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Lord Davies of Oldham: My Lords, Washington’s perspective on foreign affairs will of course be a little different from London’s. The noble Lord has indicated those other relationships to which the United States attaches proper importance, but he will also recognise the special dimension to the relationship between the United Kingdom and the United States, on which we hope to build further. It is entirely possible and compatible for the United States to develop its relationships with other significant actors on the world stage while at the same time looking to Britain to produce a productive partnership with it in crucial areas.
Baroness Symons of Vernham Dean: My Lords, will the Government also continue to press on other, very distinct differences that we have had with the United States on foreign policy? I am thinking in particular about the International Criminal Court, the protocols on chemical and biological warfare, and, of course, policies concerning Cuba. I hope that those will be pressed.
Lord Davies of Oldham: My Lords, my noble friend has accurately identified areas in which British policy has differed from the United States. We think that it is likely that the United States will adopt strategies that are rather closer to the ones that we have recommended and followed in recent years.
Lord Howell of Guildford: My Lords, does the Minister agree that one way of meeting President Obama’s obvious wish to make America more of a team player, with less emphasis on going it alone, will be for us here in Britain to work even more closely with our French friends and allies across the Channel and to build on the very close links that we already have on energy, defence procurement and so on? Does he accept that practical Anglo-French co-operation is one of the best ways of carrying Europe forward, and that it will get stronger still under the next Conservative Government?
Lord Davies of Oldham: My Lords, the influence of Kenneth Clarke obviously runs very strong in the Conservative Party, even in the Upper House. I am delighted to see the noble Lord putting forward such a positive agenda for Britain’s co-operation with Europe in effecting policies in the world, in which we clearly see a European voice having an important dimension.
Lord Hamilton of Epsom: My Lords, the Minister mentioned Guantanamo Bay. Will the British Government undertake to lean on our European partners to take prisoners from Guantanamo Bay who are their nationals?
Lord Davies of Oldham: My Lords, the noble Lord will know the position of the British Government with regard to our nationals. There has been reluctance among several major European states in that respect. We take the view that each state must take responsibility for its nationals, and we look forward to achieving the objective outlined by the noble Lord.
Lord Avebury: My Lords, has the Minister noted President Obama's offer of special assistance to the Government of Pakistan in combating extremism?
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Lord Davies of Oldham: My Lords, we certainly welcome the fact that President Obama is indicating a fresh perspective with regard to Pakistan. Of course we have exactly the same analysis as the United States of the action that needs to be taken, some of which can be taken only by the Pakistan Government, to restrain the training grounds for terrorists. That is an area in which we would expect the Americans to take the lead, because they have a closer relationship with Pakistan on such matters, but we will do our bit.
Israel and Palestine: Detained Parliamentarians
Question
3.01 pm
To ask Her Majesty’s Government whether they will renew their request to the Government of Israel to release all detained Palestinian parliamentarians, with a view to establishing a permanent ceasefire and a single Palestinian negotiating platform.
Lord Davies of Oldham: My Lords, we welcomed Israel's release of two Palestinian Legislative Council Members in June. We continue to call for all elected PLC members detained by Israel to be either released or subject to due legal process. We support current efforts led by Egypt aimed at establishing a permanent ceasefire and encouraging Palestinian national dialogue.
Lord Hylton: My Lords, I thank the noble Lord for his reply. Does he agree that current and former detainees can often be more realistic than some of those presently at liberty? Does he recall that the then Secretary of State for Northern Ireland went to the prisons to talk to convicted offenders around the time of the Belfast agreement? Will Her Majesty's Government recommend to the Government of Israel a similar approach to people who have not even been charged?
Lord Davies of Oldham: My Lords, the parallel between Palestine and Northern Ireland is often drawn; I am not sure that it has total validity. The noble Lord will recognise one crucial difference: the British Government had established a position for the resolution of the Northern Ireland situation before dealing with those in prison, but we cannot see that Israel has established that framework yet. However, the noble Lord is right that those whom states imprison are often the leaders with whom they subsequently negotiate.
Lord Janner of Braunstone: My Lords, does my noble friend agree that the current Egyptian-brokered ceasefire negotiations between Israel and Hamas should be used to resolve all outstanding issues? Surely that must include the immediate release of Corporal Gilad Shalit, who was captured by Hamas in June 2000, before any Hamas parliamentarians were detained? Are Her Majesty's Government pressing for the release of Corporal Shalit?
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Lord Davies of Oldham: My Lords, my noble friend, with his knowledge of the Middle East, will know just how significant is the Egyptian role in the ceasefire, which remains fragile and must be the Egyptian Government’s priority at present. It would be looked on as a little odd if Britain identified as a major issue the question of the release of the individual whom my noble friend identified. It is not that the matter should not be addressed, but that it is a little premature when there are so many substantial issues that need to be resolved in the present crisis between Israel and Palestine.
Lord Campbell of Alloway: My Lords—
The Minister of State, Department of Energy and Climate Change & Department for Environment, Food and Rural Affairs (Lord Hunt of Kings Heath): My Lords, perhaps we could hear first from the noble Baroness.
Baroness Northover: My Lords, thank you. Does the noble Lord agree that the quartet was warned, not least by distinguished Members of your Lordships’ House, about the dangers of dividing the Palestinians one from another? Does he also agree that the time has come to set aside inappropriate preconditions put on Hamas and bring them properly into the peace process?
Lord Davies of Oldham: My Lords, the noble Baroness will recognise that as a result of the developments of the last few weeks, it is quite a considerable challenge that she identifies. I am not sure that she is right to suggest that the quartet was following a mistaken strategy in these terms, but it is certainly the case that the international objectives of a two-state solution of Israel and Palestine can only be achieved when effective negotiations take place, and of course at present, Hamas is the elected authority of the Palestinian people.
Lord Campbell of Alloway: My Lords, is the noble Lord aware of prisoners of war ever having been used as hostages? It is not really in the interests of them and their possible release to discuss openly what any Government should do; it should be left to diplomacy.
Lord Davies of Oldham: My Lords, I think the whole House will appreciate that testimony, coming from where it does, and I am grateful for the point the noble Lord makes.
Lord Dykes: My Lords, will the Minister also look into the question of all the Palestinian detainees held in Israeli prisons—some of them without due process—which amounts to around 9,000 people, some of them being held for many years? That is equivalent, pro rata, almost to double the entire prison population of the United Kingdom.
Lord Davies of Oldham: My Lords, I think the whole House appreciates the range of injustices that revolve around the Israel and Palestinian problem. It is easy to identify the injustice perpetrated by one side and then for some other source to identify a counterposition. At this stage, it is inevitable that the authorities concentrate on the serious issues that need
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Baroness Symons of Vernham Dean: My Lords, with the leave of the House, may I ask my noble friend if he will reflect on the point he made a moment ago, that Hamas is actually the authority in Gaza and not of the Palestinian people? I do beg the House’s pardon.
Lord Davies of Oldham: My Lords, I am grateful to my noble friend. I was struggling for an opportunity, but unfortunately neither of the two questions which were subsequent to my mistake quite gave it to me. I apologise to the House for that slip.
Banking Bill
Bill Main Page
Bill as Amended in Committee
Explantory Notes
Amendment Paper
3rd Report from Constitution Committee
Report (2nd Day)
3.08 pm
Clause 75: Power to change law
Lord Howard of Rising: My Lords, I will also speak to Amendment 55. Amendment 54 would omit Clause 75(3). This subsection allows Her Majesty’s Government to amend any law retrospectively. The Minister has pointed out that this clause can be used only within narrow limits and would not be used to amend the safeguards in the Bill. However, subsection (3) refers to subsection (1), which says “amend the law”, so not only banking law but a much broader picture has to be considered. There is nothing narrow about this.
If there is a severe danger of financial collapse and unforeseen circumstances arise, there is nothing to stop Parliament being recalled and the necessary powers being put in place. That is why there is the power to recall Parliament to cope with unforeseen emergencies. There has been talk about the cost and the difficulties of this, but these are small matters compared with the surrender of democracy that is proposed.
I wondered when reading Hansard whether the Minister and I were discussing the same clause. The Minister justified the inclusion of retrospective legislation by citing the precedents of the Safeguarding Vulnerable Groups Act 2006 and Section 148 of the Criminal Justice and Immigration Act 2008. The Government’s arguments that these are precedents for Clause 75 are baffling. The examples contain nothing of a retrospective nature. The Minister compared retrospective legislation with the effect on a contract of employment if there was a change in taxation. That is no comparison, because the employee would pay the revised tax rate from the date of the introduction of the new tax, not on previous earnings. I do not think that the Minister was proposing that a poor worker should have to pay a
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When we debated the clause in Committee, more than one noble and very experienced Lord commented that they had not previously seen such legislation as this clause proposes. The Minister has repeatedly emphasised the need for flexibility to deal with unforeseen circumstances and has not yet justified this massive departure from the democratic processes of this country. The Minister gives assurances about how the legislation will and will not be used. As my noble friend Lord Forsyth pointed out, how can the Minister give assurances when he has no idea what the events will be over which he is giving the assurances? I beg to move.
The Lord Speaker (Baroness Hayman): My Lords, I inform the House that if Amendment 54 is agreed, I cannot call Amendment 55 by reason of pre-emption.
Lord Goodlad: My Lords, Amendment 55 stands in my name and the names of the noble and learned Lord, Lord Morris of Aberavon, and my noble and learned friend Lord Lyell of Markyate.
Your Lordships’ Select Committee on the Constitution reported to the House on this Bill on 22 January. I wrote to the Minister that day on behalf of the committee. First, we asked for the Government’s view ahead of Report on whether the currently drafted broad and far reaching wording of Clause 75(3) could be limited in terms of the scope of the envisaged retrospective powers. Secondly, the committee expressed the view that it would be helpful if the Government were to provide the House with illustrations of the circumstances in which they envisage that a retrospective power might be used. I fully understand the difficulties that have prohibited the Minister from providing a substantive reply.
3.15 pm
Your Lordships’ Select Committee agreed with the assessment of the Delegated Powers and Regulatory Reform Committee that Clause 75, which empowers the Executive by an order laid before Parliament to,
in any Act of Parliament—other than that which will become the Banking Act 2009—delegated legislation or the rule of common law, is an “extremely wide power”.
It was the view of the committee that our constitution does not include an absolute prohibition on Parliament giving the Executive power by order to repeal, disapply or otherwise amend Acts of Parliament, delegated legislation or the common law. However, we believe that constitutional principle requires, first, that any such power should be granted by Parliament only where there is a compelling justification; secondly, that the scope of the power should be limited to the minimum necessary to meet the pressing need of such an exceptional measure; and, thirdly, that any order made should normally be subject to parliamentary control, either by negative or affirmative resolution.
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Your Lordships’ committee took the view that there needs to be a compelling reason in the public interest for a departure from the general principle that retrospective legislation is undesirable, that there is a heavy onus on the Government to justify to the House why a retrospective provision of such breadth as that in Clause 75(3) is required in the context of this Bill, and that further consideration should perhaps be given to narrowing the retrospective nature of the Bill. Further, on the basis of the arguments advanced by the Government so far, notably by Ian Pearson, Economic Secretary to the Treasury in another place, we are unpersuaded that this burden has been discharged.
On 20 January, your Lordships’ committee welcomed the Government’s indication that they will re-examine the clause to consider whether a more limited and targeted retrospective power could fulfil the public interest. We look forward to the response of the Minister.
Lord Morris of Aberavon: My Lords, as a member of the Constitution Committee, I support the noble Lord, Lord Goodlad. I seek clarification, as does the committee and as he indicated, of the meaning of “desirable”. It seems to me, first, to be as open-ended as a word can be. One is never happy to see words like “desirable” in legislation. Secondly, they are very subjective. Thirdly, many things are desirable. We desire all sorts of things which may not be strictly necessary. One is in a wholly different world when one compares what is desirable and what is necessary.
I echo the words of the noble Lord, Lord Goodlad. Many of us in the committee—and by tradition we lawyers—are nervous of anything that is retrospective. But, of course, this is not a penal clause. Had it been a penal criminal clause, we probably would have much stronger views. I reiterate the words of the noble Lord that the committee was not against retrospection in principle. There may be circumstances where retrospection is necessary. Anyone who has listened to what emanated from Davos will be abundantly clear in his or her own mind that some of the great financial geniuses of the world do not know exactly and confidently where they are going. In those circumstances, there may be a need for a clause to ensure that the Government of the day may be able to bring in powers where they are necessary, because we just do not know what is necessary. But I would need great persuasion to accept the word “desirable” in a statute of this kind.
Lord Barnett: My Lords, I very much agree with all that my noble and learned friend Lord Morris of Aberavon and the noble Lord, Lord Goodlad, have said. Although retrospective legislation can be acceptable, as my noble and learned friend said, we should not take it lightly. I certainly do not like the idea of it. However, I make it quite clear that I have no love for either the financial geniuses or the bankers who have been running banks in recent months and years, so I would not be opposed to imposing legislation that would help us in relation to what has happened with the banks.
Amendment 55 is much more modest than Amendment 54. I congratulate the noble Lord, Lord Howard of Rising, and his noble friend Lady Noakes on their assiduity on this Bill. They have worked very
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Let me mention one or two issues. There is the question of whether the banks are revising their lending habits. There is the question of whether quantitative easing—sometimes called printing money—should be carried out; some clever geniuses are suggesting that it should, as noble Lords will have seen in the press recently. There is the question of whether we should increase or reduce government debt, as the Opposition want. What is the Government’s strategy for banks? We are told by the FSA that the banks are repossessing on a vast scale: 1,000 houses a week are being repossessed. These are all major banking issues, which we have no time to debate. We are debating only these technical issues and I regret that we do not have more time to discuss the major issues. Having said that, and not wishing to delay the House any longer, I make it clear that I very much agree with what has been said so far. I look forward to my noble friend’s reply.
Lord Lyell of Markyate: My Lords, my name is on the Marshalled List and I strongly support what my noble friend Lord Goodlad and the noble and learned Lord, Lord Morris of Aberavon, said, as well as what my noble friend Lord Howard of Rising said in opening this matter. Clause 75(3) says:
“An order under subsection (2)(c) may make provision which has retrospective effect in so far as the Treasury consider it necessary or desirable”.
I say yes to the “necessary”. However, we have had no explanation of why the words “or desirable” are necessary or what they are intended to add. We have had no examples so far. I am a little surprised at why this retrospective power is thought necessary. I am prepared to go along with the fact that it probably is necessary, so long as it is subject to adequate parliamentary control; that question will be covered in our next group of amendments. To go beyond what is necessary is to go beyond the traditions of either House of Parliament.
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