Tony Wright (Cannock Chase, Labour)

I beg to move amendment 55, page 33, line 22, leave out ', in exceptional cases,'.

Following the tortuous nature of the previous discussion, I offer brevity and simplicity. I also rise to press the merits of an amendment that I assume the Government will have no difficulty in accepting. I simply want to remove the single phrase "in exceptional cases" from the reporting requirements being laid upon the Civil Service Commission, as I can see no reason why it should be included.

In the previous exchanges my right hon. Friend the Minister prayed in aid the commission and said it had raised no issues about the matter under discussion. It is fair to say, however, that it has expressed concerns about its ability to undertake investigations of code-related matters and of civil service-related matters when it thinks it is appropriate to do so and to report on those to the House.

When giving evidence to the Public Administration Committee back in July, the First Civil Service Commissioner said:

"I think we agreed in the end that we might well be involved in an investigation if we saw a matter so serious or in fact so systematic, and I repeat that because, if what we were hearing from any source was that there was a systematic concern, then clearly that would be exactly the kind of issue that might cause the Commissioners to launch an investigation of their own to see just what was going on."

The First Civil Service Commissioner also wrote to me very recently, on 19 October, and stated:

"Despite some concerns about the potential for politicisation and resource constraints, the commissioners recognised that there may be occasions where it would be right for the commission to carry out such an investigation if there were clear evidence of a significant breach of the code. We would therefore support an approach which gave the commission in addition to the duty to consider a complaint from the civil servant—clause 9—the discretion to investigate matters at its own initiation. We would envisage that the commission would want to exercise this discretion only in cases where the burden of suspicion was substantial."

Therefore, we have the commissioners firmly saying that they do think it would be appropriate for them to have the ability to undertake investigations of civil service issues on their own initiative, and by extension to report on such matters under their reporting obligations. We have a similar arrangement with the parliamentary ombudsman, who is a servant of this House. We ask the ombudsman to produce reports on cases and to produce an annual report, but we explicitly give that office the ability to make special reports to the House where there are particular issues it wants to bring to the House's attention. It is entirely sensible and straightforward that we would give a similar provision to the commissioners. They want a provision of this kind and it seems sensible for them to have one, and I am sure the Government cannot think of any reason why they cannot have it. I am simply asking for these restrictive words to be removed from the Bill.

Eleanor Laing (Shadow Minister, Justice; Epping Forest, Conservative)

I rise very briefly simply to support what the hon. Gentleman has just said. I agree with him.

Nicholas Winterton (Macclesfield, Conservative)

That is the briefest speech I have heard.

Michael Penning (Shadow Minister, Health; Hemel Hempstead, Conservative)

I also rise to support the amendment tabled by the hon. Gentleman. When the Minister rises to say whether she supports this provision or not, can she say exactly what the "exceptional circumstances" are? "Exceptional circumstances" could mean something completely different to me, to the Minister, the courts, to the civil service or to the commission. What does "exceptional circumstances" mean? If the Minister can define that exactly in law, the judges will not necessarily have such a field day when this provision comes before them, which I am sure it will.

David Howarth (Cambridge, Liberal Democrat)

I was going to raise exactly the same point, and would simply add this. Who decides whether a case is "exceptional"? If the commissioners decide what is exceptional, the amendment of Dr. Wright does not achieve very much, because it is purely within the commission's discretion to decide. If Ministers are to decide, that would obviously be completely objectionable. Ministers should not be able to make such a decision; that would undermine the commission's independence. If the courts are to decide, that just adds to the complication of the situation without any obvious benefit.

The Minister's choices in replying to the debate appear to be these. She should either say that the commission itself gets to decide what the "exceptional circumstances" are—in which case, why is the phrase in the Bill at all?—or she should just give way to the amendment proposed by the hon. Gentleman.

David Heath (Somerton & Frome, Liberal Democrat)

I am grateful to my hon. Friend for giving way; I just want us to proceed with this debate in good order. Several Members, including my hon. Friend, have used the phrase "exceptional circumstances". Actually, the term in the Bill is "exceptional cases", which is slightly different. It is easier to define "exceptional circumstances" than it is the "exceptional cases" that must be brought to one's attention by the report. In fact, it is even more difficult for the Minister to defend that inclusion within the schedule.

David Howarth (Cambridge, Liberal Democrat)

I thank my hon. Friend, who is absolutely right: the phrase is "exceptional cases", which raises a further question about what kind of case is involved. Does this mean a case brought before the commission on a particular complaint? What other kind of case is it? [ Interruption. ]

Michael Penning (Shadow Minister, Health; Hemel Hempstead, Conservative)

The Justice Minister is indicating from a sedentary position that Members of this House should not stand up and scrutinise the Bill, which gives us an indication of the way this Government are going.

Michael Wills (Minister of State, Ministry of Justice; North Swindon, Labour)

Will the hon. Gentleman give way?

Michael Penning (Shadow Minister, Health; Hemel Hempstead, Conservative)

No, I am not going to give way. I absolutely agree with what David Howarth has just said. The phrase "exceptional cases"—I am sorry, Sir Nicholas, if I slightly misled the Committee when I used the phrase "exceptional circumstances"—makes it even more difficult for the commission to define what it should look at and what it should not. Surely the logical thing to do is to remove this phrase and let the commission decide, which is what it is there for.

David Howarth (Cambridge, Liberal Democrat)

Yes, that is a very good point.

I apologise, Sir Nicholas—I was attempting to make a speech even shorter than that of Mrs. Laing. I failed to do so, but I support the amendment.

Angela Smith (Minister of State (Third Sector), Cabinet Office; Basildon, Labour)

I think I can help hon. Members on this point—again. Let us see whether they will accept these assurances.

Schedule 1 contains provisions relating to: membership of the new Civil Service Commission; the appointment of the First Civil Service Commissioner and the commissioners, and their tenure of office; the status and powers of the commission; the regulation of its proceedings; the appointment of staff; arrangements for assistance; delegation and committees; financial provisions; accounts; publication of the commission's annual report; and transitional arrangements relating to the old Civil Service Commission.

The schedule states that the commission must produce an annual report

"as soon as practicable after the end of each financial year",

and may, in exceptional circumstances—

David Heath (Somerton & Frome, Liberal Democrat)

Cases.

Angela Smith (Minister of State (Third Sector), Cabinet Office; Basildon, Labour)

Cases; my apologies. It may,

"in exceptional cases, prepare a report at any other time about any matter relating to the carrying out of its functions."

Amendment 55, proposed by my hon. Friend Dr. Wright, would delete the phrase "in exceptional cases". Although I think the amendment is unnecessary, we are in agreement about what this provision should mean for the commission. The legislation gives the commission powers to prepare and lay before Parliament a report, in addition to an annual report, about any matter relating to the carrying out of its functions. This reflects the system practice.

Members have asked why the word "exceptional" has been used. The commission has produced an annual report each year since 1855. It covers activities undertaken during the year in upholding the principle that selection for appointment to the civil service must be on merit and on the basis of fair and open competition. The report also covers its other work, such as its role in promoting the core values of the civil service as set out in the civil service code, and a summary of finances during that year.

Since 1855, the commission has never produced an additional report, so by definition, it would be "exceptional" if it were to do so. However, the provision is there in the legislation should it wish to do so. So "exceptional" is a statement of fact, in that to produce an additional report would be exceptional. However, it should be within the power of the commissioners to take that decision if they feel they want to produce another report.

I therefore urge my hon. Friend to withdraw his amendment. The points that he made are covered, in that, if the commissioners want to produce a further report, they are entirely able to do so under the legislation.

Tony Wright (Cannock Chase, Labour)

It is really very difficult to keep a straight face, Sir Nicholas. What is really disappointing is that when the process of this Bill began, all the Front Benchers were saying, "Of course we will be open to amendments. This Bill is not fixed in stone, and we will bring it forward in a spirit of taking sensible amendments." Indeed, when the Cabinet Secretary was in front of our Committee just last week, the same was said when we raised a similar issue with him, so I am afraid there is a mismatch here with the spirit in which we all engaged upon this Bill. There is a genuine desire across the House to get the Bill done. It is rooted in a political consensus, so it is very difficult to understand why the Government want to insist on something that, as the Minister has just described it, is completely unnecessary.

Given that we simply want the commission to be able to make a report if, in certain circumstances, it wants to do so, why on earth would we want to stop it? The commission itself would only do that if it thought the occasion warranted it. We have reached a level of absurdity, and I say to my right hon. Friend the Minister in a spirit of comradeship that resistance is not necessary at this point.

Angela Smith (Minister of State (Third Sector), Cabinet Office; Basildon, Labour)

I shall be brief. My hon. Friend talks of our resisting his amendment, but all I am saying to him is that the points that he has raised are covered in the legislation. There is nothing in the legislation to stop the commissioners, at any time, producing another report if they wish to do so. What he suggests is already covered, so the amendment is unnecessary.

Tony Wright (Cannock Chase, Labour)

In the spirit of not only co-operation and not being difficult, but total mystery, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the schedule be the First schedule to the Bill.

David Howarth (Cambridge, Liberal Democrat)

I wish to raise two points and ask two questions about the schedule. Both points relate to the independence of the commission and both were raised by either the Joint Committee or the Public Administration Committee in their deliberations on the Bill. The first point is about the power of the Government—in this case, presumably the Minister for the Civil Service—over the commission's budget. Can this Minister explain what the procedure will be for setting the commission's budget? Will the Government of the day—the Minister for the Civil Service, in particular—have the power to set conditions on the way in which that budget is spent or to limit the content of the commission's activities using a budgetary mechanism? If that is the case—some concern was expressed on this point by the two Committees—that will, of itself, undermine the commission's independence.

The second point relates to the appointment of the first commissioner, which is obviously an important matter. I understand that the Bill says that the first commissioner is appointed by the Government, after consultation with various other people. A proposal was made—I believe by the Public Administration Committee—that as that was not enough to ensure the independence of the first commissioner, the appointment should be subject to the agreement of someone outside government; one suggestion was that the agreement of the Leader of the Opposition should be required in order to ensure the complete independence of the first commissioner. I have not heard from the Government as to why they rejected that particular proposal, and I wish to ensure that the Civil Service Commission should be as independent as possible.

Angela Smith (Minister of State (Third Sector), Cabinet Office; Basildon, Labour)

Schedule 1 contains provisions relating to the membership of the new Civil Service Commission—the hon. Gentleman mentioned that—and the other issues relating to the appointments that I referred to a moment ago. He asked about the commission's financial independence. Provisions provide for the commission to publish and lay before Parliament an annual report, as has been discussed. As now, that can include a summary of information on the funding of the commission. That is an obvious vehicle for the commission to bring forward any concerns that it might have about the adequacy of its funding or any comments that it wishes to make on the funding. Indeed, an exceptional or special report could be prepared to address those particular concerns.

David Howarth (Cambridge, Liberal Democrat)

I thank the Minister for that assurance, although I am not sure that it is enough to ensure the independence of the commission, especially if it will get into trouble for complaining about conditions governing its own budget or, at the very least, be worried about whether making a complaint would make the problem of its budget worse the following year.

Angela Smith (Minister of State (Third Sector), Cabinet Office; Basildon, Labour)

It is embarrassing to see so much cynicism in just one hon. Member. The report is to be made to Parliament and it will be for Parliament to make a judgment on whether it thought the funding was adequate. I do not think that Parliament would wish to take action against the commission in any way at all; I think that Parliament would expect the commission to make a response on the adequacy of its funding. Obviously, the Government are bringing this forward, making sure that there is full independence for the commission and putting it into statute, so they want the commission to be an independent body and to function well. I can, thus, allay the hon. Gentleman's fears on that account.

The provisions in the Bill do not, in any way, affect the commissioner's access to the Public Administration Committee. That is an important and influential safeguard for the commissioner's role in regulating the Executive. As the hon. Gentleman mentioned, the Joint Committee recommended two amendments to the draft Bill's schedule in respect of commissioners. The first was for a requirement that the commissioners should be appointed on merit, on the basis of fair and open competition. The second was that compensation for loss of office should be extended to all commissioners, rather than just the first commissioner. The Government accepted both those recommendations, and the published schedule to the Bill incorporates those amendments. In addition, the Minister for the Civil Service must consult the First Ministers of Scotland and Wales and the relevant Opposition leaders.

Question put and agreed to.

Schedule 1 accordingly agreed to.