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Lord Hunt of Kings Heath: My Lords, my noble friend has put the matter very well.
Baroness Knight of Collingtree: My Lords, bearing in mind the question directed to the Minister by my noble friend Lord McColl, did the purchasing go out to tender?
Lord Hunt of Kings Heath: My Lords, the NHS is using the independent sector and is reaching agreement around the country. Many different contracts have been agreed between the NHS and the independent private healthcare sector in this country. I have described a pilot scheme under which agreements have been reached with hospitals in France and Germany to provide even more capacity in addition to that being bought from the independent private care sector in this country. So the question of tendering simply does not arise.
Passive Smoking
3 p.m.
Lord Faulkner of Worcester asked Her Majesty's Government:
- What measures they are taking to protect employees from the effects of passive smoking at work, and children from the effects of passive smoking at home and in public places.
Lord Hunt of Kings Heath: My Lords, passive smoking over a prolonged period is dangerous. We are taking action to ensure that smokers are aware of the dangerous effects that their habit has on those around them. The public places charter is encouraging the provision of smoke-free places to eat and drink, and local tobacco alliances are being specifically funded to develop projects tackling passive smoking.
Lord Faulkner of Worcester: My Lords, I thank my noble friend for that reply. He will be aware that the Government's own scientific committee on tobacco and health has now concluded that passive smoking is a cause of cancer, heart disease and respiratory illness; and also that American physicians now have an obligation to warn non-smokers against exposure to second-hand smoke. So does my noble friend appreciate that the lack of progress in introducing the approved code of practice on passive smoking at work proposed by the HSC almost two years ago—and indeed supported by my noble friend's department in the White Paper, Smoking Kills, four years ago—is most disappointing? Does my noble friend accept that children need to be protected, and that it is unacceptable for parents to take them into designated smoking areas such as those in airport lounges?
Lord Hunt of Kings Heath: My Lords, there is an issue in regard to parental responsibility. Judgments
have to be made by parents, just as we should encourage the provision of non-smoking areas as much as possible. As regards the approved code of practice, we are giving careful consideration to the commission's proposals. As part of that careful consideration, we have asked the Health and Safety Commission to consider the implications of the code on the hospitality sector and on small businesses generally. We shall be considering what further advice the commission gives us.
Lord Clement-Jones: My Lords, is the Minister aware that the reply he has just given is identical to the one he gave in February 2001? Clearly, there has been no progress since the matter was last debated in this House. Perhaps I may invite the Minister to accept the statement of the Parliamentary Assembly of the Council of Europe. It invites the Government to make smoke-free areas the absolute norm in enclosed places to which the public have access. Is that any more to the Minister's taste?
Lord Hunt of Kings Heath: My Lords, I am glad that I am consistent in my responses to this House. I have said that we take this matter very seriously. That is why the Health and Safety Commission has consulted on its approved code of practice. It is why the Government are giving consideration to it, and why we have asked the commission to do further work, looking at the impact of such a code of practice on small businesses. Surely that is an appropriate and proportionate way to proceed. Of course I understand the importance of such a code of practice. But we must also bear in mind the potential impact of such a code on business generally and on small businesses in particular. I do not believe that it is wrong for the Government to say to the Health and Safety Commission that we want it to look very carefully at the likely impact on small businesses.
Baroness Gale: My Lords, does my noble friend agree that there are now proven strong links between passive smoking and childhood asthma? What further advice can the Government give to parents to alert them to this great danger to their children? Will my noble friend further agree that, despite all the advice given on passive smoking, we ought to be moving towards a total ban on smoking on all forms of public transport?
Lord Hunt of Kings Heath: My Lords, we have to be wary of legislating for bans in this area. Our focus needs to be on health promotion and health education. I agree with the substance of my noble friend's point about asthma attacks in children. That is one of the issues that we should seek to take forward in any future education campaigns.
Lady Saltoun of Abernethy: My Lords, endless no-smoking areas seem to be provided now, and hardly
any smoking areas. Poor smokers! Why do people who have given up smoking have to be quite so nasty to those who have not?
Lord Hunt of Kings Heath: My Lords, I am not a health fascist. It is entirely appropriate that smoking and non- smoking environments are provided. We should not seek to demonise smokers. We should seek to encourage them to give up smoking if they wish to do so. We need a proportionate response. The smoking cessation services on which we have embarked have had great success in helping those who have given up smoking to continue the good work.
Baroness O'Cathain: My Lords, how long will it be before we get any action on this issue? Four years ago there was a report; two years ago there was a code of conduct; and we are still consulting and wanting to know about a proportionate response—and people are dying of lung cancer.
Lord Hunt of Kings Heath: My Lords, I cannot give the noble Baroness a date, but I can tell her that we are continuing to give this matter very great consideration. It is important that the Health and Safety Commission gives us further advice on the potential impact on small businesses, and that we should await that advice before making any further decisions.
Viscount Simon: My Lords, in my noble friend's original Answer, he said that passive smoking can be dangerous over long periods. Being asthmatic, I know that it can be dangerous over very short periods. Does my noble friend agree that although many places have no-smoking areas, drifting smoke from smoking areas can frequently be present?
Lord Hunt of Kings Heath: My Lords, I agree. That is why we encourage businesses and those who run public buildings to ensure that there are proper non-smoking areas. We all know that it can be uncomfortable in a restaurant when smoke wafts over to the non-smoking area. That is the reason why we must consider carefully the impact of the code on small businesses and the measures that they would have to take to avoid that.
Public Services (Disruption) Bill [HL]
Read a third time, and passed, and sent to the Commons.
Export Control Bill
3.8 p.m.
Lord Sainsbury of Turville: My Lords, I beg to move that the Commons reasons be now considered.
Moved, That the Commons reasons be now considered.—(Lord Sainsbury of Turville.)
On Question, Motion agreed to.
1Clause 1, page 1, line 10, at end insert—
Where export controls apply to goods which are within one or more of the categories mentioned in paragraph 1(1) of the Schedule, the guidance issued under section (Guidance about the exercise of functions under control orders) shall have regard to their issues relating to sustainable development and to any possible consequences of the goods being controlled that are of a kind, mentioned in the Table in paragraph 3 of the Schedule:",
Lord Sainsbury of Turville: My Lords, I beg to move that the House do not insist on their Amendment No. 1 to which the Commons have disagreed for their reason numbered 1A.
Lords Amendment No. 1 inserted text relating to guidance in Clause 1. I hope that, on reflection, the House will be prepared to agree, as the Commons reason explains, that it is indeed inappropriate to make provision on the contents of guidance in Clause 1 rather than in the clause which actually relates to guidance about the exercise of functions under control orders. I hope also that the House will agree with the Commons that more appropriate provision is indeed made in Amendment No. 17, as amended by Amendment No. 17A. For all these reasons, I hope that the House will agree not to insist on their Amendment No. 1.
As the issues raised are so similar, I propose also to address Lords Amendment No. 17 and Amendments Nos. 17A and 17B.
As the House will be aware, the Commons agreed to Lords Amendment No. 17, but with the proviso that the earlier Liberal Democrat amendment, represented by the first seven lines of subsection (4) as it appears on the Marshalled List, be deleted and replaced with the words,
In considering Amendment No. 17B, I should like first to express my gratitude to the noble Lord, Lord Redesdale, and to my noble friends and colleagues for their courtesy in meeting me last week to discuss this amendment. I hope that it was a productive meeting.
I hope that when I have outlined the damaging, and I am sure unforeseen, consequences of Amendment No. 17B, all will agree with me that the House should not support it. I also hope that, in the course of my speech, I will be able to provide sufficient reassurance about the effect of government Amendment No. 17A to enable the noble Lords, Lord Redesdale and Lord Joffe, to withdraw their Amendment No. 17B and join the rest of the House in agreeing with the Commons in their Amendment No. 17A to Amendment No. 17.
Amendment No. 17B goes a long way to addressing one of the concerns that the Government have already expressed on several occasions. This was that amendments to the Bill might force the Government into a situation where departments were obliged to give some consideration to issues of sustainable development, and all the issues in the schedule table, whether or not they were remotely relevant to a particular case. However, those who have read Hansard for the most recent debate on the Bill in the other place, on 24th June, will be aware that this was not our only concern about the earlier Liberal Democrat amendment, and indeed that this same serious concern extends to the new proposal before us today. If I may I shall explain in detail why that is the case.
Under the Government's proposed amendment, the Bill imposes a duty to have regard when exercising licensing powers to the consolidated national and EU criteria. Unfortunately, Amendment No. 17B has the effect of establishing a new and, in certain important respects incompatible, duty to have regard to issues as described in the amendment.
Under the Government's proposed Amendment No. 17A, the subsection (5) duty to have regard to the guidance addressing the issues set out in subsection (4)(i) and (ii) is informed by the reference in subsection (8) to the consolidated criteria. Indeed, were there ever any uncertainty about our intentions in this regard, review of proceedings of the passage of this Bill in Hansard for the past few months should put the matter beyond doubt. However, the terms of Amendment No. 17B, which says that,
As anyone who has examined the consolidated criteria will know, the criteria contain a wealth of detail, setting out the various and sometimes conflicting considerations that must all be taken into account. The terms of the new duty that would be laid upon the Government by Amendment No. 17B would have no such detail, nor would it acknowledge the possibility that considerations might conflict or that risks might vary in magnitude. Thus, such a duty has the potential to require us to take a different approach to licensing decisions within the UK from that taken by the rest of the EU and to require the Government to take licensing decisions against criteria that were different from those in the EU Code of Conduct. It is even conceivable that in the future this duty might make it impossible for the UK to subscribe to the EU code. This cannot be right.
Moreover, under the Government's proposed amendment, the subsection (5) duty to have regard to the guidance which addresses sustainable development and the schedule table issues is informed by the reference to the consolidated criteria in subsection (8) of this clause. The creation of this new and different duty puts this link with the criteria at a distance, with the result that the definition of all the schedule table issues and sustainable development is no longer informed by the definitions in the criteria.
The proposed amendment would require the Government to give consideration so far as relevant to "issues of sustainable development"—no more and no less. Relevant issues of sustainable development in this context would extend way beyond the terms of criterion 8. For example, it might encompass issues relating to environmental, animal and plant preservation and protection. To extend the application of this term in such a way would put us completely out of step with our European partners, and would create considerable uncertainty for all operating under the export licensing regime, not to speak of putting UK industry at a competitive disadvantage in world trade.
I hope that this explanation has given the House some indication of why Amendment No. 17B, however well-intentioned, would have inappropriate and damaging consequences. However, before I in due course ask the House to join me in inviting the noble Lords, Lord Redesdale and Lord Joffe, to withdraw their amendment, I shall try to give some reassurance about the effects of Government Amendment No. 17A.
I should first set the amendment in context. Noble Lords will remember that we acted several months ago to strengthen significantly the role played by guidance and the consolidated criteria under the Bill, by making it a requirement for the Secretary of State to issue guidance about the general principles to be followed when exercising licensing powers and by stating that the consolidated criteria constitute such guidance on general principles. The Bill thus makes clear the prominent role that the Government intend the consolidated criteria to have. It is also clear that the Government intend it to be a requirement for all future governments to issue guidance on how they propose to consider sustainable development and all
I know that many have been concerned that the words in Amendment No. 17A, "if any", might allow a future government simply to decide to ignore important issues such as sustainable development when considering export licence applications. However, this is not the case. Under the Government's original proposal, now represented by Amendment No. 17A, it would not be possible for a future government simply to decide to ignore sustainable development or any of the schedule table issues by saying, "We have considered sustainable development and concluded that it has no place in the consideration of any export licences". I can assure the House that that would not meet the requirements of the clause proposed by the Government.
All governments need to be able to take justifiable decisions—I deliberately emphasise the word justifiable here—that there is no need for sustainable development or indeed any of the other schedule consequences to be considered in certain specific cases. However, when exercising licensing powers in accordance with general principles guidance issued under this clause, this ability to take such justifiable decisions would not extend to ignoring relevant information.
I would remind the House that it is a basic principle of government that when taking a decision, Ministers must always take into account all relevant information. I mention this now because it has been put to me that the fear is that a future government might see Government Amendment No. 17A as a means to avoid taking relevant information into account. A Minister who fails to take relevant information into account when reaching a decision risks opening him or herself up to judicial review for having taken an improper decision.
It is clear to me that we all share the same goal—to ensure that future governments cannot simply choose to ignore issues such as sustainable development, human rights and all the other issues set out in the table in the schedule. Therefore, in the light of the assurances I have just given, and a clear statement that it is my and the Government's belief that Government Amendment No. 17A would not allow future governments simply to ignore these important issues, I hope that the House will agree with the Government.
For all these reasons, I ask the House not to insist on its Amendment No. 1, to which the Commons have disagreed for their reason numbered 1A. In due course, I shall also be asking the noble Lords in whose name Amendment No. 17B stands to agree to withdraw their amendment. Finally, I shall also be asking the House to achieve our common goal and avoid these unnecessary and damaging effects by begging to move that the House do agree with the Commons in their Amendment No. 17A to Lords Amendment No. 17.
Moved, That the House do not insist on their Amendment No. 1 to which the Commons have disagreed for their reason numbered 1A.—(Lord Sainsbury of Turville.)
Lord Joffe: My Lords, in speaking to Amendment No. 17B tabled in my name and that of the noble Lord, Lord Redesdale, I wish to speak also to Amendment No. 17A.
I have listened carefully to the Minister's courteous and detailed response but remain unconvinced about the additional duty that would be placed on the Government. I shall touch on that matter later.
The purpose of Amendment No. 17B is to ensure that the Government are obliged in practice to give consideration to the possible impact upon sustainable development when making export control decisions. The Government assure us that they have every intention of doing that but refuse to commit themselves unreservedly to do that in the Bill. Instead, they have introduced the weasel words "if any" which sound so innocuous but which appear to give the Government discretion to exclude virtually whatever they wish from the guidance to be issued by the Secretary of State. I emphasise here that I accept that the Government cannot totally disregard sustainable development but the ability to define at their discretion when they will exercise the right to disregard it is fundamental to the case for the amendment.
It is difficult to envisage how the Government will produce meaningful guidance on general principles on an "if any" basis unless they include with the general guidance a description of the types of transaction in respect of which sustainable development would not be a consideration. If I am mistaken in arriving at that conclusion, I hope that the Minister will in his response outline precisely how the Government propose to give guidance on an "if any" basis. It would seem that under the proposed government amendment the Secretary of State would be free to provide guidance that sustainable development should be excluded from consideration where, for example, an overpriced air traffic control system was being sold to an impoverished country. Does the Minister agree that the Secretary of State would have the power to do that?
One of the hallmarks of this otherwise excellent Bill is what I would categorise as government spin ingrained in legislation. The Government purport to include sustainable development as a consideration but then introduce the words "if any" which substantially negate that effect. Likewise, as regards the extraterritorial trafficking of arms the Government purport to criminalise that activity on the part of UK citizens but then provide a loophole under which they can lawfully traffic outside the United Kingdom.
The Minister has argued that there is concern about the definition of "sustainable development" that would lead to the Government having to issue guidance on a number of different areas that went
In the other place Nigel Griffiths argued that the original Lords amendment was inconsistent with the European Union code of conduct on arms exports and that that made it impossible for the United Kingdom to abide by the code. The Minister developed that argument earlier in the debate. In fact, there is nothing at all in the proposed amendment which conflicts with the European Union code. Legal advice taken from Matrix Chambers confirms that. Will the Minister draw the House's attention to the conflicts that he fears would arise under the amendment? The preamble to the European Union code is clear. It is determined to set high common standards which should be regarded as the minimum for the management and restraining of conventional arms transfers by all member states. It is clear that those are minimum standards. There is no reason at all why the Government should not extend their provision to cover items which are not inconsistent with the European code but sympathetic to it.
The Government's other concern about removing the words "if any" was their need for flexibility. That concern is also misplaced. It must be remembered that what we are concerned with in this amendment is guidance. All that is required is that the Secretary of State pay due regard to the guidance. If sustainable development is not an important consideration, the guidance could state that little or no weight needs to be placed on it.
Overall, it is difficult to find any credible reasons for the Government not to accept the Lords amendment. However, Amendment No. 17B is proposed in a spirit of compromise and is carefully drafted to meet the flexibility concerns expressed by the Minister on Report. In col. 1101 he said that,
Legal opinion from Matrix Chambers advises that the phrase "so far as relevant" still provides the Government with some flexibility, giving them the option of not considering sustainable development and the relevant consequences in cases where it is clearly not relevant, such as an uncontroversial single shipment of arms to, say, the USA or Canada. However, it does not allow the Government to ignore sustainable development and the relevant consequences where they are relevant. The result would be that where sustainable development is relevant it must be considered but where it is not relevant the Government do not have to consider it, which, I understand, is exactly what the Government wish.
In making the case for the amendment I have focused on the effect of the words "if any" on sustainable development. In point of fact, the government amendment extends well beyond that. It applies by virtue of subsection (4)(ii) to all the other relevant consequences included in the table in paragraph 3 of the schedule such as adverse effects on peace, security, internal repression and breaches of human rights. It enables the Secretary of State to give guidance that all or any of those matters should be ignored in certain circumstances as defined by the Secretary of State. That absolute right of the Secretary of State to define the circumstances in which he may simply disregard those issues has the potential to undermine many of the purposes of this excellent Bill. This amendment would limit the Secretary of State's right to disregard those issues to cases where they are irrelevant and do not need to be taken into account. It in no way contradicts the Government's intentions as expressed from time to time.
The Commons disagreed to this Amendment for the following Reason—
1ABecause it is inappropriate to make provision in Clause 1 about the contents of guidance under Clause 7 and Lords Amendment No. 17 (as amended by the Commons) makes more appropriate provision.
"The guidance required by subsection (3) must include guidance about the consideration (if any) to be given".
Your Lordships will remember that the text I have just read out is that originally proposed by the Government in this House. Under Amendment No. 17B, the noble Lords, Lord Redesdale and Lord Joffe, have suggested that the Government consider replacing the earlier Liberal Democrat amendment with a slightly different text, namely that:
"The guidance required by subsection (3) must state that consideration shall be given, so far as relevant".
"the guidance . . . must state that consideration shall be given, so far as relevant to",
actually set up a separate duty. As this would be a primary legislative requirement, it would have the capacity to take precedence over the consolidated criteria and EU code. Thus this duty would conflict with the Government's existing commitment, given to Parliament and to our European partners, to consider strategic export licence applications against the consolidated criteria.
3.15 p.m.
"the Government need to be able to take common-sense decisions and to reach a judgment when taking export licensing decisions that particular considerations are simply not relevant in certain cases and situations".—[Official Report, 18/04/02; col. 1101.]
That is precisely what the amendment seeks to achieve. It is carefully crafted to include the Minister's wording with regard to relevance. In the amendment "if any" has been replaced by "so far as relevant".
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