Intelligence and Security Committee Annual Report for 2010-11

Lord Foulkes of Cumnock Excerpts

Monday 12th December 2011 Grand Committee

[The Marquess of Lothian]

My Lords, I understand that these proceedings may be interrupted. Having served for many years in the other place, I am quite used to being interrupted and to coming back to where I was at the start. I think this is perhaps the best way to get our business done.

This is the first opportunity I have had to speak in this House on the work of the Intelligence and Security Committee, on which, both in the other place and in this House, I have had the great privilege to sit since January 2006. I am not the longest serving member of it—George Howarth remains the longest serving member—but I am one of the longest serving members.

I note that when the previous report was considered by your Lordships on 30 March 2010, a number of representations, including one from the noble Lord, Lord Foulkes of Cumnock, were made for an increase in the number of representatives from this House on the committee. At that time, there was only one, the noble Lord, Lord Foulkes of Cumnock—a much valued colleague on the committee—who on that occasion moved consideration of the report, as I am doing today. I am delighted that those representations were heeded and that there are now two Members of this House on the committee. I am even more delighted that the other, who has not yet joined us—but I am sure he will shortly—is my noble colleague, the noble Lord, Lord Butler, who represents the Cross Benches and brings with him the broad knowledge and unique insight that come from not only having been Cabinet Secretary but having conducted the 2004 review of intelligence on weapons of mass destruction.

[Lord Foulkes of Cumnock]

I was going to raise this point in my speech, but it is perhaps better raised now. The noble Marquess is right, we argued on both sides of the House that the number should increase. He is also right that the noble Lord, Lord Butler, will bring a unique and interesting perspective to the work of the Intelligence and Security Committee. However, is it not strange, ridiculous and unacceptable that there is no Member of the Opposition in the House of Lords on the committee? It is quite ridiculous. The total number of members of the committee, including those from the House of Commons, is nine, of which only three are Members of the Official Opposition. This is a scrutiny committee which challenges the work of the intelligence agencies from time to time, and to have such a poor representation of Labour members—and not one from the House of Lords—is quite unacceptable. That point was made by the Opposition Chief Whip of this House at the time and, unfortunately, was not accepted by No. 10 Downing Street.

[The Marquess of Lothian]

I am sure that what the noble Lord, Lord Foulkes, has said will be heard more widely. I would answer him in this way: as he will see from the report, we are at the moment seeking to have the nature of the committee reformed in a fundamental way. That process is being undertaken at the moment through the Green Paper and I shall come on to it later in my remarks. However, it would be premature to get involved on this before the process has at least got under way and the kind of points made by the noble Lord can be considered.

Even though he is not in his place, I must say that it is a great pleasure for me—as I hope it is for other noble Lords—to have the noble Lord, Lord Butler, on the committee. It means that I can speak more briefly in this debate than otherwise might have been the case because I am confident that he will, with far greater skill, cover all the areas which I fail to cover and may indeed correct me on those areas where I get it wrong.

This is the first annual report of this committee produced under the chairmanship of Sir Malcolm Rifkind, who I am sure all other members of the committee would also like to thank for his excellent leadership over the past year. I should also like to thank the members of the committee from the other place.

As the noble Lord, Lord Foulkes, knows, the ISC is unique in many ways, but perhaps the one that strikes you most when you first join it is the level of consensus on the committee and the absence of party politics from our discussions. That is an important part of the nature of the committee and makes serving on it an even greater pleasure. The abiding ethos of the committee, as noble Lords here today who have served on it in the past know, is one of trust—trust between members, of course, but also, and more importantly, between the committee and those who it is the committee’s responsibility to oversee. We work in an environment where secrecy is often required by the national interest and where, if oversight and scrutiny are to be comprehensive and effective, trust in that secrecy is of the essence.

The same stricture of secrecy also means that the full report, which we are required to submit to the Prime Minister, has to be redacted in certain areas before it is more widely published, to protect that same national interest. As noble Lords will know, these redactions appear as asterisks in the report before your Lordships and have in the past—I must plead guilty of this myself in a previous political incarnation—been the cause of not just complaint but often ridicule. However, in truth, redactions are inevitable and necessary if the committee is to produce a comprehensive report for the Prime Minister. We have conscientiously striven this year to keep redactions to the minimum consistent with the production of that comprehensive report.

This year we have also preceded our report with a section on key themes, which we hope will provide a more structured introduction to the rest of the report by indicating those areas of particular interest to the committee and explaining why they were of such interest. In the past, I always found that these reports tended to be very piecemeal and quite difficult to follow. We felt that it would be for the benefit not just of this House and the other place but of the wider public as well if we produced an introduction of themes that at least gave some shape to the rest of the committee.

I am delighted to see that my colleague, the noble Lord, Lord Butler, has now joined us. At the risk of repeating myself, I said earlier that it is a pleasure to have him on the committee. It makes my speech today shorter, and I am sure he will fill in the gaps and correct me where I have got things wrong.

In general, noble Lords will see from our report that it has been a very busy year for the committee. Indeed, we made a record number of conclusions and recommendations. The report covers several important issues. I do not want to take too much time today; I just want to highlight a few of them.

The first relates to funding for the single intelligence account. In the current economic climate, the committee recognised that the flat cash settlement that the intelligence agencies received in the spending review was fair. This was reflected in what the agencies themselves told us. They will, in broad terms, be able to maintain their key coverage and capabilities. Nevertheless, the committee has recommended that the settlement must be kept under review. The Government must be willing to revisit the funding available to the agencies if there is a significant change in the threat. We cannot prioritise budgets in advance if the security of the country is at stake. The Government’s response to the committee report responded to this and mentioned agility, flexibility and reprioritisation—wonderful words, but I am not certain what exactly they mean in practical terms. It did not mention the possibility of an adjustment in the settlement should that be necessary. In the light of events that are coming over the next 12 months and beyond, we believe that this is important. I would therefore welcome the Minister’s confirmation that, should the threat change significantly—that is the condition—there is scope to revisit the single intelligence account.

I should also like to draw the Committee’s attention to the recommendations on cybersecurity. The threats that exist in cyberspace are familiar ones: theft, fraud, exploitation of the vulnerable and espionage, to name just a few. However, the internet provides criminals and spies with a new avenue of activity, where these deeds can increasingly be carried out with greater anonymity behind a cloak of binary digits and encryption. It is a rapidly growing threat to our security and prosperity, and the ISC in previous reports had urged the Government to increase the funding and priority of this work. Therefore, we welcome the Government’s decision to list cybersecurity as a top-tier threat in their national security strategy, and we welcome the new funding that has been made available to fund cyber-related work. Half of this new money will go to the intelligence agencies, which is very much in our view to be welcomed. However, there is still a great deal of work to be done in this area.

While the committee has welcomed the increased priority being given to cyber, the downside has been the proliferation of new teams and units working in this area. There are at least 18 departments, units and agencies involved in this work in some way, and the committee remains concerned at the risk of duplication and lack of co-ordination in this essential field.

Many other important matters are mentioned in our annual report, including the very welcome establishment of the National Security Council itself, matters relating to detainees and rendition, counterterrorism work and Olympic security, to name but a few. I do not propose to cover them now, as the report sets out our views clearly, and no doubt your Lordships will wish to raise some of them during the course of the afternoon, as I am confident will my colleague, the noble Lord, Lord Butler.

I want to turn now to the wider issues that we mention in the report. One that has exercised the committee this year and which we touch on in our annual report is the future of the committee itself. The ISC has been in existence under statute for some 17 years now. Since it was established under the 1994 Act, the threats that we face have changed and, in response, the intelligence community has had to change as well. The work of the committee has evolved to take account of this. However, public expectation of transparency and openness has increased significantly during this time, and the committee must ensure that it has the powers and the remit necessary to provide reassurance to the public and to Parliament. We therefore made it a priority in the first year of this Parliament to review the committee’s role, structure, remit and powers. We concluded that the current arrangements are now significantly out of date. The committee therefore produced radical proposals for change designed to increase accountability, transparency and capacity for oversight of the intelligence community as a whole. The timing of our review was fortuitous; the Government were in the process of producing a Green Paper, now published, on the protection of intelligence material in the courts and were considering how, if they were to recommend changes in the power of courts, oversight of the agencies should be strengthened to compensate for that. The committee therefore put its proposals for change to the Prime Minister.

Noble Lords will have seen that the Government’s Justice and Security Green Paper for the most part reflects the committee’s recommendations. Under the proposals, the Intelligence and Security Committee will become a committee of Parliament, something that it has not been in the past; it has been a statutory committee of parliamentarians under the authority of the Prime Minister. We are seeking for it to become a committee of Parliament, with the necessary safeguards, reporting to Parliament and to the Prime Minister. The remit of the committee will reflect the fact that the ISC has for some years taken evidence from and made recommendations regarding the wider intelligence community and not just SIS, GCHQ and the security services, which were its statutory responsibility. It will also reflect the fact that the committee is not limited to examining just policy, administration and finances, which were also part of its statutory remit, but encompasses all the work of the agencies. Further, the committee will have the power to require information to be provided.

However, there are two issues on which the Green Paper does not entirely reflect the Government’s proposals, which I wish to raise now with the Minister. The first relates to oversight of operational activity. The work of the agencies cannot be understood fully, let alone scrutinised effectively, without regard to operational matters. The ISC has for many years had access to operational material and has reported on operations publicly and in confidence to the Prime Minister. That includes reports as far back as the 1999 inquiries into Sierra Leone and the Mitrokhin archive, when the committee was still relatively new, through to more recent examples, such as the 2007 inquiries into the 7/7 bombings and the 2009 inquiry into the Binyam Mohamed case. Some of these investigations were at the express request of the then Prime Minister, and others were instigated by the committee itself. They were all specific operations that gave rise to public concern and significant national interest. They were all inquiries in which the committee had access to specific, detailed operational material.

The committee considers that the arrangements that have taken place in practice should now be formalised and that this work should be placed on a statutory footing. However, the Green Paper is less than forthcoming in this regard. It states only that,

“the Government is giving careful consideration to the ISC’s proposal to extend its remit to include operational aspects of the work of the Agencies”.

I underline once again that this is not something new, but something that has been happening over the past few years. Access to operational information is fundamental to the work of the committee. The Government must recognise that to deny the committee access to operational material would be a major step backwards from the current arrangements at a time when the Government say that they are seeking to strengthen oversight. I would welcome my noble friend’s assurance that he and the Government will look forward in this respect and not backwards.

The second issue on which I would welcome clarification from my noble friend is the committee’s resources. Currently, it has limited personnel resources. However, the changes that are envisaged to its powers and remit will increase that requirement and will involve new ways of working. The key difference will be as a result of the committee’s new power to require information to be provided. At the moment, it is reliant on the agencies themselves considering and summarising their information.

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[Lord Foulkes of Cumnock]

My Lords, let me first say how much I welcome this debate, with two reservations—it would not be from me if there were not a couple of reservations. The first is that we are having the debate in Grand Committee and not on the Floor of the House. Secondly, the debate follows two Treasury instruments, which suggests that the House does not give enough importance to the work of the Intelligence and Security Committee and the agencies. I hope that, in the future, the usual channels will think of the possibility of holding the debate on the Floor of the House so that a larger number of people may not only participate but hear about the work, so that it can get to a wider audience.

However, I congratulate my noble friend the Marquess of Lothian. He is my friend because in the other place he and I were paired for many years—we managed to find opportunities to travel the world together—and then we were members of the Intelligence and Security Committee, which I served on for four years. I know how diligently he serves on it and how impressive he is as a questioner on that committee. He has shown by his introduction today the depth of his knowledge and understanding of the committee’s work.

I commend the work done by the noble Lord, Lord Butler, who brings a slightly different perspective to the committee. Now that he is here, I repeat what I said earlier with absolutely no disrespect whatever to him. He is clearly a very powerful and important Member of this House and I know, from the accounts of members of the committee, that he does an extremely good job on it. It is very unfortunate that this House is not better represented on a committee such as this. I argued this, as did others, in the debate on 30 March last year. We succeeded in doubling the representation but it is slightly odd that there is not a Member of the Official Opposition from this House serving on the committee. It was unfortunate that No. 10 saw fit not to take account of the representations made very forcefully by our Chief Whip. It was a pity that that happened.

On 30 March last year, we had a very interesting debate, in which the noble Lord, Lord King, participated. I am sorry he is not here today; he participated very effectively, as those Members who were here will recall—it is included at column GC 544 of the Hansard of that day. He argued very strongly that the credibility of the committee would be much greater if it had an opposition member as chairman. Obviously, that did not carry much weight with the new Government when they took over. Again, I mean no disrespect to Sir Malcolm Rifkind, whom I have known for as long as I have known the noble Marquess, Lord Lothian, and for whom I have the greatest respect. I think that the noble Lord, Lord King, had a very good argument there that, on a committee such as this committee, it helps to increase its credibility if an opposition member chairs it.

Those are my general comments, but I also want to comment on the reform of the committee. We discussed that when I was a member of the committee, and I hope I am not giving away too many secrets—on that committee, we learnt the importance of not giving away secrets. As far as the committee was concerned, I strongly supported the change in the nature of the committee, and I am sure that the noble Marquess will recall that. Indeed, it was the then Prime Minister Gordon Brown who suggested that the committee might become more open, have public sessions and look towards becoming a parliamentary committee of both Houses. He urged movement in that direction. I supported that, but there were members of the committee who did not agree. I am very glad to hear that the committee is now, as I understand it, unanimously in favour of moving towards reform of the structure of the committee. I hope that the Minister will give an indication in his contribution as to whether that has the support of the Government and whether we will see the necessary legislation in the forthcoming Session of Parliament. I think it would be right to move in that direction. I agree with the committee. It would be more transparent and accountable if that took place. There are problems in relation to certain parts of the evidence being dealt with in public, and meetings would have to be held in private, but the more meetings that can be held in public and the more that Parliament is responsible for the nomination of the members of the committee, the better.

The items that I want to raise that arise from the report relate not to the specifics that the noble Marquess raised but to wider questions of national security policy and, specifically, to the role and the nature of the national adviser. I am now a member of the Joint Committee of both Houses of Parliament on the national security strategy, which is under the chairmanship of my right honourable friend Margaret Beckett. We recently had evidence from the current national security adviser Sir Peter Ricketts, and I was disappointed in it in a number of ways. Page 39 of the Intelligence and Security Committee report records that the national security adviser has three main roles and that the second is,

“to act as personal adviser to the Prime Minister on foreign and security policy”.

I think that is a very important point. When Sir Peter Ricketts appeared before us—I am quoting from the uncorrected evidence—he said:

“The second role is effectively as a foreign policy adviser to the Prime Minister”.

He did not say “foreign and security policy”. I think that, with his Foreign Office background, Sir Peter—who is on his way back to the Foreign Office to become our ambassador in Paris—unfortunately sees himself very much as a Foreign Office person. There is a problem in that kind of role of national security adviser where the two roles have been combined. Sir Peter sees it very much in foreign policy terms. With no disrespect to the Minister, Foreign Office officials sometimes have a particular set of blinkers that means that they do not look at the wider context.

There was also a very strange exchange between the noble Baroness, Lady Ramsay of Cartvale, and Sir Peter Ricketts. I will quote from the transcript. The noble Baroness, Lady Ramsay, as well as having served with great distinction on the ISC, has a better working knowledge of the agencies than most of us here. She asked:

“Is it not constitutionally slightly odd that you are writing the confidential annual reports of the heads of intelligence agencies?”.

He told us that he is in effect the line manager of the heads of the intelligence agencies. When I served on the Intelligence and Security Committee, that never occurred to me. It occurred to me that C and the director-general and the head of GCHQ were working independently and with their own, wider authority, reporting directly to Ministers and particularly to the Prime Minister, but Sir Peter Rickets said that,

“agency heads are also Permanent Secretaries of departments in the same way that I was Permanent Secretary of the Foreign Office”.

I do not know about the noble Marquess, or the Minister, or other Members of this Grand Committee, but I never saw them as that when I was on the committee. I wonder whether something has subtly changed over the last couple of years in terms of the reporting arrangements for the heads of the intelligence agencies. That would be unfortunate.

Another thing that came up in our evidence was that Sir Peter Ricketts has the responsibility for co-ordinating the work of agencies throughout government and for this whole aspect of the work of government. When we asked who had replaced the noble Baroness, Lady Neville-Jones, in particular terms—and previously the noble Lord, Lord West, who had a wider remit than just in the Home Office, although Mr Brokenshire deals with it in the Home Office—we were told that each department on the National Security Council has a Minister responsible. But it seems that no one at ministerial level, apart from the Prime Minister himself, is co-ordinating national security right across government—across all aspects, whether it be energy supply, defence or a whole range of other responsibilities. That seems unfortunate. The interesting thing was that Sir Peter thought that he could co-ordinate it as an official but somehow it was impossible for a Minister to take on that role as well.

My penultimate point is that I also raised with Sir Peter Ricketts on that occasion the question about Scotland, and the potential threats to national security arising from the demands of the present Scottish Government for independence. The astonishing thing was that no work is being done, according to Sir Peter Ricketts, to look at the security implications of the increasing demand for Scottish independence. I hope that the Minister will either confirm or deny this. I raised the question, and was supported by a Conservative Member of Parliament on the committee, about the division of oil reserves if there was a dispute on that, or if the policy of the Scottish Government was different from the United Kingdom on the deployment of Trident—as it is—and on membership of NATO. This raises some implications that ought to be thought about.

Those are the only substantive points that I want to raise today. I want to conclude as the noble Marquess concluded, with a word of thanks not just to the members of the intelligence and security services—MI6 or SIS; MI5 or the Security Service; and GCHQ—who do, as the noble Marquess said, a fantastic job. But as I am sure the noble Marquess would concur, we should say a word of thanks to the staff of the committee, who came under sustained pressure during my time on the committee and weathered it extremely well. One advantage of moving towards a different structure for the committee, where the responsibility is not to the Cabinet Office but to Parliament, is that it would protect them in a way that they were not protected during a very difficult situation in the very important and excellent work that they do to service the committee.

--- Later in debate ---

[Lord Butler of Brockwell]

My Lords, it is an honour to represent your Lordships’ House on the Intelligence and Security Committee, not least because I share the view which has been expressed that the committee’s work is very important. It is also a pleasure to serve on such a distinguished and experienced committee, which is very ably chaired by Sir Malcolm Rifkind, with his experience as a former Foreign Secretary and Defence Secretary, and is supported by a first-rate secretariat. I was glad to hear the noble Lord, Lord Foulkes, refer to that. The committee also contains others with ministerial and Front-Bench experience in the Home Office and the Northern Ireland Office, including, notably, the noble Marquess, Lord Lothian, with whom it is a special pleasure for me to share the representation of your Lordships’ House.

As the noble Lord, Lord Foulkes, has referred to the chairmanship of the committee, I see the argument that such committees should have a chairman drawn from an opposition party. However, I am absolutely confident that I speak for the whole committee when I say that when we have the good fortune to have a chairman of the calibre, energy and experience of Sir Malcolm Rifkind, that trumps every other argument.

[Lord Foulkes of Cumnock]

Perhaps I may make two things clear. First, I was repeating the argument that the noble Lord, Lord King of Bridgwater, made last year; it was not I but he who was arguing for an opposition chairman. Secondly, having known Malcolm Rifkind since we served together on Edinburgh City Council, I wholly endorse what the noble Lord, Lord Butler, has said.

[Lord Butler of Brockwell]

My Lords, the importance of the work of the committee has grown because of the greatly increased salience that the intelligence services have gained in our national life. It is a long time—many decades—since their activities were directed only against foreign antagonists of this country. Sadly, the growth of terrorism—first Irish and then other forms of criminality and terrorism, not only Islamic—has meant that the activities of the intelligence services have had also to involve citizens of our own country. It is therefore right that the agencies should no longer operate wholly in the shadows but that legislation should have been passed to put them on a statutory basis, to regulate them and to hold them accountable to Parliament.

At the same time, much of their activity has to remain secret. On that secrecy their effectiveness and the trust and co-operation of allied countries and those who would help them depends. We have to combine accountability with the protection of legitimate secrecy, and that is where a committee of parliamentarians has an important role to play.

Two other circumstances have affected the role of the intelligence agencies in today’s world. One—and this point has not been made this afternoon—is that their work has become much more international. Terrorism, espionage and criminality no longer respect national boundaries, if they ever did. This means not only that we have to work much more closely with allies and other countries with shared interests, but that the agencies within our own country—both outward-looking and inward-looking—have to work much more closely together. The committee has seen that development and it welcomes and encourages it.

The second development is that the advance of technology means that the methods and instruments of intrusion into the lives of individuals and institutions have greatly expanded. The noble Marquess, Lord Lothian, and the noble Lord, Lord Alderdice, rightly referred to cybercrime and the threat that it presents to public and private institutions in our country. Other examples are the extraordinary development of satellite imagery and the more mundane but equally intrusive proliferation of close-circuit television cameras, through which those pursuing their legitimate business around the streets of London may these days be recorded several hundred times in a single day. Quite rightly, the Protection of Freedoms Bill before your Lordships’ House provides for regulation of the uses to which such recordings can be put.

I mention these developments because it must be the responsibility of those who supervise the agencies on behalf of Parliament, within the ring of secrecy, to ensure not only that the agencies are efficient and effective in their vital work, but that they use the instruments of intelligence-collection available to them both proportionately and responsibly. I want to refer to a point made by the noble Lord, Lord Alderdice, picking up on the report, about the remuneration and character of those who work within the agencies. On the character of those people I think that I can reassure him. When one has the privilege of meeting staff of the agencies, one can be certain that it never has been the case that they are conventional, like any other civil servants. There are a lot of unconventional personalities.

Two other things hold them to the agencies—in addition to remuneration, which is very important. One is the importance with which they regard their work, which is a very important factor in morale, and the other is the excitement, originality and opportunities for enterprise within the law. They are the sort of people who can be relied on to operate in that way.

I was Cabinet Secretary when the legislation establishing the Intelligence and Security Committee was passed in 1994. I well remember the hesitation and anxiety with which the Government and agencies regarded the admission of parliamentarians into the ring of secrecy at that time—hesitation and anxiety which I confess I wholly shared. The committee has come a very long way since then in building the confidence of successive Governments and the intelligence community. The fact that it has done so has been due to the responsibility and wisdom shown by successive members of the committee, and I pay tribute to them. Over the past 17 years, there really has not been a major incident to damage that confidence, and that is essential to the work of the committee. The committee needs to be prepared to be a frank critic of the intelligence community when criticism is justified, but also—as was said earlier—its champion when external criticism and antagonism from those who know little of the agencies’ work is unjustified.

The noble Marquess, Lord Lothian, made the point that, as the confidence of the intelligence community and the responsibility and discretion of successive members of the intelligence and security community have grown, the committee’s work has extended well beyond the restrictions in the original legislation. This has benefits for Parliament and the intelligence community itself. The committee’s surveillance is no longer restricted in practice to the administration, policy and expenditure of the Security Service, SIS and GCHQ, the terms in which the original legislation was expressed. It has extended more generally to the work of the intelligence community as a whole, including—retrospectively—specific operations. This has been of general benefit.

However, if the committee is to achieve its full value, it needs to command the confidence not only of the Government and the intelligence community but of Parliament and the public generally. What has happened de facto therefore now needs to be recognised in legislative changes while retaining the necessary safeguards. The committee should now become a parliamentary committee instead of a government-appointed committee of parliamentarians. The wider extent of its activities should be explicitly provided for. Picking up the point that the noble Lord, Lord Foulkes, made, this would increase the independence of the secretariat of the committee who would then become servants of Parliament and not simply members of the Executive. I agree that that would be valuable. The committee should be able to reassure the public that it can require information from the intelligence community and not just request it—require it subject to the veto of a Secretary of State, without being at the mercy of the agencies in respect of the information they can obtain. These are changes that the committee has proposed; in fact, successive committees have proposed them. It is very welcome that the Government have endorsed them in their Justice and Security Green Paper.

As the noble Marquess, Lord Lothian, said, the Government have so far reserved their position on the extent to which the committee should oversee the operational activity of the agencies. Like the noble Marquess, I urge the Government to have confidence about this. I make one point in particular. The committee has already shown itself to be competent in examining specific episodes, often at the Government’s request. However, the public are much more naturally concerned with the operational activities of the agencies—such as their part in the treatment of terrorist suspects or the events leading up to 7/7—than in the agencies’ financing and administration. If the committee is to command the public’s confidence in holding the intelligence community to account, it must reassure them that the agencies are being properly supervised by Parliament. It is essential that the Intelligence and Security Committee be able to play a role in that, as indeed it already has done. It is not as though we want to look at such operations currently; we will always look at them retrospectively. Nor do we want to go as far as the US congressional committees, which are required by legislation to be informed of the agencies’ current operations. Does the Lord Chairman think I am going on too long?

International Democracy Day

Lord Foulkes of Cumnock Excerpts

Wednesday 14th September 2011 Lords Chamber

[Lord Howell of Guildford]

Yes, of course I agree with my noble friend. There is great wisdom in what he says. Democratic values need to be constantly reasserted. Democracy lies in the responsibility of each individual. I think that it was Edmund Burke who said that society only works if there is a policeman within each of us. So it is with democracy. If democratic ideas are implanted in each generation, there will be democracy. It is about a lot more than votes and party politics.

[Lord Foulkes of Cumnock]

My Lords, I apologise to the Minister for implying in a previous intervention that he was wrong in saying that the grant to the Westminster Foundation for Democracy had increased. In fact, depending on which start date one takes, he and I were both right as to whether it had increased or decreased.

[A noble Lord]

Is that an apology?

[Lord Foulkes of Cumnock]

That is my kind of apology. However, in view of the greater demand and the plans that the Westminster Foundation for Democracy has, particularly in relation to the Middle East and north Africa, will he and his colleagues in the Foreign Office and the Department for International Development give sympathetic consideration to increasing the grant for the coming years?

[Lord Howell of Guildford]

I am in an extremely generous mood and I want to say to the noble Lord straight away that he was indeed half right, just as I was. The facts are that the budget for the Westminster Foundation for Democracy was cut last year—and unfortunately the year before, which I think that must have been under another Government; I am not sure. But this year there was an increase of 3 per cent. We support this very strongly indeed. I must tell the noble Lord that the level for next year has not yet been set, but his enthusiasm for it has been noted in the work we do in building democracy and supporting this organisation.

European Union Bill

Lord Foulkes of Cumnock Excerpts

Tuesday 26th April 2011 Lords Chamber

[Lord Waddington]

My Lords, I was wondering when the Statement would be made, hence my hesitation. I hope that I will be forgiven for making a few general remarks on this my first speech in Committee. It is very important that people should be clear about the context in which almost all the amendments are brought forward. We know perfectly well the origins of the Bill, which of course lie in the coalition agreement, but it is important to be clear where the opponents come from. The supporters of these amendments, and many others, seem to say that as there is no issue of lack of trust, there is no harm in blunting the instrument devised by the Government to restore trust. That is what it is all about. It is, therefore, a very good idea to allow a Minister to try to avoid a referendum in as many cases as possible by saying that the matters are “not significant”. They, like almost all opponents of the Bill, seem to think that any dislike of the EU is due not to any failings at all on the part of the EU, but because, as my noble friend Lord Deben said, a week or two ago,

“a large number of people spend a great deal of time misleading as many people as possible”—[Official Report, 5/4/11; col. 1637.]

You cannot talk more nonsense than that.

Surely it would be very surprising if some people were not annoyed at some of the facts, not the myths about the EU, and the truths, not the falsehoods. It would be surprising if there was not in some quarters a feeling of disillusionment and dismay. It would be odd if there was dancing in the streets to celebrate the EU budget and if people were congratulating the EU on improving the lifestyle of Hungarian dogs and securing first-class travel for MEPs. It is nonsense to say that there is no dissatisfaction; there clearly is. I note that my noble friend Lord Wallace said that when he went to Yorkshire recently he got an earful. When people hear of some of the goings-on in Brussels they get pretty cross. They are cross, for instance, about the enormous salary paid to the new President of the European Council, which is more than the salary paid to the President of the United States, and wonder what on earth that is all about.

[Lord Foulkes of Cumnock]

Has the noble Lord noticed that in the past year there has been some dissent and public concern about salaries and expenses in Westminster, both in the other place and here? That does not mean to say that Westminster does not have an important function to perform, just as the European Union does.

[Lord Waddington]

The noble Lord is perfectly entitled to pick on what I said about salaries but, of course, it goes very much further than that. I could quote umpteen examples of things that have caused enormous annoyance. There is also enormous annoyance at the salary paid to the new EU Foreign Minister, and goodness knows how much will be paid for the European External Action Service. It is worth remembering at this stage where we are. Mr Blair was not going to have an EU Foreign Minister at any cost and was totally opposed to an external action service, but of course at the end he gave way, rolled over and agreed to it.

Of course, both posts were created by the constitution/Lisbon. I venture to suggest that if the people had had a say, not about the constitution or Lisbon but in the matter of either of those posts, they would have said, “Certainly not. Why should we pay for pointless EU aggrandisement?”. There have been some terrible betrayals by the Government of this country. Take, for instance, the surrender by Mr Blair of a large part of our hard-won rebate. It was supposed to be for reform of the agricultural policy, but no reform has taken place. There were all the carryings-on over the constitution/Lisbon. Some insist that there was enough difference between the two to justify Mr Blair ditching his promise of a referendum, but surely there is one thing on which we can all agree. With all the parties promising a referendum in 2005, and with the main changes proposed in the constitution reappearing in Lisbon, it was not at all strange that a lot of people felt that they were entitled to have a say in what was afoot, but they were told to mind their own business. They did: they went off in large numbers to vote for UKIP.

--- Later in debate ---

[Lord Richard]

My Lords, we have had a brisk debate so far, to put it mildly. I want to try to meet an argument that has been put today by two noble Lords opposite about the question of balance. It says that the Bill basically provides a sensible balance between the position that the European Union is not the most popular institution with the great British electorate and what should be done about it. The question of balance is being raised.

Let us just analyse this for two seconds. It applies to Clauses 3 and 4, to Clause 6 and to the schedule. The basis for the so-called balance is that if certain issues arise, the great British public will be reassured because there will have to be a referendum. That is the whole basis of the Bill. Clauses 3 and 4 set out which treaty amendments will require a referendum. I see that under Clause 4(1)(a) to (m) a referendum will be required. Quite how would you frame a question for a referendum on, for example under paragraph (d),

“the conferring on the EU of a new competence shared with the member States”.?

Will you ask, “Are you in favour of this new competence shared with the member states, which the Government have already approved and put to Parliament”? Does that make sense? Is that balanced? Of course not; it is a gross distortion of the whole process.

That is Clause 4—the height of the Bill. Go to Clause 6, which is unbelievable as far as balance is concerned. The Bill gets worse as it goes on but I will just deal with Clause 6, which says:

“The decisions to which subsection (1) applies are … a decision under the provision of Article 31(3) … that permits the adoption of qualified majority voting”.

Look at paragraph (c), which refers to,

“a decision under Article 86(1) … involving participation by the United Kingdom in a European Public Prosecutor’s Office”.

That will demand a referendum. What will we ask? Will we say to the British people, “Are you in favour of the United Kingdom’s participation in a European public prosecutor’s office”? Will it be feasible to have a referendum campaign on that? Will people be lined up on each side of that argument, saying “Yes, I am in favour of a public prosecutor’s office” or “No, I am not in favour of a public prosecutor’s office”? Look at the next one.

[Lord Foulkes of Cumnock]

Will my noble friend give way?

[Lord Richard]

No, not yet. The next paragraph refers to,

“where the United Kingdom has become a participant in a European Public Prosecutor’s Office, a decision under Article 86(4) … to extend the powers of that Office”.

What will you ask in relation to that? Will you say, “We have already decided that we will be a member of the public prosecutor’s office. Are you, the great British public, now in favour of an extension of those powers”? It is fatuous. How could you possibly campaign on that, and how could you possibly respect any result that you got?

--- Later in debate ---

[Lord Foulkes of Cumnock]

My noble friend illustrates the matter brilliantly in relation to the extension of powers of the public prosecutor’s office and the issue that we are now discussing. I ask him to contemplate this referendum taking place if the two sides of the coalition were on different sides of the argument and the dialogue that might occur between Nick Clegg and George Osborne, to take a random example. Would not the dialogue in that case be far more vitriolic even than the dialogue that is taking place at the moment if they were talking about the public prosecutor’s office?

[Lord Richard]

My Lords, I can promise my noble friend one thing: if such a referendum were to take place, the turnout would be absolutely minimal. I do not understand how in those circumstances anybody could conceivably rely on that result as providing balance vis-à-vis the argument that the European Community is at the moment unpopular and deserves to become more popular.

Kyrgyzstan

Lord Foulkes of Cumnock Excerpts

Wednesday 6th April 2011 Lords Chamber

[Lord Howell of Guildford]

I cannot say precisely, but there are questions about how much and whether proper freedom is being observed. There have been some criticisms. These are the sort of issues that we monitor very closely. We are not at all reticent or backward in pointing out the vital need for greater freedom of the press if democracy is to develop there.

[Lord Foulkes of Cumnock]

When the Minister contacts the IPU and the CPA about the promotion of democracy in Kyrgyzstan and elsewhere, will he include the Westminster Foundation for Democracy, which was set up by the previous Conservative Government and supported by the Labour Government and works closely with the CPA and the IPU? It has an increasing role not just in the Caucasus but in the Middle East, north Africa and—in light of the next Question, which is on Côte d’Ivoire—in sub-Saharan Africa.

[Lord Howell of Guildford]

That is an emphatic yes.

European Union Bill

Lord Foulkes of Cumnock Excerpts

Tuesday 5th April 2011 Lords Chamber

[Lord Deben]

I hope that the noble Lord, Lord Howell, can help us on this occasion, because I fear that if he does not, two problems will occur. The first is the way in which the Bill has been explained to people such as me, who hold the same view about Europe that we started with and have no intention of changing it because it is even more important now than it was when we began. We have been told that the Bill is merely a means whereby we can give the British people confidence that, should some very large change be made, there will be an automatic opportunity for them to give their view.

I do not believe in referenda in any circumstances. They are wholly unsuitable in a parliamentary democracy; they are a foreign invention used by people for ulterior motives; and they have never been part of the sort of society in which we live. I am ashamed that my Government have brought this forward. I am even more ashamed that the Liberal Democrats allowed an agreement with the Conservative Party to contain this element. I look forward to hearing an explanation from some noble Lords who stood side by side with me in debates again and again yet who allowed this to happen. However, it has happened and the excuse given to people such as me is that it is all right because it will be used only in extreme cases when probably one would want the information anyway, and we have to understand that we have moved on when it comes to referenda.

I have still to be convinced, and this does not help the convincing. The suggestion is that we reserve the right to have a referendum on something that cannot take powers from this country and give them to the European Union. Later I shall point out that there are many things that we need. I will mention quickly the need for greater European competence in energy, so that the Spanish will be able to feed their energy into the grid and will not be stopped by the French who want to protect their nuclear industry. That needs specific European powers. I can imagine going up and down the country, trying to explain to people why we have to have a referendum on energy moving from Spain to France, because the Government have trapped themselves with the Bill. However, that is for later. Here we are giving the Government powers to ask for a referendum on something that they do not need in the rest of the Bill; it is the most amazing proposal. I will come to my second reason when I have given way to the noble Lord, Lord Foulkes.

[Lord Foulkes of Cumnock]

The noble Lord referred to competence on energy. Is not an even more powerful example that of the environment? I heard the noble Lord chair an international conference on the environment; he chaired it splendidly. Is that not a perfect example of where a European competence is even more vital?

[Lord Deben]

Well, we could go into the referendum and opinion poll mechanism of running government, which of course means the Daily Mail running government—let us be clear what the purpose of this is. If we ran government by opinion poll, we would exempt from the Bill anything to do with the environment, because an overwhelming majority of people believe that the environment is better protected on a European basis. They understand that half the emissions we create we give to the rest of Europe, and half the pollution in this country comes from the rest of Europe. One cannot have an air pollution policy unless it is European, and that is true of most of the issues about which we talk.

I will give my noble friend Lord Howell the second reason why we need to be very careful about this; it is for his own protection. If this is in the Bill, the head-bangers, of whom there are some in both Houses, will say, every time there is any decision in the European Union, “What about this?”. We all know who they are; it would be quite wrong of me to mention any names, but they will rise to their feet again and again because they are utterly committed to doing anything to stop—I give way to the noble Lord, whom I have not named.

--- Later in debate ---

[Lord Hannay of Chiswick]

I support my noble friend's amendment. It is the practice in this House to start a Committee stage with an extremely abstruse point and this is certainly extremely abstruse. However, I argue that it is the tip of a rather large iceberg which is the overload of the list of things that have to be subjected to referenda set out in the rest of the Bill. This is the kind of entrée for that and it is absolutely right that we should have a serious debate about it now and not just treat it as a minor and abstruse matter.

The inclusion of decisions taken under Article 48(6) is a very clear symptom of a disease which seemed to be caught by the Government when they sat down to draft this Bill. Instead of opting for a very simple Bill, which would have subjected actual treaty changes to a referendum requirement—changes either to the Treaty on European Union or the Treaty on the Functioning of the European Union—they included a large mass of other material, including Article 48(6). That is likely to multiply by quite a lot the damaging effect that this Bill, if enacted, would have. I hope that the Government will think again about the inclusion of these issues within the scope of the Bill and thus be willing to look kindly on this amendment.

One relevant point is that when this House ratified the Lisbon treaty and conveyed our instrument of ratification, which helped, along with the other 26, to bring it into force, we approved a whole series of ways of implementing Lisbon, of which the Article 48(6) issue is one very small part. We deposited our instrument of ratification and Lisbon came into force and the coalition Government accepted that. However, I think that the Government need to pause for a minute to think about whether we are really acting in good faith when we alter the means by which we will deal with these decisions somewhere along the line and introduce a different method of doing so. Noble Lords will gather that this argument does not apply at all to a decision to have a referendum on a change to the treaty. There would be no question of bad faith about that. I think that we would be quite wrong to do so, but if we wish to subject a future treaty change, a change to the Treaty on European Union or the Treaty on the Functioning of the European Union, to a referendum requirement, that is absolutely our own business. We can decide that and cannot be accused of bad faith.

However, when we start tinkering with the way in which we shall approve items that are, as it were, subcontracted under Lisbon to the Council acting by unanimity, and impose new requirements which were not there when we deposited the instrument of ratification, we are taking real risks with that intangible concept—but one which is important within the European Union—which is the confidence that every member state has in the good faith of the other member states.

I say that not because I have thought of that problem off the top of my head, but because it was brought to the attention of the committee set up in the other place to scrutinise European legislation, when it held an inquiry into the sovereignty issue, by the now retired director-general of legal services to the Council Secretariat, a man of extraordinary brilliance who gave successive British Governments massively good and helpful advice on many occasions. In his testimony, which is on the record for anyone to read in the proceedings of Mr Cash's committee, he very delicately said that if the British Government systematically involve themselves in subjecting decisions taken under Lisbon to a referendum requirement, at some stage there is a real risk that the issue of good faith will be raised.

I hope that the Government will look very carefully at this matter and see that we need to cut away a good deal of the areas listed for requirement—among them, most particularly, the one we are discussing now.

[Lord Foulkes of Cumnock]

My Lords, I support the amendment moved with such charming and disarming modesty by the noble Lord, Lord Kerr of Kinlochard. Only someone with a highland title could be so disarming and modest as well as eloquent in moving such an amendment.

I speak with reluctance because I was waiting to see who was going to spring up to defend the Bill and speak against the amendment. As my noble friend Lord Kinnock says from a sedentary position, “There won't be many of them”. I have been trying to find out over the past few days and weeks who is behind the Bill, who is the architect of it, who is the genesis of it, who is pushing it, who is keen to see it go through. I even had a conversation with the noble Lord, Lord Tebbit, and he certainly did not claim any responsibility for the Bill. At Second Reading, we had a number of contributions, almost none of them in favour of the Bill. Even those who were in favour were somewhat embarrassed and reluctant.

I wonder why we are taking up so much time in this House and in Parliament when there are so many other things that should be occupying our attention. The noble Lord, Lord Kerr, made a very eloquent Shakespearian beginning to his speech. If I can get a little bit of Shakespeare right, it made me think:

“Why should we, in the compass of a pale,

Keep law and form and due proportion …

When our sea-walled garden, the whole land,

Is full of weeds, her fairest flowers choked up,

Her fruit-trees all unpruned”.

A lot of things are happening outside in our land, this sea-walled garden, that need our attention, but we are being asked to spend so much time on this, it is really quite unbelievable.

I did not speak on Second Reading because I was at my first meeting of the European Union Select Committee. Excellent work is being done there scrutinising legislation that comes from the European Union. It is generally acknowledged that this House, in this Parliament, in this country scrutinises European legislation better than any other house of any other parliament in the European Union, something of which we should be proud. That makes it even more ridiculous that we are being asked to consider this Bill.

[Lord Pearson of Rannoch]

My Lords, can I test the noble Lord’s pride? Can he give us any examples of any proposals or changes to European legislation, put forward either by your Lordships’ Select Committee or the Select Committee in the other place, that have been accepted in Brussels in, shall we say, the past 10 years?

--- Later in debate ---

[Lord Foulkes of Cumnock]

I have just been put on the Select Committee, so I shall leave that to members such as the noble Baroness, Lady O’Cathain, my noble friends Lord Tomlinson and Lord Richard, and other noble Lords who have been on the Select Committee for many years and know it better than me. I am just beginning to get to know it, but I am sure they can give examples.

[Baroness O'Cathain]

I remind the noble Lord, Lord Pearson, about mobile phone roaming fees, on which we did an enormous amount. Not only are people in this country glad for the work that we did that led to the changes; so are people in other member states.

[Lord Foulkes of Cumnock]

I am grateful to my noble friend—I think I can call her that in relation to that contribution, just on this occasion.

I want to finish by following the point made by my noble friend Lord Tomlinson and asking the Minister to give us a few examples of the kind of things that would be dealt with. I suspect that we will not get many examples or, if we do get any, they will not be very convincing. The Government are reluctant to give us examples because, by giving them, ridicule would be poured on the Government because they are either so irrelevant or so minor.

[Lord Tomlinson]

If we cannot find prospective examples, can the Minister give us some retrospective examples of the things that the Government would have sought the authority in this Bill for?

[Lord Foulkes of Cumnock]

I am really grateful to my noble friend. That is exactly the kind of thing that I was seeking. I know this House, and I have the greatest of respect for the noble Lord, Lord Howell, who I have known for many years and who has been very helpful to me on many occasions. I really feel sorry for him that he has been asked to pilot this Bill through the House. I think it says a great deal for his dedication and his commitment that he is willing and able to do so.

[Lord Pearson of Rannoch]

My Lords, perhaps it is time to have the smallest voice against these amendments. I shall do so by commenting on what noble Lords who have spoken so far have said. Can the noble Lord, Lord Kerr, tell us of any treaty changes so far that have not actually conferred power? I do not much like the word “competence” because it implies someone doing something competent, whereas we know that the European use of the word “competence” means power, which is nearly always exercised with great incompetence.

--- Later in debate ---

[Lord Howell of Guildford]

I understand the feeling of the noble Lord on this, but I want to come in a moment to the reasons why a number of these things would not trigger a referendum. Some things will; some things will not. Most of the items that the noble Lord just mentioned sound to me—I do not know what specific items he is mentioning, but I have already mentioned a list—like items under paragraphs (i) and (j) of Clause 4(1) that would not pass the significance test, so there would be no referendum. I shall explain later that many of the pictures that have been presented of tiny items triggering a single referendum are completely unrealistic in the context of past experience, of which the noble Lords, Lord Kerr and Lord Hannay, have huge amounts. There is the idea that the pattern will be that little bits would dribble out, but let me explain why it will not work in that way.

As far as the simplified revision procedure is concerned, I have explained that Clause 3 would extend the requirements that we are proposing for treaty changes under the ordinary revision procedure, which is a vast and cumbersome thing, in Clause 2 to those transfers of power under the simplified revision procedure. We think that our consistent approach is logical and will help to garner the trust of the British public that we are not seeking all the time to expand the EU’s powers through the back door of the famous competence creep or, in this case, power creep, which has worried so many people who feel that Parliament is not being a sufficient safeguard of the interests of this country.

[Lord Foulkes of Cumnock]

Will the Minister answer one—

[Lord Howell of Guildford]

I will have to plead with your Lordships that if they want answers to all their questions, I cannot manage it if there are constant interruptions. I just cannot do it.

[Lord Foulkes of Cumnock]

I have one simple question on the point made by my noble friend Lord Tomlinson when he intervened in my speech. Perhaps the Minister could give us just one or two examples from the past where, if this legislation had been in existence, a referendum would have been triggered.

[Lord Howell of Guildford]

I have given some examples from the past and I have some more here. There have been 51 vetoes to unanimity, most of which would have failed a significance test, would have been exempted, would not have applied to this country or would have had no influence on our affairs. I am advised that another past example of a transfer of power is when the Court of Justice was given the new power to impose fines on member states for non-compliance in specific areas. Were that to have been proposed in an area under Part 3 of the Bill or Article 48(6), it would represent a transfer of power which would have to be assessed over the tests in this Bill.

I want now to turn to the crucial implications.

Egypt

Lord Foulkes of Cumnock Excerpts

Monday 31st January 2011 Lords Chamber

[Lord Howell of Guildford]

I am sure this is in the mind of the Foreign and Commonwealth Office, about which the noble Lord knows a great deal. He probably knows a great deal more than I do; he has spent more time there than I have. This is an age that requires agility, adaptability and rapid deployment as never before in handling international affairs, securing stability and peace, and protecting and promoting our interests, so this kind of design will be increasingly required alongside the stable institutions of Whitehall and the hierarchies of government that have prevailed in the past. We have to have some new thoughts on how to deal with the instant conflagrations and instant fires that can spring up in this globalised total communication, totally informational world.

[Lord Foulkes of Cumnock]

Will the Minister confirm that it is not always helpful to talk about countries in the region of North Africa and the Middle East as if they were the same, and agree that in Egypt there are some very active opposition parties—not just Mohammed El Baradei’s group and the Muslim Brotherhood but other parties who have MPs, some of whom have links with United Kingdom political parties. There is a vibrant civil society, and there are some free media, and we have in Dominic Asquith, as we had with Derek Plumbly, and their staff, people who know this situation very well. I found this out when I visited on a number of occasions with the Westminster Foundation for Democracy to try to promote democracy in Egypt. Will he agree that our top priority must now be to do everything that we can through all the international organisations of which we are members to make sure that there are free and fair elections for the President and the Parliament?

Uganda

Lord Foulkes of Cumnock Excerpts

Thursday 15th July 2010 Lords Chamber

[Lord Howell of Guildford]

Yes, I can confirm what the noble Lord rightly says. AMISOM consists predominately of Ugandan troops but also has Burundian troops. There is no doubt in my mind that the UN generally needs a stronger and more co-ordinated strategy to deal with the Somalia threat. However, we do not take the view that this is the right time yet for a full-blown UN peacekeeping force, because frankly there is no peace there to keep. Supporting and reinforcing AMISOM is therefore our declared preference at the moment.

[Lord Foulkes of Cumnock]

My Lords, does this incident not indicate that there is a continuing, and indeed an increasing, threat of terrorism from Somalia as well as from al-Qaeda in other parts of the world? Notwithstanding the fact that there is to be a comprehensive spending review, will the Minister give this House a categorical assurance that there will be no cutbacks in the money available to our security and intelligence services?

[Lord Howell of Guildford]

I cannot anticipate the fine detail of the strategic defence review, but I can certainly say that it is clearly and rightly a supreme priority that we look after our security and that we have the wider reach necessary around the world to safeguard our security and prevent the growing development of sources and activities that may lead to horrors being visited on our own country.

Maldives

Lord Foulkes of Cumnock Excerpts

Tuesday 13th July 2010 Lords Chamber

Asked By

[Lord Foulkes of Cumnock]

To ask Her Majesty’s Government what is their assessment of recent developments in the Maldives, including the arrest of parliamentarians; and what action they propose to take.

[The Minister of State, Foreign and Commonwealth Office (Lord Howell of Guildford)]

My Lords, the Maldives Cabinet was reappointed on 7 July following its resignation on 29 June. This represents a step towards the restoration of political stability. We continue to monitor closely developments and press the Government and Opposition to co-operate on the key issues of national interest.

Two Members of Parliament have been released but the Deputy Speaker of the Maldives remains under house arrest. We have stressed to the Government the importance of all being treated in accordance with Maldivian law.

[Lord Foulkes of Cumnock]

My Lords, does the Minister share my disappointment that President Nasheed seems to be reverting to the bad habits of his predecessor, which he criticised at the time, of arresting MPs—which has been declared illegal by the Supreme Court—and pressurising the Maldivian media and the courts? Will the United Kingdom Government use all their contacts—governmental, party and personal, as the Foreign Secretary is a good friend of President Nasheed—to ensure that all democratic freedoms are restored as quickly as possible?

[Lord Howell of Guildford]

We are pursuing full encouragement through our high commission in Colombo and other means to ensure that democratic development continues. We regard the restoration of the Cabinet as a step forward. We have a friendly, constructive and supportive interest in the sound stability of the Maldives and we will continue on that path.