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Lord Taylor of Holbeach: My Lords, I do not wish to pick an argument with the noble Baroness, but that is not the case. We are reasoning on the argument, and I am afraid that the argument presented in her amendment does not warrant our support. We believe in a high level of protection, and we believe that the Bill provides us with a better chance of achieving that protection than her amendment would facilitate. Indeed, it could be a threat to protection elsewhere. I wish that she had listened to the arguments that I presented.

Baroness Miller of Chilthorne Domer: My Lords, I did listen to the arguments, and it did not lessen my disappointment, because what the Conservative Front Bench has given us is the view that there should be no top restriction on red tape such as licence applications. The noble Lord does not agree with me, and I will not labour the point; I would rather turn to the Minister’s comments.

The Minister said that he did not want a two-tier system, but there will be a multi-tier system. I am asking simply for recognition in legislation of the top tier. The Government are ignoring the evidence from around the world that for full benefits, you need full protection. That experiment can never take place unless you recognise it.

The Minister stated that there could be changing levels of protection over time. That is exactly what I am afraid of. If you have an area that is exhibiting what Defra calls,

a changing level of protection over time could only mean a lessening level of protection. In other areas, it might mean that the damage occurs first, and then you protect it later. In some areas—

Lord Hunt of Kings Heath: My Lords, I am grateful to the noble Baroness for giving way. It might also mean that, in the light of experience or new scientific knowledge, the protection of some marine conservation zones may be mightily enhanced. The noble Baroness is arguing for two different designations; I believe that it is much better to have a more flexible approach where, in the cases of the marine areas that the noble Baroness has referred to, you can make stringent conditions in relation to licensable activities. The problem with the approach of the noble Baroness is that it would lead to greater confusion. As the noble Lord, Lord Taylor, suggested, a perverse incentive could result from having an ordinary—or lower—level marine conservation zone.

Baroness Miller of Chilthorne Domer: My Lords, I do not think that we will agree on this. It is not what I think that counts, but what the scientists in all the countries in the world who did the work—particularly in New Zealand—came out with. It is universally recognised that there are places where you need a level of protection against, for example, trawling, but where many other activities could take place. In a normal conservation zone you could admit human activity such as sailing, canoeing and so on, and the species and what you are trying to protect in that area of sea will be fine. Other areas will merit a higher level of protection.

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I can see that I will not win the argument with the Government. We have failed to get Conservative support. However, all those people who lobbied so hard for the Bill—for example, members of the Wildlife Trust or the Marine Conservation Society, and others who simply want to see marine areas deliver what science has proved that they can—will need to lobby their MPs and see if this can be changed in the other place.

I can see some of the Minister’s argument, but behind it are other worries. I have no idea whether they concern the Crown Estate or other lobbies, but there is no reason why the Government could not designate a special category for very special places, just as we do in the terrestrial area.

Lord Hunt of Kings Heath: My Lords, I am grateful to the noble Baroness. I do not know whether she will push this to a vote: I rather hope that she does, because we have identified a clear division and it would be useful to air it. However, I will reassure her on this matter. I know that she has strong views about the Crown Estate, which we might be debating later. The Government’s attitude has nothing to do with concerns expressed by the Crown Estate or any other body. We want this to work and we think that we have the right mechanism. In the cases that the noble Baroness described, where a very high level of protection is required, there is nothing in this Bill or anything that any Minister has said that detracts from that possibility. She needs to be very careful about the kind of perverse incentives that would be put in place if we had a two-tier approach to the system.

7.30 pm

Baroness Miller of Chilthorne Domer: My Lords, I shall not press this amendment to a Division, because I can see that we are a small number here in support of it. I shall not take up the time of the House with a Division. All I can do is to urge all Members in the other place to look at the scientific evidence from around the world and to support this concept and try to persuade the Government. In the mean time, I beg leave to withdraw the amendment.

Amendment 110A withdrawn.

Consideration on Report adjourned until not before 8.30 pm.

Privy Counsellors

Question for Short Debate

7.30 pm

Tabled By Lord Rodgers of Quarry Bank

Lord Rodgers of Quarry Bank: My Lords, I am particularly grateful to the Lord President for replying to this modest debate when she has so many heavy responsibilities. Let me explain the occasion that prompted me to initiate this debate. It was the news last summer

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that Ministers would table a number of late amendments to the Counter-Terrorism Bill 2008. The object was to make 42 days of detention more palatable to the House of Commons Back-Benchers by strengthening the safeguards through parliamentary scrutiny. In new Clause 26, it proposed that the chairmen of three Commons Select Committees should receive confidential briefing on Privy Council terms. In the event, Part 2 of the Bill was abandoned, and I am not pursuing the substance of the matter. My long-standing concern—I had it long before the BBC thought up this morning’s Radio 4 programme—is the wider role of privy counsellors. I want to know what privy counsellors are for.

Is membership of the Privy Council a titular honour—“the right honourable”—and a reward for public and political service, which is usually assumed? Or does it have, or should it have, a potentially significant function within the processes of government? I have wondered about this since I became a privy counsellor more than 30 years ago.

I refer, if I may, to my own experience. In a conversation with Harold Wilson, then Prime Minister, when he proposed to make me Minister of State for Defence, I asked whether I would become a privy counsellor. He hesitated for a moment and then said, “Soon”. I saw it as he saw it—as an honour—and I was very pleased when I was appointed a year or so later. But on the very day of the announcement of my appointment, the chief scientist at the Ministry of Defence, Sir Hermann Bondi, came into my office and said that he was delighted because I could now take the chair for a crucial and difficult meeting to resolve a dispute between the scientists and the Navy over the top-secret Chevaline nuclear weapons project. Clearly, I now had a practical and very sensitive role, although it seemed that I had been appointed a privy counsellor only as an honour.

In due course, I must have taken the privy counsellor oath to “keep secret all matters” and to defend Her Majesty against,

But I was still the same man. I had been positively vetted and had read top secret telegrams years before when I was a Parliamentary Under-Secretary in the Foreign Office. So, on the face of it, you could deal with highly confidential and security matters before becoming a privy counsellor. The members of the council all seem eminently respectable, but not necessarily men and women best suited to deal with security matters.

I shall look at some of the members of the present Government and assume that membership of the Privy Council is the dividing line between taking the Privy Council oath—proposed for the three chairmen in new Clause 26—and not having done so.

The Counter-Terrorism Bill was taken through this House by the noble Lord, Lord West of Spithead, whose special responsibilities include counterterrorism, science and technology. But he is not a privy counsellor; he is on the wrong side of the line, despite his distinguished, very senior naval career. Is he not appropriate or permitted to deal with such secret matters? My noble friend Lord Carlile of Berriew, though not a Minister,

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is appointed to be the independent reviewer of anti-terrorism legislation. He is certainly involved in secret matters but, like the noble Lord, Lord West, he is not a privy counsellor. The noble and learned Baroness, Lady Scotland, is a privy counsellor as Attorney-General, and deals with a wide range of sensitive matters, but the Solicitor-General, Vera Baird MP, is not, although she may be required to exercise exactly the same statutory powers as the Attorney-General. Is she not appropriate or permitted to deal with such legal and justice matters, discussing them with the Home Secretary or the Lord Chancellor? Of course, it is nonsense.

On 5 October last, a press notice came from No. 10 saying that Her Majesty the Queen had approved eight new privy counsellors. I shall not mention their names now, because I am concerned only with the principle, but several of them moved up the ministerial ladder, several moved sideways, and one left the Government altogether. What common quality was there between the eight who entered the Privy Council? I can find none. There are some 550 members of the Privy Council, but there is no limit to numbers and 42 new appointments were made in the past two years. The Prime Minister of the day can appoint whoever he likes, and as many as he likes, with no explanation. There is an elaborate and lengthy bureaucratic process by which suitable men and women are carefully considered with a view to an honour at the New Year and the Queen’s Birthday. They extend from an MBE to a Companion of Honour—a CH—but candidates for the Privy Council are not included. The Prime Minister makes the decisions and recommends the names to the Queen—and, following tradition, includes the two distinguished Primates, the Archbishops of Canterbury and York, and the Bishop of London.

All privy counsellors are equal, but some seem to be more equal than others. In a debate on the Civil Contingencies Bill in 2004, the noble Lord, Lord Bassam of Brighton, speaking for the Government, said that a “senior privy counsellor” would annually review the operation of the Act. It was news to me that there were junior and senior privy counsellors. I would therefore be grateful if the Lord President could confirm who are the junior and who the senior privy counsellors. Is it a matter of chronology in appointment, or is there some other factor?

If the Prime Minister refers to Privy Council briefing, as he sometimes does, it does not mean all members of the council but a selected few. When the council meets at Buckingham Palace in the presence of the Queen to transact legislative business, only a handful of ministerial privy counsellors attend. If others tried to join them, they would be excluded, although all privy counsellors are supposed to have direct access to Her Majesty.

I remember a splendid banquet in the Royal Gallery of the House on the Queen’s Jubilee, when all members of the Privy Council seem to have been invited, but there has been no other collective occasion for very many years. The whole council is summoned to a formal meeting only to proclaim a new monarch or to consent to a Royal marriage. Privy counsellors play no part in the Privy Council Office and I am sure that most of them have never visited it.

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I am not diminishing the function of the Lord President’s office, because it does some very useful work in regulating chartered bodies, charities and other institutions. Nor am I concerned now about the Judicial Committee of the Privy Council, which is seen to be controversial. It is the role of the individual privy counsellors that is the subject of this debate.

Anyone who is invited to be a privy counsellor is delighted. I remember one new privy counsellor was so enthusiastic that he foolishly tried to personally amend his passport, causing rather a fuss. And I did not complain when I was upgraded by American cabin staff on a flight from Chicago to Seattle when I was asked the significance of “right honourable”. I do not want to lose our little pleasures, but I repeat: what are privy counsellors for?

7.41 pm

Lord Norton of Louth: My Lords, I congratulate the noble Lord, Lord Rodgers of Quarry Bank, on raising this question. This is a timely opportunity to look at what privy counsellors do and, perhaps of greater importance, what they could do. In some respects, privy counsellors are similar to the Members of the House of Lords. I appreciate that the two categories are by no means mutually exclusive. Privy counsellors comprise a large body of distinguished public servants—not quite as many as Members of the House of Lords but, at approximately 550, still a large number—and have an institutional framework. They also have a judicial arm. Like in the House of Lords, meetings are subject to a small quorum.

However, unlike the House of Lords, the Privy Council is arguably a somewhat shapeless body, certainly not one that is utilised as effectively as it might be. The council itself, as the noble Lord indicated, has an important formal role. As Bradley and Ewing note in the 14th edition of Constitutional and Administrative Law:

The role of privy counsellors, other than the four or so summoned to attend meetings of the council, is less clear. There appear to be two principal purposes for creating privy counsellors. One is as a reward for notable public service. In this sense, being made a member of the Privy Council is an honour on a scale similar to some others announced in the Queen’s Birthday and New Year’s Honours Lists. The other is to enable members to be briefed confidentially, not least on issues of national security. The crucial element is the oath, which I gather dates from 1250 and which, to quote Peter Hennessy in his massive tome titled Whitehall, “has life and bite”. He sees it, somewhat negatively, as encouraging closed government, but it does enable confidential information to be shared. That is the reason for making the leaders of opposition parties privy counsellors and, on occasion, other parliamentarians and sometimes people outside Parliament. In the 1970s, Len Murray, the general-secretary of the TUC—later Lord Murray—was made a privy counsellor to facilitate consultation on government policy. It also justifies the composition of the Intelligence and Security Committee.

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There does not appear to be much beyond that in terms of a functional role, and even that utility is sporadic rather than regular. It is, in effect, an underused resource. What I wish to raise is how it may be used in the future.

There have been occasions when privy counsellors have been drawn on to form or participate in public inquiries. Non-statutory inquiries undertaken by a panel of privy counsellors include the inquiry into the interrogation of terrorists, under Lord Parker of Waddington, in 1971; the Falklands Islands review, under Lord Franks, in 1982; and the review of intelligence on weapons of mass destruction, under the noble Lord, Lord Butler of Brockwell, in 2004. There are various advantages to utilising privy counsellors in this way. There is a substantial pool on which to draw. One can utilise privy counsellors with relevant skills, including those of forensic questioning. Utilising a panel of privy counsellors has advantages over the use of judicial and parliamentary inquiries. Inquiries by judges can make a substantial drain on judicial resources, especially where, as in the Saville inquiry, they are lengthy and, if on contentious issues, may draw judges into areas of public and political controversy. Parliamentary committees are not necessarily geared to fault-finding exercises and may not be in a position to receive confidential information. Demands on members’ time may also prevent them being able toengage in scrutiny of large numbers of documents and embark on time-consuming inquiries.

There are thus advantages to drawing on privy counsellors to undertake certain inquiries. This has been recognised, not least by the Public Administration Committee in the other place. In its report on Government by Inquiry in 2005, it recommended that inquiries into the conduct of Government should not be left to Ministers, but rather should be undertaken by a parliamentary commission of inquiry composed of parliamentarians and others. It acknowledged the problems associated with inquiries undertaken by Select Committees.

It returned to the subject in its 9th report of last Session on Parliamentary Commissions oflnquiry, arguing that Parliament should devise a mechanism so that it could instigate, as necessary, parliamentary commissions of inquiry with enforceable powers to summon witnesses and access papers and to meet in private, as necessary. It argued in paragraph 7:

“Inquiries initiated by Parliament are especially suitable for investigating topics that have a political dimension. As we have already observed, it is more legitimate and serves the interests of accountability more effectively for Parliament, rather than the Executive, to inquire into the actions of executive government. Where politically sensitive subjects are concerned, parliamentary inquiries are also preferable to judicial ones”.

It also turned to the issue of membership and here was more explicit than in its earlier report. It recommended in paragraph 17, and I quote the recommendation in full:

“We believe that decisions about the membership and chairmanship of a Parliamentary Commission of Inquiry should be undertaken carefully in order to avoid the Inquiry being undermined by partisanship or political concerns. To operate effectively, a Parliamentary Commission of Inquiry should consist of a Committee of Privy Counsellors appointed by Parliament. Individuals could be made Privy Counsellors in order to serve on

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an inquiry of this nature. Members should be drawn from both Houses of Parliament, with external members appointed where appropriate for their specialist expertise”.

In its response in October of last year, the Government noted that creating such commissions was essentially a matter for Parliament, although they did say that they did not share the committee’s view that it was more legitimate and serves the interests of accountability more effectively for Parliament, rather than the Executive, to inquire into the actions of executive government. It offered no justification for its view and seemed unaware that the very basis of the case for parliamentary inquiry was implicit in its own observation. There is an obvious case to be made that the executive inquiring into the executive is not the best basis for enhancing public confidence in an inquiry.

On membership of a parliamentary commission of inquiry comprising privy counsellors, the Government’s response noted that membership of the Privy Council was conferred by the Queen, acting on the advice of Ministers. It continued:

“There would be an issue to be considered about whether it would be appropriate to confer this status on someone for the purposes of undertaking a specific task. Parliament itself could not make a recommendation for Privy Council membership, still less confer the status”.

There are two responses to this. First, the Butler commission was established to fulfil a specific task and membership of the Privy Council was conferred on those members who were not already privy counsellors. Secondly, the occasions when a commission is formed with one or more members who are not privy counsellors may be extremely rare and, if necessary, may be engineered in order not to be necessary at all. Given the size and quality of the existing membership of the Privy Council, there should be little difficulty crafting a panel comprising parliamentarians and some outside experts, all of whom are privy counsellors.

The idea of utilising privy counsellors in this way is not new. In his book Constitutional Practice, published in 1988, Professor Rodney Brazier wrote that some inquiries would be better undertaken by senior privy counsellors on behalf of Parliament. The proposal thus has some serious support.

My basic point is that there is a case for making greater use of privy counsellors, utilising them in effect as a standing panel, available to be drawn on as appropriate to form parliamentary commissions of inquiry. That may not necessarily be their only use. Some bodies have suggested drawing on them for other purposes. There may be a case for a wider review of what use can be made of the Privy Council, but there is already a clear case for utilising it for what it is—a repository of knowledge, drawing on senior public servants drawn from a wide range of backgrounds.

The case for creating parliamentary commissions of inquiry composed of privy counsellors is ultimately a matter for Parliament rather than government. However, as the Lord President of the Council is replying to the debate, she is in a position to offer what I trust will be a helpful response.

7.50 pm

Lord McNally: My Lords, the noble Lord, Lord Rodgers, has got into the habit of using these debates to provoke thought and debate on issues of importance.

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By so doing, there is the added benefit that he coaxes the noble Lord, Lord Norton of Louth, away from academia to put on record his forward thoughts, which are always of interest and importance. As the noble Lord, Lord Rodgers, himself mentioned, we have the excellent timing that Mr Quentin Letts asked pretty well the same question as we are asking on Radio 4 this morning. I understand that you can still hear that programme on the piece of machinery that my teenage son understands but that I have not yet managed to get to work. I am beginning to sound like those old judges who asked “who are the Beatles?”, but noble Lords know what I mean.

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