My Lords, I wish to speak to Amendments 44 and 51A, which are in the name of the noble Lord, Lord Anderson, and to which the noble Lord, Lord Fox, and I have added our names. They very neatly follow on from Amendment 43, which has just been moved by the noble Lord, Lord West of Spithead, and are based on a recommendation in the report by the noble Lord, Lord Anderson, in which he says at paragraph 8.20:
“I recommend the use of a deputy to be permitted for the purposes of the triple lock when the Prime Minister is unable”—
I stress the word “unable”—
“to approve a warrant to the required timescale (in particular through incapacity, conflict of interest or inability to communicate securely)”.
These amendments are prompted by the fact that, instead of the word “unable”, which was that chosen by the noble Lord, Lord Anderson, for the recommendation in his report, and which is also used in Amendment 43, the word that appears in Clause 21 for condition A in the new subsection (3) of Section 26 is “unavailable”. The same point arises with the wording of the triple lock in relation to equipment interference which Clause 22 seeks to introduce, under Section 111 of the 2016 Act. The word “unavailable” would be replaced with the word “unable” in both places by the amendments from the noble Lord, Lord Anderson.
This is all about the meaning of words. The aim must surely be to find the right word to use for describing the situation in which the Prime Minister’s function of giving the necessary approval must be passed to another individual, other than the Secretary of State who has applied for the warrant. This is, of course, a very sensitive matter, and that in itself indicates the importance of choosing the right word.
The question is whether the phrase
“unavailable to decide whether to give approval”
covers all possible situations. The word “unable” includes “unavailable”, but “unavailable” does not always mean the same as “unable”. The word “unavailable” sets too low a bar. The Prime Minister could be unavailable simply because he or she is doing something else—whatever it might be—that is occupying their mind or demanding their attention elsewhere.
On 11 December 2023, the Minister sent a letter to the noble Baroness, Lady Drake, in response to points raised on this Bill by the Constitution Committee, which gave examples of prime ministerial unavailability. Attached to that letter was a commentary on the proposed amendments to Sections 26 and 111, in which the point is made that the word “unavailable” should be understood to mean situations—of which two examples are given— in which the Prime Minister is “genuinely unavailable” to consider the application. The introduction of the word “genuinely” demonstrates the problem with the word “unavailable” on its own, to which the noble Lord, Lord Anderson, draws attention: it needs to be narrowed down and clarified. That is what the word “genuinely” does, but it is not in the Bill.
It is worth noting that, in each of the two examples given in the commentary, “unable” is used to describe situations Prime Ministers may find themselves in which they cannot perform the function to which the statute refers:
“5.1 The Prime Minister is overseas in a location where they are unable to receive the warrant application due to the security requirements and classification of the documents.
5.2. The Prime Minister is medically incapacitated and therefore unable to consider the warrant.”
The fact that “unable” is used here suggests that the word the noble Lord, Lord Anderson, used in his report really is the right one for the situations referred to in these two sections.
There is a further point that the noble Lord, Lord Anderson, would make: “unavailable” does not cover the situation in which there may be a conflict of
interest. This surely is a reason why a Prime Minister, although available, should not exercise the power. Here especially, the greater clarity that the word “unable” brings to the situation really is needed.
I know that the Minister has discussed this issue of the wording with the noble Lord, Lord Anderson, perhaps several times and will, no doubt, refer to the position he and his Bill team have adopted so far during these discussions when he replies. But I hope he will feel able, especially in view of the points I have made about the commentary attached to his letter of 11 December, to agree to another meeting with the noble Lord, and possibly myself, before the Bill reaches Report. I hope that, when he comes to reply, he will be able to respond to that request.