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Equitable Life
3.03 pm
Baroness Noakes asked Her Majesty’s Government:
Lord Davies of Oldham: My Lords, the Parliamentary Ombudsman has invited the Government to consider the issues raised in her report and reflect on what the response to it should be. The Government are considering
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Baroness Noakes: My Lords, I thank the Minister for that response. The first recommendation of the ombudsman was for a public apology from those public bodies, including the Treasury, which had let Equitable members down. The second recommendation was for a government-funded compensation scheme. To date, we have had only prevarication from the Government. Even if the Minister cannot give a detailed response today, will he say that the Government accept the principle of paying compensation? Also, can he give any good reason for the deafening silence that we have in place of an apology?
Lord Davies of Oldham: My Lords, it is right that the Government should give a full response to the ombudsman’s report, and all the issues that the noble Baroness has raised will be considered in that response. The report was published on 17 July. The Chancellor has indicated that we intend to give the response shortly. The noble Baroness will also recognise that Ministers have been rather busy on significant matters in recent weeks. Of course this matter is important; the Chancellor indicated in his reply that he intends to apply the full resources of the Treasury to the issue in the very near future.
Lord Newby: My Lords, the Minister is being suitably vague about the next stage of the procedure—namely, when we will get any sort of response from the Government at all. At the very least, do the Government accept the recommendations of the ombudsman’s report in terms of timing—namely, that any scheme approved by Parliament should be established within six months of that decision being taken and that the scheme should complete its work within two years thereafter? The problem faced by pensioners, of course, is that they are getting older and the number of people who stand to benefit from the compensation scheme reduces with every passing day.
Lord Davies of Oldham: My Lords, the noble Lord has indicated how important, but how complex, the issues are and the requirements upon the Government to get their response right and to act accordingly. That is why we have taken time to consider the report, but we intend to make that statement shortly, as I have indicated.
Lord Lester of Herne Hill: My Lords, on how many occasions during the lifetime of the present Government, the past 11 years, have they not given effect to recommendations of the parliamentary commissioner for administration? Given that that important office was created by a Labour Government in 1967, and was one of their great achievements, has not the time come to look again at whether Governments should be compelled to comply with the commissioner’s recommendations?
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Lord Davies of Oldham: My Lords, there is no question of the Government needing to be compelled to respond to the Parliamentary Ombudsman’s recommendations. We intend to respond to the report in the very near future. The noble Lord is absolutely right; the Government take the role of the ombudsman very seriously indeed. This is a very important report with profound implications for a number of our fellow citizens and it is only right that the Government should consider it fully and make a full and constructive response as soon as they are able to. That will be in the very near future.
The Earl of Onslow: My Lords, the noble Lord studiously avoided answering the important question posed by the noble Lord, Lord Lester: how many times have the Government not followed the ombudsman’s advice? Can we have an answer, please?
Lord Davies of Oldham: My Lords, I did not give an answer because I have not got one for that question. I wanted to emphasise that the Government of course regard the ombudsman’s reports very seriously indeed and that is why we are preparing our response to this very important report, published just before the Summer Recess. The whole House will recognise the importance of the issues and their complexity. The Government will respond to the report shortly.
Lord Elton: My Lords, will the noble Lord get an answer to my noble friend’s question and give it to us in due course?
Lord Davies of Oldham: My Lords, I would be only too happy to do so, but the noble Lord will surely give the Government credit for the fact that they are approaching this report with due seriousness, as they have done all other reports of the ombudsman because it performs an important public service, which asks serious questions of the Government, to which they respond constructively.
Lord Skelmersdale: My Lords, in one of the ombudsman’s comments blame was laid—in part, anyway—on the Financial Services Authority. When it was set up, it was told to regulate with a light touch. Given the current banking crisis, which was made considerably worse by that light touch, do the Government consider that the time has come to give new instructions to the FSA?
Lord Davies of Oldham: My Lords, we already appreciate the importance of changing aspects of the regulatory regime, but I hope that the House will count the number of times when representations come from supporters of the party opposite on the need for increased regulation of aspects of our financial services.
Lord Clinton-Davis: My Lords, can my noble friend indicate how often the Conservative Government produced a report within a similar time? I think that the answer will be never.
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Lord Davies of Oldham: My Lords, my noble friend is very kindly further exposing my ignorance on this matter because I cannot produce the answer in quantitative terms. However, the House will appreciate that criticism of the regulatory regime, to which the Parliamentary Ombudsman gave voice, covered the decade before 2000, and during seven of those 10 years the other side formed the Administration.
Lord Naseby: My Lords, I speak as someone who has read the report. With regard to the Government’s response and to those of us who were practising in the early part of that period, is the Minister aware that that there was a big difference between the responsibilities of the Department of Trade and Industry and the management at that time, and those of the later period, when the FSA was the authority involved?
Lord Davies of Oldham: My Lords, the noble Lord knows these matters well and, as he indicated, followed the report carefully. The issues relating to responsibility are complex. We had the report from Lord Penrose prior to the ombudsman’s examination and he indicated the number of organisations that had been remiss. However, the House may recall that his overwhelming concern was that Equitable Life had brought the financial crisis upon itself.
Lord Higgins: My Lords, the ombudsman described the Equitable saga as a “decade of regulatory failure”, but has there not also been a decade of stonewalling by one after another of the government departments concerned, with the same officials in fact moving from one department to another? Following a period when the Government have done everything possible, as indeed the ombudsman’s predecessor did, not to reach a conclusion on this matter, should we not have a rapid decision on it? Should we not in fact have a debate on the matter before the Government take a view, as the ombudsman recommended?
Lord Davies of Oldham: My Lords, these are complex issues. I agree with the noble Lord that it is now important for the Government to respond to the clearly defined ombudsman’s report. We intend to do so and to put an end to what he regards as stonewalling but, as I reflected, merely relates to the complexity of the issues concerned.
Business
3.13 pm
Lord Bassam of Brighton: My Lords, I suspect that the debate on the first group of amendments on the Counter-Terrorism Bill will be substantial. Therefore, for the convenience of the House, I suggest that my noble friend Lord Davies of Oldham repeats the Statement on financial markets at the conclusion of the debate on that first group.
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Immigration (Discharged Gurkhas) Bill [HL]
3.15 pm
Lord Lee of Trafford: My Lords, I beg to move that this Bill do now pass. I draw your Lordships’ attention to the pronouncement in the High Court that the current immigration policy of denying visas is unlawful and needs urgent revisiting. In the light of that, I hope that Her Majesty’s Government will now support the Bill.
Moved, That the Bill do now pass.—(Lord Lee of Trafford.)
Lord Brett: My Lords, in the light of the court ruling, urgent action has been taken to publish new guidance and to review all cases outstanding by the end of the year. The new policy guidance will be published at the turn of this month and a copy will be placed in the Library. Additional resources are being redeployed to ensure that we honour our commitments to the Gurkhas by reading all the 1,000 overseas applications, plus the 200 in-country appeals, by the end of the year.
On Question, Bill passed, and sent to the Commons
Counter-Terrorism Bill
3.16 pm
The Parliamentary Under-Secretary of State, Home Office (Lord West of Spithead): My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved accordingly, and, on Question, Motion agreed to.
House in Committee accordingly.
[The LORD SPEAKER in the Chair.]
Lord Dear moved Amendment No. 29:
29: Before Clause 22, insert the following new Clause—
“No extension of pre-charge detention
For the avoidance of doubt, nothing in this Act allows the Secretary of State to extend the maximum period of pre-charge detention beyond 28 days.”
The noble Lord said: On 8 July this year, your Lordships gave a Second Reading to this Bill in proceedings that lasted seven and a half hours. Almost 50 noble Lords spoke; most concentrated on the issue of 28 days’ detention; and the overwhelming majority was opposed to the extension. It was big news at the time; indeed, it was very big news. Since then nothing of any consequence has arisen that might alter the arguments. Of course, world economic news dominates the agenda, and despite our preoccupation with the economy, I suggest that this issue remains one of prime constitutional importance, bearing considerations of national security and the civil and legal rights of citizens. The arguments—or battle lines—are clearly drawn.
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Importantly, we are all agreed on one thing: the threat to western democracies from extremist groups and terrorists is higher now than it has ever been. The suicide bomber has changed the security landscape. The police often have to intervene much earlier in the process than they once would have done, and by doing that they are trying to protect the public from undue risk. At the same time, the evidence available to them is much less than would have been the case elsewhere. It is often incomplete. The investigations are often much more complex. Terrorist groups are often highly sophisticated. They are certainly surveillance conscious and can see all their communications networks with very great skill and at very great depth. All that leads to difficult and protracted investigative processes. I need hardly say that investigators often work under great pressures of time. So, we can all agree to this point.
The Government now suggest that the present limit of 28 days’ detention for those arrested for terrorist offences may be too restrictive. They say that sooner or later more time will be needed to complete a proper investigation. They say that the law needs amendment to give the prosecution in some circumstances up to 42 days in which to complete the investigation—a process that was described in a newspaper by one commentator back in the summer as having something in the “legal back pocket”, just in case. That is a clumsy phrase but perhaps it encapsulates the essence of the argument being advanced.
I shall outline briefly six solid reasons why I take issue with this and why I have tabled the amendment. First, there is no evidence to date that we have ever come close to running out of time within the present 28-day limit. The DPP is very clear on this point. Hitting the 28-day buffers is not seen by him or his staff as likely in the foreseeable future. To date, most charges have been brought at or before 14 days. In those cases where charges were preferred closer to 28 days, we are told that evidence was often already available to prefer the charges earlier, but the authorities delayed just in case further, more serious evidence was forthcoming.
Secondly, no other country in the western world that has a common law system like ours—an accusatorial rather than an inquisitorial system—has extended detention without charge to 42 days. In fact, no country has gone as far as 28 days. The nearest comparison is Australia with 12 days, and all the rest of the comparable countries operate with single figures. I need hardly remind your Lordships that in America it is two days and in Canada it is one day. So why the marked disparity? Those countries often face a threat similar to our own. How is it that they manage and we apparently cannot?
Lord Foulkes of Cumnock: The noble Lord said that in the United States people are kept in detention for up to two days only. How does he reconcile that with the prisoners in Guantanamo?
Lord Dear: I understand that the detainees in Guantanamo were arrested outside the USA and its jurisdiction.
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Thirdly, there is almost universal opposition to what the Government propose. It almost beggars belief that any Administration could embark on such a course. Just look at the list of those who oppose the Government: the Law Society; Amnesty; Liberty; Justice; the previous Attorney-General; the previous Solicitor-General and Lord Chancellor; and successive Directors of Public Prosecutions. There are many others, but perhaps the most important person to note in that list is the Director of Public Prosecutions. DPPs are uniquely required to evaluate evidence as it comes in during the investigation, make a professional judgment on the adequacy of the material and watch the time on the judicial clock. The police and the security services have conducted some outstanding operations in recent years, but the DPP alone is the best judge, arguably the only judge, of the evidential state of play. The police have a view, of course, but the DPP is the one who we should listen to on this point, and successive directors have opposed the proposed changes.
The official position of the police via the ACPO is now merely that the extension to 42 days would be advantageous, and it would be from the standpoint of purely investigative procedures alone. However, I have to tell this House that numerous chief constables have told me privately that they see no reason for the extension and that they do not support it. As an aside, I can only say would that some public servants were less afraid of speaking out openly.
Fourthly, as for the suggested mechanism by which the Government would seek to extend from 28 to 42 days—it is set out in Clause 23 and thereafter—frankly, I have nothing but scorn for it. It is a Byzantine procedure that seeks to give Parliament a quasi-judicial role and runs grave risks of breaching sub judice arrangements. It has been roundly condemned, in particular by Mr Andy Hayman, who until recently was the assistant commissioner in the Metropolitan Police charged with co-ordinating all national counterterrorism operations. In a long article in the Times on 6 October, he wrote a number of things in virtually rubbishing this Bill. He wrote:
“The Bill is about politics and it won't work”.
- “the Government's current proposals are not fit for purpose: they are bureaucratic, convoluted and unworkable”.
I invite noble Lords to agree with me that he should know what he is talking about.
Baroness Ramsay of Cartvale: Does the noble Lord not agree that Andy Hayman also made it very clear that he still believes that more than 28 days is necessary? Andy Hayman is concerned about the administration and the points that have been put into the Bill, but he still believes, as he believed when he argued for 90 days, that we need more than 28 days.
Lord Dear: I am grateful to the noble Baroness for telling me that. I knew it, and I was going to comment on it later. Andy Hayman said that the mechanism to try to move the timescale from 28 days to 42 was, I repeat,
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He went on to say of the proposals that,
The full text is in the Times of 6 October, and I refer the noble Baroness to it.
Andy Hayman was making the same point as ACPO, which said that it would like some sort of mechanism that took us into an area of certainty if we were running up against the 28 days. That was my next point: to ask your Lordships why we should embark on such a course, if we were ever to face running out of time at 28 days, when the existing law can come to our aid. One can use existing law. As it is almost inconceivable that we would hold anyone in custody at the 27-day—not the 28-day—point without there being some evidence against them, one should simply charge them with the lesser offence under terrorism legislation. There are many possibilities—membership of a proscribed organisation, possession of material, preparatory acts and so on—that one might call the second division of terrorist offences, falling short of the gravest of those offences.
One therefore charges the lesser offence and continues the investigation, and if evidence of a more serious offence comes to light, one charges that later. The point is that at the time of the first charge, the 28-day clock stops running. In fact, all clocks in that judicial sense stop running. The defendant now has access to legal representation and appears before a court. In short, he is in the normal judicial process. The noble and learned Lord, Lord Lloyd of Berwick, will shortly propose an amendment that will allow post-charge questioning in circumstances with a judicial overview, and I shall support him. Again, the existing law, with only a very slight amendment, can quite adequately give us the flexibility that we need without adding the inflammatory words “42 days”.
That is my fifth point; those words would most certainly be inflammatory, and would almost certainly give ammunition to those who seek to justify acts of terrorism against us—those who, in other words, seek to recruit others to oppose what they contend is our repressive regime—and it would be an act of sheer folly to provide them with such a gift.
I have made five points so far: we have never come close to running out of time, and if we did we could use the existing law; no other common-law country has more than a 12-day limit; there is massive opposition to this suggestion from some of the most influential and respected quarters; the suggested mechanisms, or procedures, are unworkable; and there is a risk of a fundamental backlash. This legislation is fatally flawed, ill thought through and unnecessary.
I said that I had six points. My sixth point is that, perhaps worst of all, the legislation seeks further to erode fundamental legal and civil rights that have been the pride of this country for centuries. Simple mathematics will tell us that 793 years ago Magna Carta declared in one line:
“'To no one will we sell, to no one deny or delay right or justice”.
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