blunt it is always frustrating when procedure gets in the way of substance. I ask the Minister to ensure that Home Office officials appreciate that “in the light of experience” should not just be what may happen when someone comes back and says, “I have been working on peacebuilding in Syria”. It is also about deterring NGOs from going into conflict or post-conflict areas to work on peacebuilding. That could be a consequence we do not want to see from the offence we have created in the Bill.
Earl Howe
I entirely agree with the noble Baroness, but I hope too that she will recognise that the wording of the first purpose set out in this amendment,
“providing aid of a humanitarian nature”,
is quite broad. So humanitarian agencies of any kind could feel secure in going out for almost any humanitarian purpose one can devise.
Lord Garnier (Con)
Before my noble friend sits down, I caution that sometimes lists can become exclusive and that some good things are easier to recognise than to define. He ought to stick to the way the Bill is currently drafted and allow himself the freedom to consider rather more carefully, despite the charming way in which the noble Baroness has advanced her case.
Lord Judd
My Lords, the Minister has been very helpful in the comments he has made and I most genuinely thank him for that. I just wonder whether it is possible for the Government and the Minister, when this legislation is given final consideration, to say some encouraging and positive things about the recognition of the courage and value of such work, so as to in no way whatsoever inhibit organisations that are able to make a positive contribution of this kind. Having been through this kind of situation, the trustees and leaders of the agencies concerned obviously give a great deal of deliberation to what they do and what is involved. To feel they are doing it in a climate of good will and not just acceptance is very important.
Earl Howe
I accept the point the noble Lord has made. That is why the whole tone and flavour of this part of the amendment carries the implication he would wish, in particular the provision that talks about,
“carrying out work for the government of a country other than the United Kingdom … carrying out work for the United Nations or an agency of the United Nations”,
and so forth. It is clear that the value of work of this kind—whether carried out by an individual, an agency or a Government—is fully recognised. I am sure that point will not be lost on those whose job it is to implement the Bill.
Folic Acid
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The Minister of State, Ministry of Defence (Earl Howe) (Con)
My Lords, we have had two supplementary questions from the Labour Benches and only one from the Conservative Benches, so would my noble friend like to continue?
Lord Balfe
My Lords, I draw attention to my interests as set out in the register. Every week that goes by there are more medical tragedies which could be avoided, so there has to be a sense of urgency. I hope this consultation is about how to implement the procedure, not about whether or not, as I think that question has been answered. I ask my noble friend the Minister to assure us that the consultation will be about operationalising the addition of folic acid, not about another way of looking at evidence which has already been thoroughly examined.
RAF: Operational Conversion Unit
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Lord West of Spithead
To ask Her Majesty’s Government how many F35B jets will make up the Operational Conversion Unit (OCU); and when the OCU will have its full complement of aircraft.
The Minister of State, Ministry of Defence (Earl Howe) (Con)
My Lords, the Lightning operational conversion unit is due to form as 207 Squadron and return to the UK in July 2019. Initially the squadron will comprise five aircraft. The squadron will expand to support continuing force growth into the next decade as more F35 Lightning become operational, including the formation of 809 Naval Air Squadron in 2023.
Lord West of Spithead (Lab)
I thank the noble Earl for his Answer. We have said in the past that there would be 12 aircraft in the OCU. I would like clarification: will these all be F35Bs? There is some muttering about getting F35As. Could I have an answer to my Written Question, which was: do we still consider that we need a strike group of 35 on board to fulfil the task for which the carrier was built, which is theatre entry to do a number of raids on IADS and other targets over a period of four days? That would seem to predicate a need for at least 70 aircraft afloat in a national emergency, plus, presumably, the OCU, and taking attrition rates into account.
Earl Howe
My Lords, the first tranche of 48 aircraft will be the F35B, which is capable, as the noble Lord knows, of operating from land and the “Queen Elizabeth” class aircraft carriers. Decisions on subsequent tranches of Lightning will be taken at the appropriate time. Of course, the number of aircraft deployed will depend on the circumstances and the nature of the deployment. The minimum number to be deployed will be one squadron; that is, 12 aircraft. The plan is for full operating capability in 2023, with two squadrons, but of course there is scope for each carrier to have as many as 36 aircraft deployed on it.
Lord Campbell of Pittenweem (LD)
My Lords, the noble Earl will be aware that the Defence Secretary, in an interview with the Sunday Telegraph, made the rather surprising admission that it was his ambition to open some new military bases in the Far East and the Caribbean. Can we be satisfied that any decision of that kind will not undermine the original commitment to purchase 138 F35 aircraft, particularly given the fragile state of the equipment budget?
Lord Soley (Lab)
Can the Minister elaborate on his second answer, when he referred to the appropriate time for future decisions? Can he give us some indication of what is meant by “appropriate time” and when that appropriate time might be?
Lord Howell of Guildford (Con)
While we are speaking of combined air and naval power, has my noble friend noticed the reports that British shipbuilding of warships may now be resuming a world role, after many years of most warships being built in Japan, Korea and other places? If that comes about, is it not to be greatly applauded?
Lord Hamilton of Epsom (Con)
Was it not inevitable, when the noble Lord, Lord West, ordered two aircraft carriers and there was no money to pay for them, that enormous pressure would be put on the procurement budget, not least in terms of ordering the F35s, which cost £100 million apiece?
Earl Howe
My Lords, while we recognise the considerable cost of the carriers, we should reflect also upon their utility and considerable benefit in enabling us to project power in a way we have never been able to before, bearing in mind the versatility and capability of the F35B, which takes us into a new realm of strike capability.
Lord Newby (LD)
My Lords, the Minister said that the Government were contemplating opening new bases in two particular parts of the world. Which two parts of the world does the Ministry of Defence have in mind, and how on earth could additional bases, which are very far from the UK, be funded, given that there is already a massive black hole in the MoD equipment budget?
Earl Howe
My Lords, there is not a black hole in the equipment budget, and that statement can be underlined when it comes to the F35B. It is too early for me to give the noble Lord a specific answer; we are looking at this matter in the round, and it is at a very early stage at the moment.
Lord Foulkes of Cumnock (Lab Co-op)
My Lords, perhaps the Minister will consider reopening the base in Belize as part of the reconsideration? I declare an interest as president of the All-Party Group for Belize.
Lord Tunnicliffe (Lab)
While we recognise that we have had to live without aircraft carriers, and then with aircraft carriers but without aircraft, when will the carriers be optimally equipped? The Minister seemed to imply in an earlier answer that that would be when 24 aircraft could be embarked and fully crewed. When will that be, how does that compare with the original plan, and what is the critical path: fully trained pilots or aircraft deliveries?
Earl Howe
With regard to whether the critical path is aircraft or indeed pilots, we clearly need both, and we are on track and within budget to deliver both in accordance with the planned rollout. For example, this will see initial operating capability for carrier strike—one squadron consisting of 12 frontline F35s and 18 pilots—in December 2020. Full operating capability, consisting of two squadrons, will be achieved in December 2023.
Lord Naseby (Con)
Is it not to the great credit of Her Majesty’s Government that this project has been taken forward regularly and provides suitable armaments for Her Majesty’s Navy? However, are there safeguards in the contract for the subsequent purchase of the second tranche of aircraft to ensure that we are not held out to dry by the United States?
Earl Howe
Obviously, before contracts are signed I cannot give an assurance about the safeguards that might be in those contracts. However, I can tell my noble friend some encouraging news, which is that the unit price for an F35B is currently $115.5 million, compared to $161 million for aircraft that were delivered in 2012. Therefore, while the final contract negotiations remain ongoing for the next tranche of aircraft that we wish to see delivered, we expect the downward cost journey to continue.
Army: Divisional Manoeuvre and Deployment Training
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Earl Attlee
To ask Her Majesty’s Government when they propose to deploy a largely fully formed and supported division into the field for divisional movement and manoeuvre training.
The Minister of State, Ministry of Defence (Earl Howe) (Con)
My Lords, the Army has a substantial and sophisticated exercise programme in place to ensure that it is trained and ready to operate at the divisional level. This includes training with allies and partners. There are currently no plans to deploy an Army division into the field for training.
Earl Attlee (Con)
My Lords, I thank my noble friend the Minister for that reply. In the face of a resurgent and irresponsible peer opponent, rather than massively increase military capability and defence expenditure, would it not be far more cost effective to test, demonstrate and perfect our supposed ability to deploy at divisional strength against a peer opponent?
Earl Howe
My noble friend makes a very good point. The issue to stress in this context is that if we were to fight at divisional scale, we would likely be doing so as part of a multinational force, probably NATO. The Army therefore regularly exercises with allies and partners, and a good example of that was Exercise Trident Juncture held last November, which involved some 50,000 personnel from 31 allies and partners. That was a really good opportunity to test every element of our war-fighting capability on land.
Lord Tomlinson (Lab)
My Lords, the proposal from the noble Earl, Lord Attlee, is to have troops ready for deployment training. However, it is important that in such an exercise we only deploy troops who are available for deployment. Will the Minister link that to the comments that were attributed to the Ministry of Defence this weekend about the fact that more than 20% of the total staff of the Army are medically unfit for deployment?
Earl Howe
My Lords, the press coverage on this has been somewhat overdramatised. A person can be medically downgraded for a whole variety of reasons, most of which are minor and temporary and do not prevent them fulfilling their core duties. A good example would be a sports injury. Medically non-deployable, another category of personnel, can include more serious circumstances but also includes pregnancy, which—my brief says—is a self-limiting condition.
Lord Robathan (Con)
My Lords, is there not one issue underlying both this Question and that from the noble Lord, Lord West? There are insufficient funds in the defence budget, and if we wish to live up to our international obligations and our aspirations, and to defend this country and our interests abroad in the way we say we do, we may need to spend more on defence.
Earl Howe
My noble friend makes an extremely important point, and we in the Ministry of Defence are always very conscious of the point he has stressed. But it is also important for all three armed services to look at the resources they have to see how they can use them even more effectively. The SDSR in 2015 and the modernising defence programme recognise the changed threat that faces us, and as a result the Army will be able to generate a more capable war-fighting division, at higher readiness, as part of the Joint Force 2025 programme.
Lord Tunnicliffe (Lab)
My Lords, I note that it is not the intention of the Government to deploy and manoeuvre at a divisional level, but I assume it is a capability we believe we have. Is that a capability we have? Do we have the logistics capability and the trained staff necessary for the complex task of manoeuvring large bodies of troops?
Earl Howe
My Lords, yes, the Army is already prepared to deliver a division, albeit at best effort. As I have just said, it is working towards its Joint Force 2025 structures that will deliver a more capable force at higher readiness. The point the noble Lord makes about enablers and logistics is well made. The exercises in which the Army has participated recently have been a very good test of those enablers.
Lord Campbell of Pittenweem (LD)
Does the Minister agree that the exercise proposed by the noble Earl, Lord Attlee, in his Question is much more satisfactory than any desk-bound exercise, if I may put it that way, not least because it allows the demonstration of capability as a practical illustration of deterrence and provides reassurance for our allies? Why does the Army not take the opportunity of a showcase to show that it possesses all these qualities?
Earl Howe
With respect to the noble Lord, in effect it has done so. Exercise Saif Sareea in Oman, for example, which the noble Lord will be aware of, demonstrated very capably the Army’s ability to deploy in strength overseas with partners. I can reassure the noble Lord that the training the Army undertakes, both in the field and by way of simulation, is fully up to the standards he would expect and enables the Army to be confident of its ability to field a division.
Lord Reid of Cardowan (Lab)
My Lords, the essential prerequisite for putting an Army into the field is the capacity to recruit enough soldiers. Without that, you can do very little. We now have the smallest Army since the Napoleonic wars. We have a reduced target of 80,000, which we have failed to meet by several thousand, and we have just launched a campaign through newspapers and the media to recruit snowflakes. This must terrify the Russians. Who is responsible for this? Is it Ministers, civil servants or the outsourced company that has failed so miserably to produce our soldiers?
Earl Howe
My Lords, the responsibility for Army recruitment lies chiefly with the Army itself in conjunction with Capita, with which it has a partnership agreement. I completely accept that Army recruitment figures have fallen seriously short of target. A great deal of work is going on to remedy that. Encouragingly, the number of applications to join the Army over the last year is at a five-year high. The challenge now is to improve the conversion rate between those who apply and those who join, and there are signs of progress in that area as well.
Modernising Defence Programme
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The Minister of State, Ministry of Defence (Earl Howe) (Con)
My Lords, with the leave of the House, I shall now repeat a Statement made earlier today in another place by my right honourable friend the Secretary of State for Defence on the modernising defence programme. The Statement is as follows:
“Mr Speaker, in July I made a Statement setting out headline conclusions from six months of intensive work on the modernising defence programme—the MDP. Since then, work has continued apace. First, I would like to welcome the extra £1.8 billion funding for defence, including the additional £1 billion that was in last month’s Budget. Today, I want to provide an update on the MDP and set out the work that will be ongoing. I have placed a full report on the MDP in the Library of the House.
First, I should put the MDP into context. The 2015 strategic defence and security review was the right plan for defence at that time. The Government put the defence budget on a firmer footing, increasing throughout the life of the Parliament. Defence is much stronger as a result. NATO is growing in strength and the UK is a leader. More allies are meeting the 2% spending guideline, or have developed plans to do so. We are the second-largest defence spender in NATO, one of only a small number of allies to spend 2% of our GDP on defence and to invest 20% of that in upgrading equipment. We can be proud of what we have achieved since 2015, but we must also be vigilant.
National security challenges have become more complex, intertwined and dangerous since 2015, faster than we anticipated. Persistent, aggressive state competition now characterises the international security context. In response to the growing threats, the MDP was launched in January, and in the last year our Armed Forces have demonstrated their growing capability, engaged globally and supported the prosperity of the UK. The Royal Navy has increased its mass and points of presence around the world. We have taken steps to forward base the Army, enhancing our global posture. The Royal Air Force has continued to innovate and has celebrated a proud past in the year of RAF100.
Progress has also been made in cyber and space, as the changing character of warfare makes both domains increasingly important. We have reinforced the UK’s position as a leading voice in NATO and European security, and our Armed Forces have led the line for global Britain, tackling our adversaries abroad to protect our security at home and nurturing enduring relationships with our allies and partners.
Through the work over the past year, the MDP has identified three broad priorities, supported by the additional £1.8 billion investment in defence. First, we will mobilise, making more of what we already have to make our current force more lethal and better able to protect our security. The UK already has a world-leading array of capabilities and we will make the most effective use of them. We will improve the readiness and availability of a range of key defence platforms: major warships, attack submarines, helicopters and a range of ISTAR platforms. We are adjusting overseas training and deployments to increase our global points of presence, better to support allies and influence adversaries. To improve the combat effectiveness of our force, we will reprioritise the current defence programme to increase weapon stockpiles, and we are accelerating work to assure the resilience of our defence systems and capabilities.
We can mobilise a full spectrum of security, economic and influence capabilities, and, where necessary and appropriate, we will make sure we are able to act independently. We will also enhance efforts with our allies and partners, aligning our strategic plans more closely with them, acting as part of combined formations, developing combined capabilities and burden-sharing. We continue to invest in, and grow, our global network of defence personnel and the education and training we offer in the UK and overseas.
Secondly, we will modernise, embracing new technologies to assure our competitive edge. Our adversaries and competitors are accelerating the development of new capabilities and strategies. We must keep pace and conceive of our joint force as consisting of five domains—air, land, sea, cyber and space—rather than the traditional three. We must modernise, targeting priority areas. A major new step will involve an improved Joint Forces Command that will better position defence for future conflict, improving the integration of offensive cyber across our Armed Forces and the rest of government, and providing advantage in the new information-rich environment.
This year the defence innovation fund put £20 million towards projects in areas including unmanned air systems, virtual reality training, and enhanced digital communications for the future commando force. The fund will grow to £50 million in the next financial year, increasing the scope, ambition and value of the projects it can support. We will launch new ‘Spearhead’ innovation programmes that will apply cutting-edge technologies to areas including sub-surface threats to our submarines, our intelligence, surveillance and reconnaissance capability, and command and control in the land environment. To drive innovation and change through the department, I am launching a transformation fund. Next year, I will ring-fence £160 million of the MoD budget to create this fund, which will be available for innovative new military capability. I will look to make a further £340 million available as part of the spending review. This fund will be available for new innovative military capabilities which will allow us to stay one step ahead of our adversaries.
Together, these and other steps will enable the acceleration of our modernisation plans. Thirdly, we will transform, radically changing the way we do business. We need to improve markedly the way we run defence. To sustain strategic advantage in a fast-changing world, we must be capable of continuous and timely adaptation. We will embrace modern business practices and establish a culture that nurtures transformation and innovation. We also need to create financial headroom for modernisation. Based on our work to date, we expect, over the next decade, to achieve the very demanding efficiency targets we were set in 2015, including through investment in a programme of digital transformation.
We will develop a comprehensive strategy to improve recruitment and retention of talent, better reflecting the expectations of the modern workforce. We will access more effectively the talents of our ‘whole force’: all three services, regulars, reserves, Civil Service and industry partners. Looking ahead, dealing effectively with persistent conflict and competition will increasingly hinge on smarter, better-informed long-range strategy. To help achieve these goals we will establish a permanent net assessment unit, as well as a defence policy board of external experts, to bring challenge to defence policy and strategy. Our achievements under the MDP have made defence stronger. The capability investments and policy approaches I have set out—with the £1.8 billion of extra funding—will help to keep us on track to deliver the right UK defence for the challenging decade ahead. Without a shadow of a doubt, there is more work to be done as we move towards next year’s spending review. We must sustain this momentum if we are to realise our long-term goals of increasing the lethality, reach and mass of our Armed Forces. I will do everything in my power to make sure that the UK remains a tier 1 military power in the decade ahead, and that we continue to deliver the strong defence and security that has been the hallmark of the Government. I commend this Statement and my report to the House”.
My Lords, that concludes the Statement.
Lord Campbell of Pittenweem (LD)
My Lords, I thank the noble Earl for repeating the Statement. I share many of the observations that the noble Lord, Lord Tunnicliffe, made in the last moment or two. This is the second time that I have heard the Statement, because I took the opportunity to go and hear it when it was first delivered in the other place. I have to confess that hearing it twice has not improved it, in spite of what I anticipated being the mellifluous tones of the noble Earl, for whom I have the greatest respect. Looked at in the round, the Statement could easily have been made at any time in the course of its nine months of gestation. It contains a whole list of promises but is largely silent about how the promises are to be delivered.
When we examine some of those promises, we see that they reflect things which the Ministry of Defence should be doing now as a matter of course. Surely we are currently enhancing,
“efforts with our allies and partners”.
Indeed, one would think that the very possibility of Brexit would surely make that an even more urgent requirement. Are we going to “act independently”? For example, if independent action in defence of an overseas territory were required, surely we would be capable of doing that at the moment. Why are those two issues focused on in that way that they are in the Statement?
Nor is there any mention of the immediate challenges that face the Ministry of Defence, such as the gap of billions of pounds in the equipment budget—an issue that the noble Earl will recall I have raised with him on two recent previous occasions. How will that gap be filled? I will return to the question of financial support in a moment or two, because the Statement contains a couple of sentences that justify careful reading and interpretation.
There has already been reference to the fiasco of Army recruitment. How will that be remedied? Is the company that has responsibility simply to be sacked? Why not go back to the previous system, which, as far as I recall, was effective? Was the idea of letting it out designed to save money? If it was, it has certainly not been successful in the sense of producing the promises that were made in respect of it.
Finally, there is the question of the continuing fall in and erratic nature of the value of the pound. How is that affecting the ability of the Ministry of Defence to continue with its programmes of acquisition? What steps, if any, has the Treasury offered in order to assist if necessary because of these fluctuations?
Perhaps the most important passage is the one to which I referred a moment ago and said that I would come to. Two consecutive sentences say:
“We also need to create financial headroom for modernisation. Based on our work to date, we expect to achieve over the next decade the very demanding efficiency targets we were set in 2015, including”—
here there is a typographical error—
“through investment in a programme of digitally enabled transformation”.
I know of no government programme of “digitally enabled transformation” in the recent past that has proved anything other than more expensive than intended and with delivery several years after it was originally projected. It is a pretty optimistic tool to use in the issue of finding headroom in defence spending. I suspect that that tells us that the Ministry of Defence is not expecting any more increase in expenditure.
In advance of today’s Statement and the publication of the report, there was an apparently well-sourced leak that the Secretary of State for Defence was going to announce that one of the ambitions would be to raise defence expenditure from 2% of GDP to 3% annually. That did not appear in the Statement. When the question was put to him specifically in the other place by the Chairman of the Defence Select Committee, he very neatly sidestepped it. I suspect that that might well be an ambition of the department—but I equally suspect that the Treasury has made it pretty clear that that ambition is not capable of being resolved.
It is also a pity that we have had the Statement and that the publication of the report did not take place in sufficient time for it to be considered as a whole. I very much hope that the noble Earl will, through the usual channels, be willing to commit to endeavour to have a full-scale debate on the terms of the report. That is a much fuller indication of what the Government’s intentions are—albeit, so far as the noble Lord, Lord Tunnicliffe, and myself are concerned, that the report and the Statement leave a great deal to be desired.
Earl Howe
My Lords, I am grateful to both noble Lords for their questions and comments, which, in some respects, have covered similar ground. I will endeavour to reply to as many of the points as I can.
It is a little unfair to level at the Government the accusation that we have been doing very little since we came into office. Chapter 1 of the report spells out the wide range of investment and procurement that the Government have taken forward since 2015 in particular. That programme continues on a rising budget, as is often overlooked.
The noble Lords, Lord Tunnicliffe and Lord Campbell, asked about the additional money we were granted in the Budget. The first thing to say is that the additional money granted to us this year and next will enable us to proceed with programmes that we are clear are priorities. One of these is our defensive cyber programme; another is stockpiling and spares. A further priority is the work we are doing at pace on offensive cyber. The money will also enable us to proceed with a more cost-efficient profiling of payments relating to the dreadnought programme. More generally, the money is excellent news for our modernisation programme in a number of areas. The report spells those out. Some would say that the significant thing about the Budget settlement is that we are not anywhere near making or talking about the kinds of cuts to military capability that some commentators were predicting earlier in the year. That sends an important message.
Both noble Lords asked about the circumstances in which we might act independently. I would not want to place too much emphasis on that part of the Statement. In the vast majority of situations we plan on the basis of working alongside our allies in NATO—the cornerstone of our defence—or as part of some other multilateral force, hence the emphasis in the report on the theme of international by design, which was a key strand of policy articulated in the SDSR. We are the lead nation in the JEF, for example. We lead the framework NATO battalion in Estonia. However, the nation would expect that we should, in exceptional circumstances, be able to act independently, not least in defence of the realm and our overseas territories, and to respond effectively in disaster relief and humanitarian operations that our allies might not necessarily wish to take part in.
As far as the modernisation of defence practices goes, we in the ministry are aware that there is ample scope for more automation and digitisation in back-office functions more broadly. This is covered quite well on page 17 of the report. It is about instilling a culture in defence built on leaner structures and less cumbersome reporting lines, not least when it comes to our relationship with industry.
The noble Lord, Lord Tunnicliffe, asked what the practical difference was between the innovation fund and the transformation fund. Both are about improving our capability. The transformation fund will add to our ability to pursue promising new projects, technologies or equipment at the pace required to counter the threats. It will focus in particular on opportunities to increase our lethality and mass. The innovation fund, which of course emerged from the SDSR, is a 10-year programme. That is much more about seeing how new ideas can transform defence and testing the utility of those ideas at an earlier stage of their development. It is also about pump-priming good new ideas.
Both noble Lords asked me about the people programme and, in particular, about Capita and our recruitment and retention. We accepted the conclusions and recommendations of the recent NAO report. We await the PAC report before replying formally, but I will just say that the tone of the final report is disappointing and provides only limited acknowledgement of the work that the MoD has undertaken or has planned. The NAO recommendations largely address areas in which work is already under way or planned. As regards Capita, we accept, of course, that the recruit partnering project has not performed to the satisfaction of the Army or, indeed, Capita itself. Significant time and resource has been invested to improve that situation. Part of the problem is that the defence recruiting system let us down. Significant additional Capita resource has been deployed to improve the DRS performance and, while there continue to be issues, I can tell both noble Lords that performance has improved significantly.
The noble Lord, Lord Tunnicliffe, asked about the strategic net assessment. Strategic net assessment is an intellectual discipline. It looks across all dimensions of military competition and assesses how the choices of both friends and foes may play out over the short, medium and long term. Its conclusions can be used to develop more nuanced and better-informed defence strategy so that we can better anticipate our adversaries’ actions and counter them more effectively. That will be closely co-ordinated across government to ensure coherence.
My time has almost expired, but I want to answer the question of the noble Lord, Lord Campbell, about the funding gap in the equipment plan identified by the NAO. The NAO report reflects the unlikely situation where all the equipment plan financial risks materialise at the same time. We are confident that we will deliver the equipment plan within budget this year, as we did last year. We recognise the financial challenges that our programmes pose: they are ambitious and complex but we are addressing these after securing the financial boost arising from the Budget and reducing forecast costs through efficiency savings. We have taken steps to enable longer-term affordability by improving financial management of the plan. A new executive agency has been established to lead on procurement and in-service support and decommissioning of all nuclear submarines, as the noble Lord is aware. It is important to understand that the MoD manages a £5.1 billion equipment plan contingency and a £1.1 billion nuclear contingency within the £186 billion allocated to the plan precisely to manage those cost pressures.
As for the value of the pound, I believe that I have said on previous occasions that we benefit from being able to engage in hedging operations to shelter the fluctuations in sterling against the dollar, in particular. I will write to noble Lords on those questions that I have not had time to answer.
Lord Craig of Radley (CB)
My Lords, I thank the noble Earl for repeating the Statement. There are some bits of the Statement that are, of course, welcome, such as further thought and action on cyber and on space. The noble Earl mentioned improved resilience, but I see very little indication of that. Will he spell out a little more what he means by improving resilience? One word that was not mentioned, either by the noble Earl or in the “Dear colleague” letter, which I have read, is the word “Brexit”. I wonder how the Ministry of Defence is dealing with this subject. Can the Minister give any indication of the possibilities that could impact on what we have heard today about the way the money is to be spent, for example if Brexit takes a turn in the direction of no deal?
Earl Howe
My Lords, I can deal very quickly with the second part of the noble and gallant Lord’s question. The Ministry of Defence stands ready to support other government departments if called upon, and if we find that the resources of those departments are insufficient in themselves. Having said that, we have received no formal bids as yet from other departments, despite the fact that we have asked them what they envisage requiring. There will be approximately 3,500 personnel standing ready in case of need to meet such situations.
Resilience has been a major theme of our deliberations. There are quite a number of strands to that. One is to look carefully at how we can enhance our chemical, biological, radiological and nuclear defence capabilities, investing further in Porton Down. We are also, as the report makes clear, enhancing our ability to share submarine threat data with our closest NATO allies. We are improving our secure communications, protecting our networks from cyberattacks and improving our ability to exchange information with NATO partners, as I have said.
We are also clear that we need to invest in improving power-generation capabilities for both Type 23 and Type 45 Royal Navy ships, enhancing their overall capability and productivity. There has been criticism, as I am sure the noble and gallant Lord is aware, of the extent to which some Royal Navy ships have been kept in port rather than being deployed. We are clear that we need to enable the Royal Navy to do better in that area.
The other obvious example of improving resilience is increasing the provision of spares and support to enhance global deployability and presence, particularly as regards the helicopter fleet.
Lord Browne of Ladyton (Lab)
My Lords, I woke this morning to the news of the transformation fund of £160 million. Clearly, that was what the MoD briefed last night from this Statement because that was what the Secretary of State wanted the media to focus on—and they have done, for most of today. So I too will focus on this in your Lordships’ House.
Since the Statement was first made, the MoD has briefed further that the fund will be used in part to look at artificial intelligence and its uses in a series of new programmes, as well as—this is the phrase that I understand was used—tackling threats to submarines. These must be new threats. The Statement itself expresses another ambition for it, saying:
“This fund will be available for new innovative military capability which allows us to stay one step ahead of our adversaries”.
This seems a heroic ambition for £160 million. I say that because, in 2014, Google paid £400 million for a University College London spin-out called DeepMind. The 2017 accounts of that business show that Google DeepMind staff costs are in excess of £200 million a year. So it does not seem that £160 million will go very far in that challenging environment.
In order that your Lordships’ House and others who will have to do so can assess what this money will be used for and whether that is a justifiable use with any significant result, can the Minister explain—either today or in writing—what series of new programmes this money will be deployed to develop? What are these new threats to our submarines that need to be tackled and are not already accounted for in the MoD budget?
Earl Howe
My Lords, the defence transformation fund means that £160 million will be available next year from within the MoD’s existing budget, and we are looking to make a further £340 million available as part of the spending review. That will be part of our bid. The transformation fund has been established, in general terms, so that we can respond rapidly to new opportunities to invest in technologies that are game changing, and projects that move us forward at pace in areas that represent priorities. It will complement the innovation fund, as I have explained, although that fund will in itself more than double next year. It is too soon for me to itemise the projects and technologies that this money will be spent on. This is work in progress, but we are clear that the fund will perform a very useful function in enabling all the commands to focus their minds on priorities and potentially game-changing areas of activity. As further information becomes available, no doubt noble Lords can ask me about that and I shall be happy to provide further details in due course.
Lord Hennessy of Nympsfield (CB)
In the noble Earl’s judgment, what above all in this defence review distinguishes it from its 13 predecessors since 1945? As a footnote, I am greatly interested in the new tauter approach to strategic policy-making, with the new net assessment unit. To enable your Lordships to test the quality of this new approach, I wonder whether the Minister could place in the Library a copy of the new strategic assessment of the high north, undertaken as a pilot project, which is mentioned in today’s document?
Earl Howe
My Lords, if it is possible for the Ministry of Defence to share that document, I will certainly do as the noble Lord asks. In answer to his first question, there are two things to say about the MDP. First, this has been a major and very thorough piece of work. Secondly, the document is essentially strategic in its nature; it focuses on key defence capabilities and has affirmed the central elements of our strategy as articulated in SDSR 15, from which, as the noble Lord is aware, it emerged. It has also guided our investment decisions on capabilities, announced at the Budget, and updated our key policies. It is designed to keep us on track to deliver the right defence for the UK, and does so in what we see as a challenging decade ahead. As noble Lords read and reread the report, I am sure that it will make clear a lot of detail underlying the general proposition that I have just articulated.
Baroness Smith of Newnham (LD)
My Lords, as the noble Earl has just said, the present document is very detailed, yet in many ways it appears to be a glossy brochure with a lot of aspirations. These remind me rather of the vagueness that we get on what Brexit might look like. There do not appear to be clear strategies for where the Government want to go. Can the noble Earl explain what £160 million might actually be able to deliver? I think it is about the equivalent of two F35s, and I am not quite sure how will keep this one step ahead of our adversaries. I also come back to the question raised by my noble friend Lord Campbell about the exchange rate because hedging is one thing, but we are moving towards a one-for-one rate in the pound to the dollar. Is it really credible to say that the Government have hedged all of our defence budget in that way?
Earl Howe
We have not hedged all our defence budget, but we have hedged a substantial proportion of it, particularly that which is payable in dollars. I was speaking to our finance director last week about this. Although she could never be sanguine about the way the pound is moving, she is much clearer now that we have an affordable equipment budget over the next couple of years, which is the period over which she aims to hedge. I have already made it clear to the noble Lord, Lord Browne, that it is, unfortunately, impossible for me to enumerate at this point those projects which will come under the umbrella of the transformation fund. It was said that £160 million is not a great deal of money—it sounds like a great deal of money to me, I must say—but one should not think of transformation simply in terms of platforms and assets. One has to think of it in terms of different ways of working and of modernising practices within defence. That is where this fund will score most heavily.
Lord Touhig (Lab)
In the Statement we are told that the Government wish,
“to improve markedly the way we run Defence”,
and that:
“Based on our work to date, we expect to achieve over the next decade the very demanding efficiency targets we were set in 2015”.
Can the Minister remind the House of how much money the 2015 defence review said would be saved by efficiency savings and over what period? How much has been saved to date? Have any service personnel been deployed to work in the MoD to fill vacancies caused by civil servants leaving because of efficiency savings achieved to date?
Earl Howe
I am afraid I do not have the information in my brief to answer the last part of the noble Lord’s question, but the target we set ourselves in 2015 was £7.4 billion of efficiency savings. We have achieved 70% of our target; we have achieved £5 billion. That was the target over a five-year period. We are now looking further ahead to see what further efficiencies we can generate over a 10-year period. That work is ongoing.
Lord West of Spithead (Lab)
My Lords, I do not normally wear a uniform for a Statement on defence, but I have just been at a commemoration of the Battle of North Cape, where the very modern German battle cruiser “Scharnhorst” was sunk on Boxing Day 1943 by a British battleship, two cruisers and 10 destroyers, which hit her with numerous 14-inch shells and 6-inch shells and 19 torpedoes before she sank.
There is lots of rain coming in. If the roof comes down, I will stop talking. It is a bit like being on “Ardent” under gunfire; I rather like it.
The reality is that numbers count, but that is not my point. I feel this is rather a damp squib, to be quite honest, and so was the Statement in July. It is full of platitudes—motherhood and apple pie-type statements. There are lots of things that I would expect to be going on anyway. If they were not, somebody ought to be taken out and shot. It is really very disappointing. The good thing is that the Secretary of State for Defence managed to get £1.8 billion extra for defence, which was fantastic, and he has managed to kick into touch, or into next year, when the really interesting things will happen in the spending review decisions about defence. Not long ago, it looked as if decisions would be made to cut things that would have been quite disastrous for the nation, so he has managed to slip that sideways. To be quite honest, this Statement is not exciting. It is like a glossy brochure, as the noble Baroness said, and I find that very disappointing. The £1.8 billion figure has been talked about before. The £800 million was for Dreadnought and has been pulled forward. We were told that the £1 billion was for Dreadnought, anti-submarine warfare and cyber. It seems that some of this has been purloined for other things. I will be interested in how much of it is for anti-submarine warfare, which is what was mentioned by the Secretary of State when he said we have an extra £1 billion.
The Statement refers to an increase in the “mass” of the Navy and the military. We have certainly got heavier because we have a bloody great aircraft carrier. In terms of numbers, the only difference is that, because we kept three OPVs, we have two extra ships—that is all over the next 10 years or so, because the 31e is replacing other ships. I find that a little misleading.
The Statement says that we are a “leading voice” in European security. Europe’s disgraceful decision on Galileo does not make me think that we are a leading voice in European security—we are in NATO, but not in European security. That is worrying.
My noble friend Lord Tunnicliffe mentioned the increase in weapon stockpiles. The MoD has always been bad about that but, as soon you increase weapon stockpiles, you take money from somewhere else. We do not know where this money is coming from. Similarly with some other references to amounts of money, it is not clear where they are coming from, but what is quite clear is that we cannot meet the demanding efficiency targets. One knows that from talking with everyone in the MoD. To pretend that we can is wrong; it is no good fooling and deluding ourselves. Does the Minister really believe that we will meet all the efficiency targets and save the amount of money that we said we would? Yes, we can manage to balance the books over the next two years and manage to get equipment by slipping and sliding things around—the MoD has done that for years—but we have a real problem. Let us face it: there is insufficient money in defence at the moment to run the programme that we would like. Somehow that has to be resolved. It will be fought out in next year’s spending round—the Secretary of State has been clever in sliding it to then and not taking terrible decisions now, but, my goodness, we need to look carefully. To be quite honest, this Statement is really a damp squib.
Earl Howe
I am sorry that the noble Lord feels that way. I gently put it to him that the size of the document belies the depth and significance of its content. This was never going to be about a catalogue of future assets or platforms or number of ships in the Navy. As I said earlier, the programme is largely strategic, focusing on those key defence capabilities on which we think we should concentrate in the light of the threats facing us. In effect, it is a sense check of the SDSR of 2015.
The noble Lord rightly says that the spending review will be an important ingredient in our budget over the longer term, but the outcomes of the MDP will inform next year’s spending review in a helpful way. It provides a solid foundation on which to base the case that we will present for defence spending over the coming few years.
Noble Lords should not underestimate the importance of the Budget settlement. That settlement will undoubtedly enable our Armed Forces to modernise and meet the intensifying threats and risks that we now face, including prioritising investment in key capabilities. The spending review will come next year, but we have in the meantime the ability to move forward on a number of vital fronts, which is extremely valuable.
Lord Touhig
My Lords, the Minister was not able to answer my third point. Will he discover that information and write to me?
Occupied Palestinian Territories
Earl Howe Excerpts(5 years, 4 months ago)
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The Minister of State, Ministry of Defence (Earl Howe) (Con)
My Lords, it is the turn of the Liberal Democrats.
Baroness Sheehan
Does the Minister agree that British companies must ensure that none of their products is used in the demolition of Palestinian homes and properties in the Occupied Territories? In her response, will she address in particular the use of JCB bulldozers in the flattening of Palestinian homes and schools?
Reconciliation: Role of British Foreign, Defence and International Development Policy
Earl Howe Excerpts(5 years, 4 months ago)
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The Minister of State, Ministry of Defence (Earl Howe) (Con)
My Lords, it is a particular privilege for me to respond on behalf of the Government to this important Motion. I thank the most reverend Primate not only for tabling it but for introducing it with his characteristic authority and insight. I am sure that he will agree that this has been a debate of notable depth and quality. Indeed, I can say without fear of correction that the messages and ideas articulated by your Lordships are deserving of close consideration within government.
I begin by acknowledging the obvious: that reconciliation is a vital part of ending violent conflicts which claim so many innocent lives and immeasurably harm the lives of so many others. Reconciliation is also the ultimate safeguard to prevent a relapse into conflict or repeating cycles of violence.
We see about us how the scourge of violent conflict continues to affect many parts of the world. Over the past decade, the number of conflicts has increased, and we have observed a disturbing pattern in civil wars. More than half—57%—of countries that experienced a civil war between 1945 and 2009 have again relapsed into violence. It is vital that we continue to strive to prevent, reduce and bring to an end conflict wherever we can. As the most reverend Primate has argued, this requires a strategic approach.
Addressing, as we must, the root causes and drivers of armed conflict requires three broad strands of activity: early prevention, crisis response, and conflict resolution. Our Building Stability Overseas Strategy, published in 2012, and the introduction in 2017 of the fusion doctrine in the national security capability review, have given the UK a firm basis on which to develop our conflict response work. We can, I think, take some pride in the scale of this work. On average, between 2007 and 2016, the UK has been the second-largest OECD donor supporting civilian peacebuilding, conflict prevention and resolution. In 2016, the UK spent $581 million—up from $291 million in 2008—on conflict, peace and security. Although some people’s perceptions may be different, our work in this area is truly cross-Whitehall in nature. It is co-ordinated through the National Security Council and the Cabinet Office and involves the specialist skills of the Foreign and Commonwealth Office, the Department for International Development, the Ministry of Defence and the Stabilisation Unit, all supported by supported by the £1.2 billion Conflict, Stability and Security Fund, the CSSF.
Promoting reconciliation is a vital ingredient in this activity. However we define it, and there are a number of definitions out there, reconciliation is about transforming the relationships between the parties to a conflict—between victims and perpetrators of violence—while addressing elements of the past and using approaches that are properly inclusive. In short, as my noble friend Lady Stroud described so well, it is a process of moving from a divided past to a shared future. The UK supports reconciliation in a number of ways. We have recently doubled our contribution to the United Nations Peacebuilding Fund from £16 million to £32 million annually between now and 2020, a valuable means of supporting international peacebuilding efforts. We strongly support the Secretary-General in his “sustaining peace” agenda. We also work with international non-governmental organisations that specialise in reconciliation and peacebuilding.
A number of noble Lords have referred to the importance of promoting transitional justice mechanisms, which can include truth commissions, judicial processes, mechanisms for reparations as a means of making amends, and supporting longer-term institutional reforms. Again, this is central to much of our work. I completely agree with the comments of the noble Lords, Lord Anderson and Lord Boateng, on that theme. We also lend direct support to local reconciliation projects on the ground. For example, the CSSF is funding a multifaceted reconciliation process in the Nineveh plains and Kirkuk in Iraq, involving civil society events and community-level engagement projects. As noble Lords have pointed out, this is far from straightforward. Conflicts become more complex by the day: they become more internationalised, their non-state armed groups become more fragmented and the war economies that they create become more powerful. All this makes conflicts more intractable. Half the conflicts in the world today have been with us for more than 20 years. This complexity dictates that Governments, including our own, should approach conflict resolution with sensitivity and care.
Reconciliation cannot be imposed from outside: it can only be fostered. Often, the best approach is for us to actively support specialist organisations which can build dialogue and trust, and can nurture reconciliation through community-led action. The Government favour that approach but, as noble Lords have suggested, we can undoubtedly do more to build on that. That includes looking to see how we can strengthen societal resilience, not least to political and economic shocks. I was grateful to the noble Lord, Lord Alderdice, for stressing that.
As we consider the potential for reconciliation in the conflicts that dominate the headlines today, we must also recognise the need to exercise sensitivity and care in the UK’s own interventions. The situations in Yemen, Syria, Cyprus, Kashmir, Cameroon and Haiti might merit separate debates in their own right, for each of those conflicts is unique in its causes and complexity. They are big topics. Each of them will require time and patience, as well as well-judged engagement and support, if they are to be satisfactorily resolved.
However, this debate has highlighted that there is scope for us to do more, in three areas in particular. First, as the noble Lord, Lord Ramsbotham, and my noble friend Lord Trimble illustrated so well—my noble friend Lady Fall also spoke powerfully about it—any society on the road to reconciliation has to take ownership of that process. So there is undoubtedly more we can do to enhance our work with civil society, supporting grass-roots reconciliation efforts through engaging opinion leaders such as religious figures, community leaders and leaders in the local private sector. Of course, in answer to my noble friend Lord Taylor, we can do this, as we do now, through the good offices of our overseas embassies.
In that context, the noble Baroness, Lady Andrews, reminded us of the admirable and varied work of the British Council, including the UK’s Cultural Protection Fund, which the British Council manages. That fund does wonderful work, currently supporting 45 projects across 12 countries to protect vital cultural heritage that is at risk due to conflict in the wider Middle East and north Africa region. There is £30 million in the fund, which supports efforts to keep cultural heritage sites and objects safe, as well as the recording, conservation and restoration of cultural heritage, helping to bolster a positive vision of shared identity at a time of crisis. It is helping to position the UK as a prominent actor in cultural protection in many parts of the world, and I believe that it is seen as a model of best practice, enabling communities to play a pivotal role in the care of their own heritage. I can tell the noble Baroness that, as we approach the end of the funding period, we are working closely with DCMS on opportunities to continue and expand the fund beyond 2020. This includes targeted funding, disaster preparedness and the protection of cultural heritage post disaster.
Secondly, the noble Lord, Lord Collins, and other noble Lords were right to urge us to collaborate ever more closely with international partners, including through multilateral organisations such as the UN, to prevent conflict and support sustainable peace. The direct involvement of the United Kingdom in UN peacekeeping operations has considerably increased in recent years, and we do our best to lead by example, in training and mentoring peacekeeping teams from other countries. I was grateful to the noble Lord, Lord Hannay, for his remarks on this point, and to the noble Lord, Lord Campbell, who spoke about the importance of maintaining hard power. However, a feature of peacekeeping operations is that they are becoming more dangerous: they are less and less about policing a brokered peace settlement, and more and more involve the enforced separation of warring factions. Reconciliation in such circumstances can often be a distant prospect.
However, even in situations of that kind, where there are factions which merely coexist in an uneasy truce, with little or no mutual trust or shared values, there are opportunities. When I attended the UN peacekeeping conference in Vancouver last year, I made a particular point of strongly endorsing the Secretary-General’s drive to include more women in peacekeeping roles as a way of promoting a culture of gender equality and of interacting more effectively with local populations. The noble Lord, Lord Campbell, referred to the variable quality and sometimes unacceptable behaviour of peacekeeping troops; I can tell him that we actively promote the Secretary-General’s Action for Peacekeeping initiative, which is designed to address exactly that issue.
Thirdly, even though we do our best in government not to operate in departmental silos, I am sure that we can do better as regards interdepartmental joint working to bring the collective skills of our defence, development and foreign policy experts towards a more co-ordinated approach. There are mechanisms at working level, such as the CSSF and the National Security Council, to fulfil part of that remit, but these can be broadened. The most reverend Primate has proposed the creation of a joint reconciliation unit. A concept of that sort, if it is designed correctly, could make a contribution to addressing gaps in our work, and on behalf of the Government I undertake to consider it seriously.
There are some improvements we can make in, for example, linking our horizon-scanning and early warning systems to well-targeted and rapid responses to crises as they arise. If I sound a little cautious, it is because I think we need to be realistic about what could be expected to flow from such a unit. Clearly, we would need to make sure that it represents the best mechanism for achieving our desired ends. For example, it might be more effective to focus our efforts and resources even more on mobilising fellow spirits, such as peer Governments, multilateral organisations and reputable organisations from civil society, to deliver conflict prevention and mediation.
On, I hope, an encouraging note, I can tell the most reverend Primate—and indeed the noble Lord, Lord Boateng—that there is now a cross-government working group, led by the Stabilisation Unit, which has been tasked by the National Security Adviser to explore cross-government collaboration platforms on reconciliation.
My noble friend Lady Brady questioned whether the UK’s aid budget is spent in a way that promotes our national interest. Some 50% of DfID’s aid budget is spend in fragile states because poverty is increasingly concentrated in these areas. Conflict and fragility will become the main reasons why extreme poverty exists. Our aid budget is also vital to ensure that we tackle the great global challenges, from the root causes of mass migration and disease to the threat of terrorism and global climate change, all of which directly threaten the UK’s national interest. The noble Lord, Lord Collins, was absolutely right to bring that point out.
DfID’s building stability framework, the BSF, aims to change how aid is delivered in fragile states and to ensure that we also work on—not only in—conflict, so that all our development programmes have a dual dividend; namely, reducing poverty and contributing to long-term stability. This approach will help states and communities to find pathways out of conflict to a sustainable peace.
My noble friend Lord Holmes focused on the imperative of inclusion, specifically inclusion of the disabled; and, in a more general way, the right reverend Prelate the Bishop of Coventry did the same. Inclusion is a vital component of building peace, starting from peace agreements through to local development projects. In December this year, the DfID Secretary of State, Penny Mordaunt, launched her department’s five-year strategy for disability-inclusive development. However, we continue to understand and learn about inclusion. The Government are supporting the UK peacebuilding organisation Conciliation Resources, which is conducting research into the inclusion of disabled people in peace processes. We have a long way to go on that but the Government, and DfID in particular, are adamant about the central aim, which is to leave no one behind.
I hope I can help my noble friend Lord Elton on the respective roles of the Conflict, Stability and Security Fund and the Stabilisation Unit. I believe that he misunderstands not only their roles but their relationship with individual departments. It is the departments that make and hold the policy and agree on an approach. The Stabilisation Unit then implements that policy—for example, by finding staff to deploy overseas to assist with stabilisation and post-conflict work—and the CSSF that works through its £1.2 billion pot. Therefore, the CSSF and the Stabilisation Unit are the instruments of the FCO/MoD/DfID; it is not the other way round. I hope that brief explanation is also helpful to my noble friend Lord Taylor.
The noble Lord, Lord Jay, asked about the extent to which the National Security Council engages with NGOs, faith groups and others, and I hope I can reassure him on that. The members of the NSC—that is, Ministers—have frequent engagement with non-government figures such as faith leaders and NGOs. Similarly, officials who advise the NSC also have frequent contact with non-government actors to discuss conflicts and other international issues.
The noble Lord, Lord Boateng, spoke of the importance of investing in diplomatic skills, including language skills. I hope he is glad to hear that the FCO has reopened its language school, which was closed in the early 2000s. This is enabling the FCO to give its staff the required skills to both speak and listen effectively to their interlocutors overseas. The FCO has also established the Diplomatic Academy, which offers training to both FCO staff and staff from across Whitehall engaged in international issues.
There is never time in debates of this intricacy and depth for me to cover all the questions that have been asked of me, and I willingly undertake to write to noble Lords on any matters that I have not properly addressed. There are many parts of the body to form the whole, as Corinthians 12 reminds us. However, it is perhaps appropriate for me to end by reflecting on what I think we all recognise—that reconciliation is a long road, and it is one that is rarely documented or adequately supported. We must learn to persevere and to support communities and nations emerging from violence not just to coexist but to make reconciliation what it ultimately is—a personal experience based on truth-telling, inclusiveness and a sense of justice.
Twenty-three years after the Dayton agreement, citizens in Bosnia still identify primarily along ethnic lines and not as Bosnians. Lessons such as that can be observed and, as speakers in this debate have highlighted, we have the tools both to learn from them and to apply that learning to better effect. I say to the most reverend Primate that the will to do so is as strong as he would wish.
Counter-Terrorism and Border Security Bill
Earl Howe ExcerptsMonday 3rd December 2018
(5 years, 5 months ago)
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(b) the person’s action or possession was for the purposes of—(i) carrying out work as a journalist, or(ii) academic research.”
The Minister of State, Ministry of Defence (Earl Howe) (Con)
My Lords, we have had detailed and insightful debates on Clause 3, particularly on the operation of the “reasonable excuse” defence in Section 58 of the Terrorism Act 2000, which Clause 3 amends. Amendment 6 responds to arguments made in both Houses that we should provide greater certainty that particular categories of legitimate activity will constitute a reasonable excuse.
As I explained previously—and as my right honourable friend the Minister for Security and Economic Crime explained in the House of Commons—it is clear that those engaged in legitimate journalism and academic research have been able to rely on the “reasonable excuse” defence provided by the Section 58 offence in its present form since it was passed in 2000. The Government have been equally clear that this will continue to be the case under Section 58 as it will be amended by Clause 3.
We have also set out the longstanding legal position, codified by the Appellate Committee of this House in a 2008 judgment, that it is for the jury to determine whether a particular excuse in a particular case is reasonable on the basis of all the evidence in that case. Such a determination will always be highly fact-specific; it is not possible to prescribe particular exemptions or reasonable excuses in advance and in the abstract. The Government have therefore taken the approach until now that it has not been necessary to write these categories of reasonable excuse into the Bill.
However, we have heard the points made by your Lordships and reflected on the concerns raised. We recognise that the Government’s assurances have not satisfied noble Lords thus far as to the protection afforded to journalists and academics by Section 58, and which will apply following Section 58 as amended by the Bill. It is clear that the Government need to go further and provide greater assurance. In that spirit, we tabled Amendment 6.
The amendment will make it clear in the Bill that it will be a reasonable excuse for a person to access terrorist material falling under Section 58 for the purposes of academic research and carrying out work as a journalist. This will apply both to the existing limbs of Section 58—that is, the collection, possession or making a record of such material—and the new limb of viewing material online, which Clause 3 will insert. The amendment will underline and put beyond doubt the position already set out by the Government. I hope that it will be welcomed by your Lordships as providing the necessary assurance to those working in the fields of journalism and academia who have a legitimate reason to access terrorist material.
The amendment has been carefully drafted so as to complement, rather than overturn, the existing legal position relating to reasonable excuses. Clause 3(4) already provides one example of a case that may constitute a reasonable excuse, which is where the defendant did not know and had no reason to believe that the material in question contained information likely to be useful to a terrorist. The amendment expands on that to additionally provide the two examples I mentioned.
I stress that this is an indicative rather than exhaustive list of cases that may constitute a reasonable excuse, and it will remain open to defendants to advance other types of reasonable excuse. This will ensure that we retain the flexibility to cover other unforeseen circumstances that may arise, and that we do not inadvertently close off the “reasonable excuse” defence to those who may have an equally reasonable excuse of a different nature. I appreciate this construction is not self-evident from the Government’s amendment, so I understand why the noble Lord, Lord Paddick, tabled Amendment 7. But key here are the words,
“but are not limited to”,
in new subsection (3A) of Section 58 of the Terrorism Act 2000. That qualification will apply to the new paragraph (b) inserted by the Government’s amendment. All will become clear once the Bill is reprinted after Report.
Amendment 6 does not provide an absolute and automatic exemption for any person who states that they are a journalist or academic. That would not be appropriate, and it would move away from the position established in case law by this House. In Committee, a number of your Lordships highlighted the difficulties in legislating to differentiate legitimate journalism from that which may be carried out by a person with more nefarious intentions, whether as a cover for their true activities or as a platform to propagate their terrorist views. The approach we are taking will ensure that juries will be able to make such distinctions in individual cases, based on the particular facts.
I hope that Amendment 6 will be welcomed as addressing the concerns that have been raised, and as offering a meaningful compromise to those noble Lords who have raised them. I commend it to the House and I beg to move.
Amendment 7 (to Amendment 6)
Earl Howe
My Lords, I am grateful to all noble Lords who have spoken, especially for the supportive comments from the noble Baroness, Lady Jones, and my noble friend Lord Attlee, but also for the very helpful remarks from the noble Lord, Lord Kennedy. I shall endeavour to cover all questions that have been put.
The noble Baroness, Lady Hamwee, asked a drafting question. She asked where paragraph (a) will actually fall in the text. I can tell her that paragraph (a) will begin with the words after line 40 on page 2, so I hope that it will run in the broad way rather than the narrow way in which she hoped it would.
Baroness Hamwee
The last words of line 40 read,
“in which at the time”
and the next line starts, “of the person’s action”. As I said, I identified two places in line 40 where paragraph (a) might be inserted. It is a drafting point but also a point of substance, because where paragraph (a) starts actually affects the whole of the point. Can the Minister give a little more assistance?
Earl Attlee
My Lords, perhaps if my noble friend the Minister is not absolutely certain on this point we could return to it at Third Reading to clarify the drafting amendment.
Earl Howe
My Lords, I was not as precise as I should have been. The words after,
“(but are not limited to) those in which”,
will become paragraph (a). So it will read,
“(but are not limited to) those in which (a) at the time of the person’s action or possession, the person did not know”,
et cetera. Paragraph (b) will follow after line 44. I hope that that clarifies the point.
My noble friend Lord Lothian asked a series of very reasonable questions about the meaning of the words “journalist” and “academic”. The distinction between journalism that constitutes a reasonable excuse and that which does not, for the purpose of this offence, will inevitably be highly fact-specific. As several noble Lords commented in earlier debates on the Bill, it is just not possible to provide in advance an exhaustive definition of a journalist or of a legitimate journalist. This is something that we are clear needs to be determined by a jury in particular cases on the basis of all the evidence. We have made it clear that our amendment adds an indicative list of categories of reasonable excuse and does not provide either an exhaustive list or an absolute exemption. It is important to remember that juries will retain their existing discretion to decide whether a particular excuse is reasonable on a case-by-case basis. The same logic would apply to the meaning of the word “academic”. The category of person that my noble friend described might or might not be considered by a jury to be an academic: it would depend on the facts of the case. The jury might consider that there was still a reasonable excuse for a particular individual. I hope that that is helpful.
Baroness Hamwee
My Lords, I am grateful to the Minister for that explanation because it answers my point and deals with my amendment. I am sorry to have been tedious and to have consolidated my reputation for pedantry—the noble Lord, Lord Harris, says that is impossible—but I think it was a substantive point. I beg leave to withdraw the amendment.
Lord Carlile of Berriew
My Lords, with great respect to my noble friend, and indeed to my noble and learned friend on my right, I wonder why one needs to say something twice in the same statute.
Earl Howe
My Lords, Amendment 10 returns us to an area on which we have previously had helpful and extensive debates: namely, the question of how much evidence is required to establish a reasonable excuse defence under Clause 4, on whom the burden of proof falls and how this is set out in the legislation. As the noble Lord, Lord Rosser, rightly said, these issues have previously caused some uncertainty as they require Clause 4 to be read in conjunction with Section 118 of the Terrorism Act 2000, which sets out how the burden of proof applies to a number of defences to criminal offences within the 2000 Act including, but not limited to, the new designated area offence. It may therefore be helpful if I remind your Lordships of how these provisions operate.
The approach taken in relation to proving a reasonable excuse defence under Clause 4, which inserts the designated area offence into the Terrorism Act 2000, is the exact same formulation that is used elsewhere in various defences to offences contained in the 2000 Act, including the defence to the Section 58 offence which is amended by Clause 3. Clause 4 refers to a defendant proving that they have “a reasonable excuse”. We must then turn to Section 118, which makes further provision on what is required to “prove” a defence in this context. The noble Lord, Lord Rosser, has previously raised a concern that the wording of the two provisions might be out of step, and that Clause 4 might place a greater burden on defendants to make out a reasonable excuse than is envisaged by Section 118. I have addressed this in previous debates and have written to him following our most recent debate in Committee. I hope that I have been able to reassure him that this is definitely not the case.
Section 118 provides that if a defendant,
“adduces evidence which is sufficient to raise an issue with respect to the matter”—
that is to say, the matter has to be proved under the wording of the defence—
“the court or jury shall assume that the defence is satisfied unless the prosecution proves beyond reasonable doubt that it is not”.
This, together with relevant case law, has the effect that if a defendant puts forward sufficient evidence to reasonably support a suggestion that he or she has a reasonable excuse, the burden of proof shifts to the prosecution to disprove that defence, which it must do to the normal criminal standard of “beyond reasonable doubt”. If the prosecution fails to do so, the jury must assume that the defence is made out.
Amendment 10 would insert this wording from Section 118 into Clause 4. The noble Lord has suggested that this would make the operation of Clause 4 clearer and would put beyond doubt what is required of a defendant to establish a reasonable excuse defence. I have every sympathy with the noble Lord’s desire for clarity. This is not the most straightforward of the Bill’s provisions, requiring as it does two different provisions in the 2000 Act to be read in conjunction, but I can assure him that there was a good reason for drafting it in this way. It is very simply that, as the noble Lord, Lord Anderson, said, Section 118 makes the same provision in relation to eight other provisions in the 2000 Act which include similar defences. Each of those defences points back to the same single place—Section 118—rather than including eight repetitions of the same wording in eight different places. This is a standard drafting practice where a common principle governs the operation of multiple provisions. It is considered to be the best way of providing clarity and consistency, and of not unnecessarily adding to the length and complexity of legislation.
In practice, the noble Lord’s amendment would have little or no impact on the operation of the reasonable excuse defence as it would simply duplicate the wording of Section 118, which already has effect. However, I must respectfully say that I am unable to support the amendment. As I have set out, the formulation used in the Bill as drafted, and in the 2000 Act, reflects normal drafting practice, and I do not see that there is sufficient reason to depart from this in relation to Clause 4. The courts have successfully operated Section 118 for 18 years in respect of the eight existing offences in the 2000 Act to which it also applies without anyone complaining that its effect is unclear or uncertain. There is clear case law and a settled and well-understood position.
“(3A) The cases in which a person has a reasonable excuse for the purposes of subsection (2) include (but are not limited to) those where—(a) the person enters, or remains in, a designated area involuntarily, or (b) the person enters, or remains in, a designated area for or in connection with one or more of the purposes mentioned in subsection (3B).(3B) The purposes are—(a) providing aid of a humanitarian nature;(b) satisfying an obligation to appear before a court or other body exercising judicial power;(c) carrying out work for the government of a country other than the United Kingdom (including service in or with the country’s armed forces);(d) carrying out work for the United Nations or an agency of the United Nations;(e) carrying out work as a journalist;(f) attending the funeral of a relative or visiting a relative who is terminally ill;(g) providing care for a relative who is unable to care for themselves without such assistance.(3C) But a person has a reasonable excuse for entering or remaining in a designated area by virtue of subsection (3A)(b) only if—(a) the person enters or remains in the area exclusively for or in connection with one or more of the purposes mentioned in subsection (3B), or(b) in a case where the person enters or remains in the area for or in connection with any other purpose or purposes (in addition to one or more of the purposes mentioned in subsection (3B)), the other purpose or purposes also provide a reasonable excuse for doing so.(3D) For the purposes of subsection (3B)—(a) the reference to the provision of aid of a humanitarian nature does not include the provision of aid in contravention of internationally recognised principles and standards applicable to the provision of humanitarian aid;(b) references to the carrying out of work do not include the carrying out of any act which constitutes an offence in a part of the United Kingdom or would do so if the act occurred in a part of the United Kingdom.”
Earl Howe
My Lords, the government amendments in this group will make a number of changes to Clause 4. Clause 4 provides a power for the Secretary of State to designate an area outside the UK which he may exercise if it is necessary, for the purpose of protecting members of the public from a risk of terrorism, to restrict UK nationals and residents from entering or remaining in that area. It will be a criminal offence for a UK national or resident to enter or remain in a designated area without a reasonable excuse.
Much of the debate on Clause 4 has, of course, focused on that reasonable excuse defence, both on its application in various scenarios where a person might have a legitimate reason to enter or remain in a designated area, and on the certainty which will be provided to such a person that they will not subsequently be prosecuted.
The points of principle here and the legal position are very similar to those which we have already debated on the reasonable excuse defence in relation to Clause 3. I will therefore not detain your Lordships by repeating myself, save to say that the Government are equally clear that, under Clause 4, individuals with a legitimate reason to enter a designated area of the kind we have been discussing will have a reasonable excuse.
However, I undertook at the conclusion of Committee to reflect on the concerns that had been raised that the existing approach might not provide adequate certainty and assurance. We have also engaged with representatives of the charitable sector, who have made points similar to those made in this House. Following this reflection, we have concluded that we should bring forward amendments to provide further assurance that those with a legitimate reason to enter a designated area will have a reasonable excuse. I trust that this will be welcome news to your Lordships.
Amendment 11 therefore introduces an indicative list of cases which may give rise to a reasonable excuse. Similarly to that which we have introduced to Clause 3 through Amendment 6, which we have just debated, it is not an exhaustive list, and it will be open to defendants to advance other categories of reasonable excuse. It will ultimately be up to the jury to determine whether a particular excuse is reasonable, on the basis of all the evidence in that case.
This will provide significantly greater assurance to legitimate travellers, but it will not preclude those who travel to designated areas for terrorist purposes under cover of, for example, journalism or charitable work from being prosecuted. Defendants will also not be able to rely on a reasonable excuse defence if they travel for a legitimate purpose and then engage in other activity which is not legitimate while within the designated area.
The categories of reasonable excuse provided by the amendment are: where the person enters or remains in the designated area involuntarily because, for example, they are detained; to carry out work as a journalist; to provide humanitarian aid; to attend the funeral of a relative or to visit a terminally ill relative; to provide care to a relative who is unable to care for themselves without such assistance; to satisfy an obligation to appear before a court; or to work for a foreign Government, the UN or an agency of the UN. This indicative list of reasonable excuses adds to the existing automatic exception for those who are working for or on behalf of the Crown. Where this list refers to a relative, Amendment 16 defines this as a spouse or civil partner, sibling, ancestor or lineal descendant.
A further area on which greater assurance has been sought is reviews of designations. As drafted, the Bill requires the Secretary of State to keep under review whether the condition for designating an area continues to be met, and to revoke the designation if he considers that it is no longer met. The Government have been clear that this will be a meaningful and ongoing review. I reiterate the point that in the kind of exceptional scenario in which this power is likely to be used, the Government will invariably pay very close attention to the circumstances on the ground, and will keep their response across every aspect of the system under continuous review and subject to recalibration as necessary.
Several noble Lords tabled amendments for Committee which would have tightened this further by introducing either a requirement for annual reviews of designations, as proposed by the noble Lord, Lord Anderson, or a sunsetting provision so that regulations designating an area would cease to have effect after three years, as suggested by the noble Lord, Lord Rosser. This latter approach would mirror the equivalent Australian legislation. I indicated in those debates that I considered an annual review to be unnecessary to ensure rigorous and effective review of designations, and that this would not serve the public interest or be an effective use of resources. I have reflected further and, with all respect to the noble Lord, Lord Anderson, I remain of that opinion.
However, I also indicated that I could see merit in the suggestion of a three-year backstop sunset period, with the option to make new regulations designating the same area if that is appropriate. I undertook to consider this ahead of Report. Following that consideration, I find myself persuaded that this would be a sensible and helpful addition to the Bill, and Amendment 18 therefore introduces such a provision. As a result, regulations designating an area will automatically cease to have effect and will fall away after three years. The amendment makes it clear that this is without prejudice to further regulations being made designating the same or a similar area. Any new regulations would of course then be subject to approval by Parliament. This will provide a powerful extra safeguard to ensure that the designation of an area cannot be indefinite, and that this power will be used to manage risk only in exceptional circumstances. While regulations remain in force, they will also be subject to the existing requirement that they be kept under review and that they be revoked sooner than after three years if the condition for designating the area is no longer met.
Amendments 20 and 21 implement recommendations made by the Delegated Powers and Regulatory Reform Committee of your Lordships’ House in their report on the Bill. Amendment 20 requires the Secretary of State, when laying regulations before Parliament designating an area, to issue a statement setting out the reasons why he considers that the legal test for designation is met in relation to that area. The Government have always been clear that we will provide an explanation to Parliament of why we seek to designate any area under this power, and we are happy to place a requirement to do this in the Bill.
Amendment 21 makes any regulations revoking a designation subject to the negative resolution procedure. Under the Bill as drafted, regulations that purely revoke an existing designation would not be subject to any parliamentary approval and would simply come into force immediately upon being laid. The Government took that approach on the basis that lifting the designation of an area, and therefore also the operation of the criminal offence in relation to entering it, would have no adverse impact on any person. The committee wisely identified that lifting a designation could in fact have an impact on those for whose protection the area was designated—that is to say, the public. On that basis the committee recommended that such regulations should actually be subject to negative resolution in both Houses. The Government are persuaded of the committee’s view on this matter and are happy to implement its recommendation. I am grateful to your Lordships’ Delegated Powers and Regulatory Reform Committee for its scrutiny of the Bill and for its assistance in improving it in these two respects.
I am also most grateful to noble Lords, and to the noble and learned Lord, Lord Judge, for their contributions to the debates on this important but sensitive new power and for their assistance in identifying the sensible improvements that the Government are bringing forward today in response to those debates. I hope your Lordships will be happy to support these government amendments.
There are a number of other amendments in this group, including amendments to the government amendments. I will wait to hear what noble Lords have to say about Amendments 12, 13, 14, 17 and 19 before responding. For now, I beg to move Amendment 11.
Amendment 12 (to Amendment 11)
Lord Paddick
My Lords, very briefly, I completely agree with my noble friend Lady Hamwee, who has addressed all the amendments in this group other than Amendment 15. I have added my name to Amendment 15 and made clear my reasons for supporting it during our debate on the second group of amendments. I do not wish to add further to my comments.
Earl Howe
My Lords, the noble Baroness, Lady Hamwee, has argued for the expansion of the Government’s list of indicative reasonable excuses to include peacekeeping and visiting a very seriously ill relative. I understood her not to have spoken to her Amendment 14, which proposed that we include in Clause 4 a power to further add to the list of reasonable excuses by regulations—I hope I was right in understanding that.
The first point I make is to stress again that this is an indicative and not an exhaustive list. I am not suggesting that the amendments from the noble Baroness are without merit, but, in a phrase, we need to draw the line somewhere. I firmly believe that Amendment 11 draws it in the right place. In this regard, we have taken into account the Australian precedent. Trying to put more and more situations beyond doubt—the argument put forward by the noble Lord, Lord Hylton—is simply unnecessary in this context. As I have argued before, we are consciously not creating an exhaustive list of reasonable excuses; it would be quite wrong to try. Juries will be able to make up their own minds on the reasonableness of particular excuses in the light of the circumstances of the case.
I entirely accept the importance of peacebuilding activity, and I am sure noble Lords would agree with me that it is vital that such activity continues. However, as I have explained, the government amendment does not preclude a person advancing this or any other category of reasonable excuse. I am of the view that legitimate peacebuilding activity could very well be a reasonable excuse. However, I must say again that it will ultimately be up to the jury to determine whether a particular excuse is reasonable on the basis of all the evidence.
Much the same arguments apply to Amendment 13, which would add visiting a seriously ill relative to the list of reasonable excuses. I am not sure how fruitful it would be to get into a debate about the difference between being “seriously ill” and “terminally ill”. Again, the line has to be drawn somewhere. Given that the Foreign Office would inevitably advise against any travel to a designated area, it is right that we set the bar at a high level. But I say again that it would be open to any person to advance as a reasonable excuse the fact that he or she was visiting a seriously ill relative.
Amendment 17 seeks to place on the Home Secretary a duty to lay before Parliament an annual report on the outcome of the review of a designation. This amendment misunderstands the nature of the duty on the Home Secretary to keep a designation under review. The requirement does not imply a set piece review with a beginning and an end, culminating in a report which can then be published.
Rather, the ongoing duty to keep a designation under review will ensure that, as the situation on the ground changes, the Government can react and make a judgment, as and when required, as to whether to alter any designation to reflect a change in the threat. However, I reassure the noble Baroness that, should the Government need to amend a designation, that will require a new regulation to be made, which in turn, by virtue of Amendment 20, would require the Secretary of State to issue a statement setting out the reasons why he considers that the legal test for designation is met.
The noble Baroness referred to international humanitarian standards. As she said, there are various commonly recognised international humanitarian standards. The point to appreciate is that the government amendment provides flexibility and future-proofs against developments in this area. She may know, for example, that the UN Office for the Coordination of Humanitarian Affairs provides guidance on principles and standards relating to humanity, neutrality, impartiality and independence. I say to the noble Earl, Lord Sandwich, that the concerns he expressed are satisfactorily addressed by government Amendment 11 as well as by the explanations that I have already given for the provisions of Clause 4 in Committee.
Amendment 15 in the name of the noble Lord, Lord Rosser, is in many ways similar to government Amendment 11. There is, however, a key difference, as he carefully explained. This is not an indicative list of reasonable excuses, but an exhaustive list of exclusions from the offence. We have already debated the difference between these two approaches when we considered Amendment 3 in the name of the noble Lord, Lord Paddick, in an earlier group, but it may be helpful to remind ourselves of the issues in play.
I reiterate that under either approach a person returning to the UK from a designated area abroad would not have immunity from investigation and possible prosecution. The police would still need to investigate to determine whether, under one approach, an offence had been committed or, under the other approach, whether the person has a reasonable excuse such that the investigation can be discontinued. It is worth noting that the police have been extremely clear for some time—since well before this new power was introduced—that any person returning from Syria who has travelled there for any reason can expect to be investigated to establish what risk, if any, they may pose. That is simply common sense given the level of risk associated with such areas.
That would likely also be the approach in any future scenario analogous to the Syrian example in which an area might be designated under Clause 4, whether or not an area is in fact designated. While I appreciate that the intention of the noble Lord’s amendment is to provide greater comfort and assurance to legitimate travellers so that humanitarian aid workers, for example, would not have the prospect of police investigation hanging over them, that would not in fact be the result. The only circumstances in which it could be achieved would be if we were to go further still and provide for any person who travels to a designated area simply to declare that they did so for a specified legitimate purpose, thus unilaterally providing themselves with immunity from any investigation or prosecution. However, that would be wide open to abuse by those who travel for terrorist purposes and would render the new power in the offence entirely unusable.
That leads on to my second point. I have explained that the noble Lord’s amendment would make little difference from the perspective of a potential defendant, and I appreciate that that may beg the question why we should not then accept it. That is simply because the Government’s preferred approach in providing for a reasonable excuse defence fits better with the grain of the Terrorism Act 2000. That approach has been in place for 18 years in Section 58 of the Terrorism Act 2000, which Clause 3 of the Bill amends as well as other provisions in the 2000 Act. As I previously said on the noble Lord’s closely related suggestions for changes to the burden of proof for these offences, which we have already debated today, that approach is well understood by the police, prosecutors and the courts, and clear case law on it is provided by the then Appellate Committee of this House, no less. It has not resulted in judicial concerns, inappropriate prosecutions, upheld appeals or any credible complaints that it has been unfair or inappropriate in its operation. I therefore reiterate that we are not approaching these matters from a neutral starting position. Rather, if we were to adopt the noble Lord’s amendment, we would be choosing to depart from the settled, long-standing position in relation to the Terrorism Act 2000, and I am simply not persuaded that there is any need or good reason to do so.
Furthermore, I am concerned that in unsettling that existing position we could create more uncertainty for defendants and judges in relation to Clause 4, not less, and we could also call into question the currently settled approach that the courts take to Section 58 of the 2000 Act as well as other provisions for similar offences, creating instability and uncertainty in our ability to prosecute serious terrorists. Those strike me as quite undesirable outcomes and risks that we should not run.
The noble Lord, Lord Rosser, asked me what would count as proof that an aid worker was employed by a legitimate NGO. The police have been clear that they will investigate any person returning from Syria to establish what risk they may pose. That would likely be the case in relation to any area designated under Clause 4, including investigating whether an offence has been committed under Clause 4. It will be an operational decision for the police as to how they would conduct that investigation and what proof they would seek. It is not possible for me to set out those considerations in advance.
Finally, Amendment 19, in the name of the noble Lord, Lord Anderson, would provide for the sunsetting of any regulations after two years rather than three. He seeks to split the difference between the one year he advocated in Committee and the three years proposed by the noble Lord, Lord Rosser. Again, this comes down to judgment. There is clearly no absolute right or wrong in this case; it is just that, on balance, the Government consider that three years is the right timeframe. Again, I pray in aid the Australian criminal code and, as I have already indicated, if the situation changes after six months, a year or two years, the Government would inevitably want to review the regulations well before the three-year period was up. The Government agree with the amendment put forward by the noble Lord, Lord Rosser, in Committee that three years is the appropriate period and I hope that other noble Lords are similarly persuaded. I realise that he has shifted his position since Committee, but I hope that on reflection he will feel content to revert to his original view.
I invite the House to agree with the government amendments in this group and I hope that I have been able to persuade the noble Lord, Lord Rosser, not to move his Amendment 15. If he is minded to do so, I invite the House to reject it.