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Lord Sainsbury of Turville: I find it hard to understand the distinction that a committee of parliamentarians—that is what it is—is not, in some sense, representative of Parliament's views and that, if it takes part in the decision-making process, it is not, in some way, sharing in that process.
Lord Campbell-Savours: I am sorry to come back to my noble friend, but that discussion has taken place repeatedly in proceedings in the Intelligence Services Committee. The ISC draws a gross distinction, as has the Prime Minister in correspondence with me over the years, between a committee comprising parliamentarians and a parliamentary Select Committee. There is a clear distinction that is often referred to during evidence given by the chiefs of the security services.
My noble friend may not be able to understand that, but it is well rehearsed in other Government departments. He has given a reason as to why he may want to consult further. If that distinction exists, that answer does not stand.
Lord Sainsbury of Turville: I still find it difficult to see that a committee of parliamentarians taking part in decisions is not, in some way, taking part and sharing responsibility. I can only return to the quotation from the noble and learned Lord, Lord Scott of Foscote—
11.30 p.m.
Lord Judd: I am grateful to the Minister for giving way. He keeps saying, "taking part in the decision". The point that is being made by Members of the Committee this evening is that in a whole realm of instances the Government take advice before they reach decisions. What on earth suggests that if we have a Parliament worth having, it is not possible to have a group of distinguished parliamentarians who can give advice? They are not saying what should be done; they are simply giving advice which is taken into account.
I do not want to delay the Committee, but as I have the floor perhaps I might point out, just to take a random example, that Section 124 of the
Environmental Protection Act 1990 requires the Secretary of State to,
- "appoint a committee to provide him with advice [inter alia] on the exercise of powers to grant licences . . . releasing or marketing genetically modified organisms".
Lord Campbell-Savours: Before my noble friend replies perhaps I can refer him to the case of the noble Lord, Lord Birt, and the railway system. He is an adviser to government and a Member of this House. I refer to the noble Lord, Lord Haskins, who wrote the report on agriculture for government. He is a Member of this place and he is also advising government. I ask my noble friend to see this point in that context and not in terms of a committee of the legislature giving advice or making recommendations
Lord Sainsbury of Turville: I would find this argument more convincing if the game had not already been given away by the noble Lord, Lord Phillips, who said that this would merely be giving advice and would have no constitutional implications. He promptly followed that by saying that many people were concerned about the balance of power between the legislature and the executive. He suggested that this would be a good way of dealing with that situation. I took that to be the implication. It was therefore quite clear that he saw this as having a constitutional implication. If the balance between the legislature and the executive is not a question of constitutional importance, I do not know what it is.
Lord Phillips of Sudbury: I am grateful to the Minister for giving way. As he quoted me, perhaps I can say that it is true that I talked in terms of a balance of power. I make no apology for that and it does not in any way go counter to the substance of the issue, which is whether or not the committee concerned gives advice or is a co-decision-maker with the Secretary of State. It is not the latter. Were it the latter, the Minister would have a constitutional point. When talking about the balance of power, as has already been stated by several Members of the Committee, there are many instances where prior scrutiny, prior advice, is given to the executive in order to aid and abet it in reaching a decision. When I talk of the balance of power, it is more in the general sense of that phrase, indicating a concern on the part of the public that there is insufficient relationship between the executive and Parliament at all stages. But I emphasise that this would be an advisory and not a decisive exercise.
Lord Sainsbury of Turville: I am always concerned to find myself debating these issues with both distinguished parliamentarians and distinguished lawyers. I am only fortified in my views by the fact of what the noble and learned Lord, Lord Scott, said, who obviously has some understanding of these constitutional issues and particularly how they apply in this specific case. Perhaps I can quote his reasoning, which seems to be totally pertinent to this point. He said,
- "It seems to me that the function of Parliament, whether of this House or another place, is to hold the executive, the government, accountable for the decisions that they take. Export licensing is essentially an executive function. Parliament has a constitutional obligation to hold government to account for their executive decisions and should not become complicit in them by prior scrutiny, which one supposes would disqualify whichever House had conducted the prior scrutiny from conducting a proper accountability exercise. For those reasons I believe that the prior scrutiny proposal was correctly rejected".—[Official Report, 8/1/02; col. 484.]
In summary, it is for the Government as the executive to take executive decisions and to answer for them later to Parliament as the legislature. The scrutiny of government licensing decisions can and should take place retrospectively rather than before a decision is made. This is where the annual reports on strategic exports play a vital role. The Government believe that their annual reports have greatly improved the transparency and accountability of decisions on export licensing.
Such decisions are made in the full knowledge that they will be subject to public scrutiny, including scrutiny by the Quadripartite Select Committee, and Ministers will, quite rightly, be held accountable for them.
My noble friend Lord Campbell-Savours, in an extremely interesting and carefully constructed amendment, has proposed a system to scrutinise licence applications and the licensing process which would provide for a degree of confidentiality in relation to the committee's activities, but it does not deal with this constitutional issue.
The Government also believe that a system of prior scrutiny could not be made to work without having a materially adverse impact on the efficiency and effectiveness of the export licensing process and without causing significant damage to the competitiveness of UK exports.
In spite of all the discussion about it being in parallel, I know of no case where another body added to the decision-making process—which almost certainly in this case could not start its consideration until it had received all the evidence from the different government departments—would not substantially add to the already complicated process of obtaining government agreement on these key issues.
The Government see Parliament's role in this area as being one of scrutinising decisions after they have been taken and having the opportunity to input into policy. We do not believe that it would be right for Parliament to take part in or advise on the decision-making process itself.
I have listened carefully to the arguments which have been made.
Lord Campbell-Savours: Before my noble friend sits down, perhaps I may place on record to him that his whole brief has been written on the basis that I am talking about a parliamentary committee. I am not talking about that. On that basis, I ask him to revisit the argument during the coming weeks.
Lord Sainsbury of Turville: As I said, we take this matter very seriously. I shall look carefully to see whether the arguments I have advanced are altered by the point made by my noble friend. I have listened very carefully. The government view has been stated very clearly, but I shall take it away and consider whether it has been altered.
Lord Judd: Before my noble friend the Minister sits down, my noble friend Lord Campbell-Savours has put the point extremely clearly. He is not alone in his conviction that we are not talking about a parliamentary committee. It is as clear as this Chamber to me that that is the case. We are not talking about a parliamentary committee.
In his response, my noble friend referred to the observation of the noble and learned Lord, Lord Scott, that it is Parliament's job to hold the executive to account. He seemed to imply, therefore, that what was being proposed would undermine Parliament's job in holding the Government to account. Can my noble friend the Minister illustrate how this will in any way undermine Parliament's ability to hold the Government to account?
The advisory group will give its opinion; its views will be accepted or rejected or whatever; and Parliament will then look at the decision and say whether it is a good decision or a bad decision. I do not see any logic in the case put forward by my noble friend the Minister
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